Showing papers on "Judicial opinion published in 2016"

Sentiment Analysis and Opinion Mining: A Survey

Abstract: In this age, in this nation, public sentiment is everything. With it, nothing can fail; against it, nothing can succeed. Whoever molds public sentiment goes deeper than he who enacts statutes, or pronounces judicial decisions (Abraham Lincoln, 1858 ) [1]. It is apparent from President Lincoln's well known quote that legislators understood the force of open assumption quite a while prior. In today world, the Internet is the main source of information. An enormous amount of information and opinion online is scattered and unstructured with no machine to arrange it. Because of demand the public to know opinions about exact product and services, political issues, or social scientists. That’s led us to study of field Opining Mining and Sentiment Analysis. Opining Mining and Sentiment Analysis have recently played a significant role for researchers because analysis of online text is beneficial for the market research political issue, business intelligence, online shopping, and scientific survey from psychological. Sentiment Analysis identifies the polarity of extracted public opinions. This paper presents a survey which covers Opining Mining, Sentiment Analysis, techniques, tools and classification.

Predicting judicial decisions of the European Court of Human Rights: a Natural Language Processing perspective

Abstract: Recent advances in Natural Language Processing and Machine Learning provide us with the tools to build predictive models that can be used to unveil patterns driving judicial decisions. This can be useful, for both lawyers and judges, as an assisting tool to rapidly identify cases and extract patterns which lead to certain decisions. This paper presents the first systematic study on predicting the outcome of cases tried by the European Court of Human Rights based solely on textual content. We formulate a binary classification task where the input of our classifiers is the textual content extracted from a case and the target output is the actual judgment as to whether there has been a violation of an article of the convention of human rights. Textual information is represented using contiguous word sequences, i.e., N-grams, and topics. Our models can predict the court’s decisions with a strong accuracy (79% on average). Our empirical analysis indicates that the formal facts of a case are the most important predictive factor. This is consistent with the theory of legal realism suggesting that judicial decision-making is significantly affected by the stimulus of the facts. We also observe that the topical content of a case is another important feature in this classification task and explore this relationship further by conducting a qualitative analysis.

Neuroscience and behavioral genetics in US criminal law: an empirical analysis.

Abstract: The goal of this study was to examine the growing use of neurological and behavioral genetic evidence by criminal defendants in US criminal law. Judicial opinions issued between 2005-12 that discussed the use of neuroscience or behavioral genetics by criminal defendants were identified, coded and analysed. Criminal defendants are increasingly introducing such evidence to challenge defendants' competency, the effectiveness of defense counsel at trial, and to mitigate punishment.

The Supreme Court, the Media, and Public Opinion: Comparing Experimental and Observational Methods

Abstract: Can Supreme Court rulings change Americans’ policy views? Prior experimental and observational studies come to conflicting conclusions because of methodological limitations. We argue that existing studies overlook the media’s critical role in communicating Court decisions and theorize that major decisions change Americans’ opinions most when the media offer one-sided coverage supportive of the Court majority. We fielded nationally representative surveys shortly before and after two major Supreme Court decisions on health care and immigration and connected our public opinion data with six major television networks’ coverage of each decision. We find that Court decisions can influence national opinion and increase support for policies the Court upholds as constitutional. These effects were largest among people who received one-sided information. To address selection concerns, we combined this observational study with an experiment and find that people who first heard about the Court decisions throug...

Justice Is Less Blind, and Less Legalistic, than We Thought: Evidence from an Experiment with Real Judges

Abstract: We experimentally investigate the determinants of judicial decisions in a setting resembling real-world judicial decision making. We gave US federal judges 55 minutes to adjudicate a real appeals case from an international tribunal, with minor modifications to accommodate the experimental treatments. The fictitious briefs focused on one easily understandable issue of law. Our 2 × 2 between-subject factorial design crossed a weak precedent and legally irrelevant defendant characteristics. In a survey, law professors predicted that the precedent would have a stronger effect than the defendant characteristics. In actuality, the precedent had no detectable effect on the judges’ decisions, whereas the two defendants’ affirmance rates differed by 45 percent. Judges’ written reasons, on the other hand, did not mention defendant characteristics, focusing instead on the precedent and other legalistic and policy considerations.

Judging adaptive management practices of U.S. agencies

Abstract: All U.S. federal agencies administering environmental laws purport to practice adaptive management (AM), but little is known about how they actually implement this conservation tool. A gap between the theory and practice of AM is revealed in judicial decisions reviewing agency adaptive management plans. We analyzed all U.S. federal court opinions published through 1 January 2015 to identify the agency AM practices courts found most deficient. The shortcomings included lack of clear objectives and processes, monitoring thresholds, and defined actions triggered by thresholds. This trio of agency shortcuts around critical, iterative steps characterizes what we call AM-lite. Passive AM differs from active AM in its relative lack of management interventions through experimental strategies. In contrast, AM-lite is a distinctive form of passive AM that fails to provide for the iterative steps necessary to learn from management. Courts have developed a sophisticated understanding of AM and often offer instructive rather than merely critical opinions. The role of the judiciary is limited by agency discretion under U.S. administrative law. But courts have overturned some agency AM-lite practices and insisted on more rigorous analyses to ensure that the promised benefits of structured learning and fine-tuned management have a reasonable likelihood of occurring. Nonetheless, there remains a mismatch in U.S. administrative law between the flexibility demanded by adaptive management and the legal objectives of transparency, public participation, and finality.

The Influence of Public Sentiment on Supreme Court Opinion Clarity

Abstract: When the Supreme Court makes a decision contrary to public opinion, justices are likely to worry the Court will lose public support. So, what are justices to do? One option, of course, is to move the policy content of the opinion closer to public sentiment. Yet, we know that justices seek, among other things, ideological goals (Epstein and Knight 1998) and would prefer to effectuate them when feasible. Another option, then, is to seek their policy goals while mitigating the possible loss of public support. It is on this perspective we focus. We argue that justices, when they rule contrary to public opinion, will vary the clarity of majority opinions in an effort to maintain public support as best they can. While the Court has a deep reservoir of diffuse support, frequent counter-majoritarian decisions could leave it at risk (Gibson et al. 2003: 365). By writing a clear opinion when ruling against public sentiment, justices can better inform the public why they so decided, and thereby manage any immediate loss of support they might suffer-or, think they might suffer (see, e.g., Nelson, N.d.).We develop a measure of opinion clarity based on automated textual readability scores that we validate using human raters. Our results show public opinion strongly influences the content of Court opinions. Importantly, we analyze both macro- and case-level public opinion, providing broad-based support for our findings. In one approach, we compile an aggregate data set that includes Court decisions from 1952 to 2011, and execute a time series analysis that scrutinizes opinion clarity as a function of yearly changes in public mood. In a second approach, we rely on issue-specific public opinion polls that directly relate to individual Supreme Court cases (Marshall 1989, 2008). Using these microlevel data, we analyze the content of specific majority opinions to determine how public opinion influences Supreme Court opinion clarity. Both empirical analyses offer considerable support for our argument that justices write clearer opinions when they deviate from public sentiment. What is more, our measure of opinion clarity is one scholars who study other institutions could employ.These findings are important for a number of reasons. First, it is the content of the Supreme Court's opinions that influence society's behavior. Actors within society look to those opinions to determine whether they can engage in particular behaviors (Spriggs and Hansford 2001). "[S]cholars, practitioners, lower court judges, bureaucrats, and the public closely analyze judicial opinions, dissecting their content in an endeavor to understand the doctrinal development of the law" (Corley et al. 2011: 31). People must understand the content of opinions and, as such, scholars should understand the factors that influence those opinions. Our results speak to how the Court crafts the content of those opinions.Second, the results address the Court as one institution in a broader political system where justices know they do not necessarily have the last word. That is, our approach shows how the Court is tied into a larger network of actors and audiences in the American political and legal system (Baum 2006). Rather than focus on how justices influence others, we show how others (i.e., the public) can influence justices. At the same time, knowing justices intentionally alter the language of their opinions to overcome audience-based obstacles tells us something that speaks to broader normative debates about democratic control. Justices appear to do what they can to overcome obstacles from public opinion. So, while public opinion seems to influence their behavior, justices appear able to circumvent the constraints of public opinion by tailoring their messages. For those interested in ensuring more accountability of judges, these results suggest such control is perhaps more difficult than previously believed.Third, understanding how the Court alters its opinions can inform us about how the Court acquires and maintains judicial legitimacy. …

An OWL ontology library representing judicial interpretations

Abstract: The article introduces JudO, an OWL2 ontology library of legal knowledge that relies on the metadata contained in judicial documents. JudO represents the interpretations performed by a judge while conducting legal reasoning towards the adjudication of a case. To the aim of this application, judicial interpretation is intended in the restricted sense of the acts of judicial subsumption performed by the judge when he considers a material instance (token in Searle's terminology), and assigns it to an abstract category (type). The ontology library is based on a theoretical model and on some specific patterns that exploit some new features introduced by OWL2. JudO provides meaningful legal semantics, while retaining a strong connection to source documents (fragments of legal texts). The application task is to enable detection and modeling of jurisprudence-related information directly from the text, and to perform shallow reasoning on the resulting knowledge base. The ontology library is also supposed to support a defeasible rule set for legal argumentation on the groundings of judicial decisions.

Do judges react to the probability of appellate review? Empirical evidence from trial court procedures

Abstract: The appellate review system is intended to serve as an efficient remedy for imperfect judicial decision making. However, it can fulfil this task only when appeals are ex ante unpredictable to the judge, and thus can be expected to occur primarily in case of a bad verdict. Using data from case records of a German trial court, we show that the probability of appeal can be predicted based on easily observable exogenous factors. Controlling for the complexity of a legal case, we find that judges also tend to decrease their effort when the ex ante probability of appeal is low. Thus, our empirical evidence indicates an inefficiency in the appellate review system because trial judges allocate their effort to cases not exclusively according to case complexity, but particularly according to the ex ante probability of being reviewed.

Courting the President: How Circuit Court Judges Alter Their Behavior for Promotion to the Supreme Court

Abstract: We examine whether circuit court judges sacrifice policy purity for career goals. We compare the behavior of contender judges–those most likely to be elevated to the Supreme Court–during vacancy periods with their behavior outside vacancy periods. We also examine the behavior of noncontender judges during those same times. The data show that during vacancy periods, contender judges are more likely to vote consistently with the president's preferences, to rule in favor of the United States, and to write dissenting opinions. Noncontender judges fail to evidence such behavior. These findings provide empirical support for the argument that federal judges adapt their behavior to specific audiences, and provide new avenues for research into judges' goals and the role of audiences in judicial decision making.

The Relationship between Judicial Staff and Court Performance: Evidence from Brazilian State Courts

Abstract: To handle increasing caseloads, the judicial systems of several countries have adopted three main strategies: developing new standards and judicial procedures; investing in information and communication technologies; and hiring additional judicial staff. This paper investigates the impact of this third strategy on the performance of Brazilian courts. We use multiple regression analysis to test an array of related hypotheses about the complex interactions between the number of judicial staff and court productivity. The empirical research uses ten-year (2003-2012) data from 27 Brazilian courts. The main findings indicate that the number of judicial assistants has a positive influence on court productivity, and the number of assistants mitigates the positive relationship between court caseload and court productivity. The results are discussed and further studies are suggested.

Public Opinion, Public Support, and Counter-Attitudinal Voting on the U.S. Supreme Court

Abstract: Key questions in American politics are whether and why the Supreme Court is responsive to public opinion. Past scholarship has suggested a strong relationship between changes in public opinion and the ideological direction of the Court’s decisions. Here we focus on a slightly different question and examine why justices are willing to follow public opinion, even at the expense of their own ideological preferences. To this end we examine whether justices are willing to vote contrary to their preferences when those preferences are out of step with prevailing public opinion. We employ a novel issue-specific measure of public mood, and we find that justices follow public opinion to shore up broader institutional approval. But the constraint of public opinion is not static over time. Rather, justices are uniquely responsive to public opinion when public support for the Court is low or case salience is high.

Courting faith : an empirical study of lawyers' perceptions of the relationship between religion and judicial decision-making

Abstract: The traditional view of judicial behaviour posits that only the evidence and the law form the basis of a judicial decision. However, research shows that judging is influenced by a variety of legal and non-legal factors, particularly in cases involving judicial discretion. Whilst there is a wealth of empirical research that explores the interplay between religion and judging in other jurisdictions, particularly in the US where judges’ faith has been found to affect judicial decisions in certain legal areas, much less scholarly attention has been paid to this relationship in the context of the British courts. This socio-legal study uses semi-structured interviews with barristers and an online questionnaire completed by solicitors, both predominantly practising in employment or family law, to explore whether the religious beliefs of judges are perceived by lawyers to influence individual judicial decision-making in the English courts and, if so, how. The study finds that judges’ faith is perceived to potentially influence the decisional process in cases which, directly or indirectly, involve religious issues. However, the effect of such influence is considered to be marginal, being generally confined to that which is unconsciously manifested and not determinative of case outcomes. Constraints on judging are thought to be central in ensuring that judicial decision-making remains within the limits of the law. Whilst lawyers are largely confident that the influence of religious beliefs is not a cause of concern in judicial decision-making in the English courts, the evolving religious and legal landscapes in Britain means that there is no room for complacency. Judicial training, both in relation to understanding religiously sensitive issues and the role played by unconscious biases, is vital to ensure that judgments are reached on the basis of sound legal reasoning and not on the basis of judges’ personal proclivities.

Some Thoughts on the Study of Judicial Behavior

Abstract: B. Other Topics and Research Questions Work on the individual judge will continue; it is that essential to the judicial behavior project. At the same time, there has been an explosion of research on other topics. Below I very briefly reference ten: (1) judicial independence and dependence, (2) judicial selection and retention, (3) access to court, (4) opinions and precedent, (5) collegial courts, (6) the hierarchy of justice, (7) executives and legislatures, (8) litigants, attorneys, and interest groups, (9) public opinion and macroevents, and (10) implementation and efficacy of judicial decisions. (187) Before turning to these topics, three notes are in order. First, I cannot do justice to any one of them. (188) My goal is rather to supply a bit of information on each if only to induce you to read more deeply. The footnotes provide some pointers (though if I tried to cite all the relevant studies, I would need an entire volume, maybe two, of the 'William & Mary Law Review). Second, it is highly unlikely that my list of ten is inclusive. In fact, I know I exclude some topics on the ground that they do not fit squarely in the area of judicial behavior. One example is the analysis of clerks and other judicial staff. Although some of the studies attempt to draw a connection between the actors and the choices judges make, (189) many of them are devoted to studying the actors themselves. (190) Finally, although I take each topic in turn, the ten (eleven if we count "The Judge") are far from mutually exclusive. This is entirely evident from the material that follows, so let me provide just one example--from Ramseyer and Rasmusen's study on Japanese judges. (191) Because the authors demonstrate that the judges' careers hinge on deference to the government, (192) this work makes a contribution to the literature on courts and elected officials. But it just as easily fits into the literature on "The Judge" as it speaks to the judges' interest in promotion and other careerist motivations. (193) 1. Judicial Independence and Dependence Studies focusing on judicial independence vary in their concerns. Some attempt to define the term "judicial independence," though there now seems to be convergence on conceptualizing it as the ability of judges to behave sincerely, whatever their sincere preferences may be and regardless of the preferences of other relevant actors, without fear of reprisal and with some confidence that political actors will enforce their decisions. (194) Other work has attempted to develop and analyze measures of de jure (for example, a constitutional guarantee of life tenure) or de facto (expert assessments, for instance) judicial independence (195) to understand why societies are more or less prone to adopt institutions associated with judicial independence (196) and to connect judicial independence to economic prosperity and human rights. (197) More relevant to the analysis of judicial behavior is research testing the assumption that de jure guarantees of judicial independence, in fact, lead to a more "independent" judiciary. Much of this work explores the relationship (or lack thereof) between measures of de jure and de facto independence (198)--for example, is there a connection between giving judges life tenure and experts rating the judiciary as "independent"? Fewer studies consider the relationship between de jure measures and actual judicial behavior (though the literature I referenced earlier on judicial elections in the states is an exception; more on this momentarily)--for example, is it the case, as the economic literature assumes, that courts with de jure independence are more likely to protect rights against government interference in actual judicial decisions? Both lines of research are equally interesting, but at this stage in the field's development, I would welcome more on the latter. 2. The Selection and Retention of Judges Societies have composed an impressive array of institutions to govern the selection and retention of judges--from life tenure, to a single nonrenewable term, to periodic election and reelection by the electorate. …

Judicial Decision Making as Knowledge Work

Abstract: Epstein, Lee, William Landes and Richard Posner. 2013. The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. Cambridge, MA: Harvard University Press. 440 pp. Cloth, $49.95. Posner, Richard. 2008. How Judges Think. Cambridge, MA: Harvard University Press. 400 pp. Paper, $21.00. I review two recent studies of judicial behavior, Posner's How Judges Think (2008) and Epstein, Landes, and Posner's Behavior of Federal Judges (2013). Epstein, Landes, and Posner's volume, the empirically richer of the two books, builds on the conceptual model for explaining judicial behavior put forward in Posner's How Judges Think. I discuss this conceptual model and argue in outline for an alternative model, complementary in part and antagonistic in part to the behaviorist research agenda. Posner and Epstein, Landes, and Posner argue for viewing the judge as a rational actor in a labor market. I argue that analyzing judicial decisions from the perspective of the sociology of knowledge, without axiomatically assuming rationality, will allow us to bring more evidentiary sources to bear on the problem and will allow for a more adequate test of competing theoretical interpretations. Law and society scholars are well positioned to contribute to this line of inquiry.

Too Big to Jail? Company Status and Judicial Bias in an Emerging Market

Abstract: Manuscript Type Empirical Research Question/Issue This paper examines prosecutorial and judicial decisions to incarcerate the suspect upon indictment or conviction of embezzlement or breach of fiduciary duty in Korean firms. Our aim is to evaluate whether the judicial system is biased in favor of large business groups or chaebols in criminal cases. Research Findings/Insights Using a sample of 84 indictments and 78 convictions for embezzlement or breach of duty against managers of publicly traded firms in Korea between 2004 and 2008, we find that the probability of incarceration is much smaller if the indicted are associated with large business groups or large firms. In non-large business group firms, initial disclosure of such accusation results in an average loss of a quarter of market value, and three quarters of convicted individuals are eventually removed from managerial positions. However, we observe neither such a loss nor turnover in large business group member firms. Theoretical/Academic Implications We identify a new determinant of judicial bias, namely the status of the company, in addition to individual-level social status or class that has been examined in the previous literature. Such bias may reflect potential future career concerns of the prosecutors and judges who later become lawyers. The results also suggest that an additional motivation behind empire building or size-maximizing behavior of top management is to effectively implement a legal strategy, a form of non-market strategy. Practitioner/Policy Implications Corporate managers may apply our findings to manage legal risks and to formulate nonmarket strategies. However, biases in individual sentences may create system risk and economy-wide inefficiencies. In order to reform the legal system, policymakers should take into account the externalities in individual sentencing decisions.

Investor-State Dispute Settlement in TTIP from the Perspective of a Public Law Theory of International Adjudication

Abstract: The article provides an assessment of the European Commission’s recent proposal for reform in investor-state dispute settlement (ISDS) under the Trans-Atlantic Trade and Investment Partnership (TTIP). It does so on the basis of a public law theory of international adjudication that presents international courts and tribunals as multifunctional actors who exercise public authority and therefore require democratic legitimacy. The article introduces this understanding against the background of other, traditional basic conceptions of international courts and tribunals. It then focuses on the prospects of appellate review and politico-legislative input under the European Commission’s proposal for TTIP, as well as on the provisions pertaining to the arbitrators, the judicial process, and the judicial decisions. While the net merits of ISDS in the Trans-Atlantic context are uncertain, the article submits that the European Commission’s proposal provides, in principle, a welcome response to some of the more egregious shortcomings of investor-state arbitration.

How Policy Shapes Politics: Rights, Courts, Litigation and the Struggle over Injury Compensation

Abstract: How Policy Shapes Politics: Rights, Courts, Litigation and the Struggle over Injury Compensation. By Jeb Barnes and Thomas F. Burke. New York: Oxford University Press, 2015. 256 pp. $39.95 cloth.Political scientists have had a longstanding project of assessing the significance of courts and litigation in the American political landscape (Haltom and McCann 2004; Kagan 2009; Silverstein 2009). Many of the studies addressing this question focus on legal campaigns brought by social movements, where new rights are part of a larger symbolic struggle in addition to narrower legal claims for recognition (McCann 1994; Rosenberg 2008). While most of this research has traditionally focused on courts, more recent studies by Sean Farhang (2010) and Charles Epp (2009) have de-centered the judiciary and concentrated on the relationship among courts and other state actors in the legislature and administrative agencies, emphasizing the mechanisms that shape judicial politics.In their book, How Policy Shapes Politics, Barnes and Burke join this debate to address some of the pressing questions that remain open: Does litigation diminish activists' interest in pursuing other political strategies? Does litigation undermine political solidarity by reducing collective problems into individual disputes about personal injuries? Does judicial politics generate counter-productive backlash that ultimately undermines the parties' broader political goals? This debate is at something of an impasse, with competing case studies that have findings that answer these questions "Yes," "No," and "Sometimes." Barnes and Burke offer an elegant and original research design that addresses these questions in a theoretically sophisticated way, offering solid insights into the mechanisms of judicial politics.Barnes and Burke's study focuses on the issue area of injury compensation. This issue space does not generate much in the way of popular protest, but as the authors show, well-organized interests regularly engage in political contestation on these matters across all the branches of government. Barnes and Burke focus their analytical attention on formal political authority that depends on specific laws and rules. Their research design compares two modes of political decision-making that are organized in very different waysadversarial legalism and bureaucratic legalism. In their rendering, adversarial legalism is characterized by the disputing parties' active participation in decision-making. When the parties control the presentation of evidence and experts, policy materializes from vague laws being applied to particular sets of circumstances. Barnes and Burke's example of adversarial legalism is asbestos injury compensation, which has largely emerged from thousands of lawsuits. Conversely, bureaucratic legalism follows a hierarchical model, where clear rules and precise standards, developed in a central hierarchy, are routinely applied to cases. Barnes and Burke rely on the example of Social Security Disability Insurance (SSDI). By comparing these two forms of policy making, Barnes and Burke can assess the impact of adverse legalism on the kinds of politics surrounding these different forms of injury compensation.Their findings suggest that adversarial legalism is not dramatically different than other forms of policy making. For example, litigation does not necessarily inhibit the pursuit of other political strategies. In their case study of asbestos injury compensation, they show that litigation is a central component of the policy environment. Judicial decisions in these cases had a long-lasting impact on policy regarding the liability of insurers. In addition, bankruptcy courts designed Chapter 11 Trusts, taking funds from asbestos companies declaring bankruptcy and setting up administrative programs to process individual claims against particular companies. …

Centralisation of Power in the Pursuit of Law-based Governance: Legal Reform in China under the Xi Administration

Abstract: Legal reform has been a prominent point on the agenda since Xi Jinping took over the leadership of the Chinese Communist Party (CCP).(1) At the Third Plenum of the Party's 18thNational Congress in 2013, Xi proposed comprehensively pursuing four strategic political goals under the slogan "Four Comprehensives" (sige quanmian ). Two of the political goals, namely, to "comprehensively strengthen discipline of the Party" (quanmian congyan zhidang) and to "comprehensively rule the country according to the law" (quanmian yifa zhiguo), set the grounds for the latest round of legal reform.The Central Leading Group for Deepening Overall Reform (Zhongyang quanmian shenhua gaige lingdao xiaozu) was set up to carry out the "Four Comprehensives." Deepening judicial reform in the direction of building a just and efficient judiciary that the citizens can trustis regarded as an integral part of the plan to comprehensively rule the country according to the law.(2) In fact, 13 out of the 19 plenary sessions of the Leading Group involved the topic of judicial reform from 2014 to 2015.(3)The call for "ruling the country according to the law" can be dated back to September 1997, when Jiang Zemin at the 15th CCP's National Congress addressed the need to construct the socialist state in accordance with the law (jianshe shehuizhuyi fazhi guojia).(4) In recent years, the Chinese term fazhi ?? has re-emerged frequently in public discourse. Yet, observers of Chinese politics realise that the concept of fazhi by the Xi administration might not be best captured by the notion of "rule of law," but would be better interpreted as "rule by law." This article is intended to chart the details and implications of legal reform in the broader context of the pursuit of law-based governance and discusses the notion of fazhiunder Xi's leadership.A legal system dominated by the CCPThe Chinese legal institution is comprised of the Supreme People's Court (SPC), the Supreme People's Procuratorate (SPP), and the Ministry of Public Security, together with their relevant local agencies. Constitutionally, the National People's Congress (NPC) exerts oversight over the SPC and SPP, but such oversight is more nominal than substantial. A distinctive feature of China's legal system is the presence of the Central Political and Legal Affairs Commission of the CCP and its local Political and Legal Affairs Committees (PLAC) to ensure the Party's dominance over the legal system. The PLAC is vested with extensive power to oversee the courts and other legal institutions at both the ideological and organisational levels.(5) It has a record of occasionally interfering in criminal cases,(6) and of allowing the bureau of public security to overshadow the procuracy and the court in the legal process.(7)The extent of the PLAC's power raises concerns about the vulnerability of judicial decisions to undue external influence as well as the risk of convicting innocent persons given the urge for local officials to close cases in order to achieve political targets.(8)Observers point out that judicial corruption and wrongful convictions were particularly commonplace during the tenure of Zhou Yongkang as Vice-secretary and Secretary of the Central PLAC (2002-2012). (9)The presence of the PLAC entails the question of the ambiguous relationship between the CCP and state laws. As Prof. Fu Hualing argues, the foundation of the constitutional order in China is the rule of the Party. This political reality places the Party Constitution over the state Constitution, although CCP cadres are supposed to act in accordance with the legal framework they have created. (10) In this sense, the CCP politically transcends the legal system, and the responsibility for disciplining CCP cadres lies principally with the Party's Central Commission for Discipline Inspection (CCDI). Indeed, incriminated Party cadres are placed under investigation through an extra-legal procedure called "double designation" (shuanggui), where they are held in a "designated place" at a "designated time" until it is decided whether to expel them from the Party and/or hand them over to the courts. …

The Transmission of Legal Precedent among State Supreme Courts in the Twenty-First Century

Abstract: Theories of legislative policy diffusion are well formed and extensively tested, but scholars know far less about the diffusion of legal policy and reasoning. Three decades ago, Caldeira’s “The Tra...

Judicial Impartiality and Independence in Divided Societies: An Empirical Analysis of the Constitutional Court of Bosnia-Herzegovina

Abstract: The role of Constitutional Courts in deeply divided societies is complicated by the danger that the salient societal cleavages may influence judicial decision-making and, consequently, undermine judicial independence and impartiality. With reference to the decisions of the Constitutional Court of Bosnia-Herzegovina, this article investigates the influence of ethno-nationalism on judicial behaviour and the extent to which variation in judicial tenure amplifies or dampens that influence. Based on a statistical analysis of an original dataset of the Court’s decisions, we find that the judges do in fact divide predictably along ethno-national lines, at least in certain types of cases, and that these divisions cannot be reduced to a residual loyalty to their appointing political parties. Contrary to some theoretical expectations, however, we find that long-term tenure does little to dampen the influence of ethno-nationalism on judicial behaviour. Moreover, our findings suggest that the longer a judge serves on the Court the more ethno-national affiliation seems to influence her decision-making. We conclude by considering how alternative arrangements for the selection and tenure of judges might help to ameliorate this problem.

Measuring Precedent in a Judicial Hierarchy

Abstract: The Supreme Court of the United States primarily impacts society through doctrine created or sustained in their opinions (Hall 2010). Any understanding of the Court's role in American society must therefore include an understanding of which precedents exert the most legal influence, and why. Scholars overwhelmingly make these determinations based on how often subsequent Supreme Court opinions cite a given precedent. When scholars analyze precedents in this manner for "legal significance," (Fowler and Jeon 2008) does this term mean that a precedent is well-known? Or does it mean that other judges defer to the precedent's holding regularly? While noteworthiness and jurisprudential influence could be correlated, they are distinct in theory.It cannot be assumed that measuring the general relevance of a given precedent also captures its doctrinal significance. Approaches relying on citations in Supreme Court opinions can measure general relevance quite well, however, they are less suitable for capturing legal authority. In support of this contention, I present an analysis of original data on the treatment of every Court precedent 1946-2010 in all three levels of the federal judicial hierarchy.Analysts must make two methodological choices when measuring legal precedent. First, in any hierarchical legal system, analysts must decide at which level or levels of that system they wish to measure the significance of individual precedents. In the United States, judges at the district, circuit, and Supreme Court levels all face different operative incentives and constraints (Baum 1994). Due to these constraints, perhaps district judges are more likely than others to allow legalistic concerns to predominate when crafting opinions. Similarly, in other contexts, it could be expected that the lower rungs of any judicial hierarchy would be least able to innovate ideologically, due to resource and opportunity constraints (Choi, Gulati, and Posner 2012; Epstein and Knight 2013; Pinello 1999; Wold and Caldeira 1980).The second choice analysts face is whether to consider the language of the citing opinions directly. Some citations to precedent are incidental, others are negative, and some are deferential. Fowler et al. (2007); Fowler and Jeon (2008), and Patty, Penn, and Schnakenberg (2013) focus on a citation's networked position and analyze all types of citations, positive, negative, and neutral, together. Alternatively, Hansford and Spriggs (2006) consider the nature of citations when measuring precedent, at the Supreme Court level exclusively. Considering only deferential treatments may better capture jurisprudential treatments than would considering all citation types together. Ultimately, a reasonable method for measuring the broader jurisprudential significance of Supreme Court precedent involves aggregating how often a precedent is followed (according to Shepard's Citations) across all three levels of the federal judicial hierarchy.1 Conversely, when analysts set out to measure which precedents are relevant to a court in a more broad sense (Clark and Lauderdale 2012; Fowler et al. 2007; Fowler and Jeon 2008), considering all citation types appears to be the better option.I illustrate the tradeoffs of these two choices by exploring how varying methods of measuring precedent track fractious, logically inconsistent decisions. I discuss the definition of these paradoxical decisions, known as discursive dilemmas or doctrinal paradoxes (Kornhauser and Sager 1986; Pettit 2001; Stearns 2000), in detail below. Precedents stemming from a paradox are by definition ambiguous, and are, therefore, quite challenging to follow in a jurisprudential manner.In brief, paradoxes are decisions for which every possible rationale for the Court's judgment is rejected by a majority of the justices, yet the judgment itself still gets a majority vote through the aggregation of votes by desired outcome. Lower courts struggle to follow paradoxes because it is unclear which line of reasoning ought to apply (Post and Salop 1992). …

Adolescent autonomy revisited: clinicians need clearer guidance

Abstract: In 1996, Brazier and Bridge raised the question 'is adolescent autonomy truly dead and buried' following judicial decisions which had seemed to reverse the Gillick-inspired trend for greater child autonomy in healthcare. Subsequent decisions by the courts have reinforced the view that those below 18 years in England and Wales remain children with limited rights to refuse treatment compared with adults. This is at variance with the daily experience of those working with young people who increasingly seek to actively involve them in making freely informed decisions about their healthcare, in accordance with the principles enunciated in the UN Convention of the Rights of the Child and the UK Children Acts. We review the derivation of the law in England and Wales in this area, in the light of another recent family court judgement enforcing treatment on a 'competent' child without his or her consent and ask: 'How can the Common Law and the ethical practice of those caring for young people have diverged so far?' Either young people can decide whether to have a recommended treatment, or they cannot. Given Ian McEwan's book, the Children Act, has stimulated wider social debate in this area might this be an opportune moment to seek public policy resolution with regards to healthcare decision making by young people? We argue that events since the Gillick case have underlined the need for a comprehensive review of legal policy and practice in this area. While absolute autonomy and freedom of choice are arguably inconsistent with the protection rights that society has agreed are owed to children, healthcare practitioners need clarity over the circumstances in which society expects that autonomous choices of adolescents can be overridden.

The Case Salience Index, Public Opinion, and Decision Making on the U.S. Supreme Court

Abstract: Recent work on the U.S. Supreme Court argues that Supreme Court decision making is constrained by several factors, including public opinion. These constraints are not uniform across cases, however, and some suggest that public opinion may only act as a constraint conditional on the salience of the case. Using a dichotomous measure of salience, prior studies finds mixed results as to whether the Court may alter its decisions in cases of low or high salience. By updating our previous measure of salience (Collins and Cooper 2012) and recasting it with slightly different measurement properties, we find that public opinion influences court decisions in cases of very low salience and cases of very high salience. This research has important implications for our understanding of whether the Supreme Court is insulated from public pressures or if it simply reflects the public mood of the day. The analysis introduced here also provides a useful example of a new salience dataset that should be valuable to jud...

Is the Expert Admissibility Game Fixed?: Judicial Gatekeeping of Fire and Arson Evidence

Abstract: Anecdotal evidence claims that in criminal cases, trial judges admit the prosecution's expert witnesses more readily than the defendants', and in civil cases the reverse is true; judges exclude plaintiffs' experts more often than civil defendants' experts. This occurs despite the fact that, with few exceptions, the same rules of admissibility apply to all parties and, in most jurisdictions, across criminal and civil cases. This article empirically tests this differential by reviewing judicial decisions to admit or exclude evidence holding the type of expert testimony constant, fire and arson evidence, across criminal and civil cases in the United States. The study examines the admissibility of fire and arson investigation experts in criminal and civil cases across all legal parties in fifty‐seven federal and state opinions in the United States. The findings offer empirical support of a bias in criminal cases and in civil cases which present expert witnesses at trial, and is less pronounced, but still evident, on appeal. Specifically, the role of the party that offers the evidence has a profound effect on whether arson evidence is admitted, even when factors around the judge's political affiliation, attorney experience, expert qualifications, and rules of evidence are taken into account.

The effect of the 'war on organised crime' on the Mexican federal judiciary : a comparative case study of judicial decision-making

Abstract: Using a comparative case study design, this thesis explores the impact on the Mexican federal judiciary of steep rises in violent crime, proliferation of armed organised crime groups, greater involvement of the military in crime control activities and the government’s ‘war on organised crime’. The thesis develops ‘enemy penology’ as a theoretical framework based on the observation that the Mexican government has increasingly conceptualised offenders as enemies and called for an explicitly militarised criminal justice response. Drawing on this theoretical framework, the thesis analyses qualitative data from two different sites –a ‘crime control as warfare’ scenario (highly militarised state) and an unchanged context (less militarised state). Findings are examined within the enemy penology framework and also drawing on theories of judicial behaviour and judicial roles in order to explain the overarching finding that judges seem to have insulated themselves from the ‘enemy penology’ promulgated by the government. Analysis of 40 written judgements in drug cases and 28 semi-structured interviews with judges (drawn from a total of 56 interviews achieved during the fieldwork) indicated that decision making, guilt determination and sentencing were almost identical in the two locations despite stark differences in context. In both locations, the study observed an inclination to privilege police evidence, high conviction rates despite poor prosecutorial performance and insufficient evidence, and a tendency to impose minimum sentences. Interviewees discussed these issues as well as the impact of armed criminality, military involvement in crime control and judicial independence. Overall, the Federal judiciary appeared to be not influenced by the enemy penology paradigm reproduced by public officials and criminal policies. Mexican judicial behaviour was found to be strongly shaped by a formalistic and legalistic understanding of judicial duties where accuracy in law interpretation is expected, disregarding other goals, including politics and policy considerations. This understanding is enhanced by the judiciary through strict observance of precedents, reversals and enhancing law-interpreter and ritualist judicial roles. Nonetheless, the empirical data also showed that judges’ views and opinions are informed by strategic goals, attitudes, motives, managerial needs and the pursuit of self-respect and recognition. In sum, examining court judgements and judges’ views about deciding cases in the light of the prevalent ‘enemy penology’ provided a rich understanding of the way decision-making in criminal matters is constructed by judges as well as the complex and often contradictory layers that comprise the image and role of the Mexican federal judge.

How Courts Structure State-Level Representation

Abstract: I examine how federal and state courts influence the relationship between state-level public opinion and policy. The system of dual federalism, combined with the sweeping power of judicial review, allows state and federal courts to establish the types of policies that states are constitutionally allowed to implement. In particular, federal courts can set "federal floors" for policy, below which no state can go. State courts, in turn, can raise the level of this floor. As a result, both federal and state courts can shape the extent to which state policy can match the preferences of the median voter in a given state. I demonstrate this important role of courts by analyzing data on public opinion, judicial decisions, and state-level policy on the issue of abortion, from 1973 to 2012. I show that changes in the set of allowable abortion restrictions, according to the combined decisions of federal and state courts, significantly affect whether states implement majority-preferred policies. These results demonstrate the importance of placing courts in the larger study of state-level representation.

Scope and precedent: judicial rule-making under uncertainty:

Abstract: I develop a formal model of Supreme Court opinion-writing in an environment of uncertainty. In particular, the model captures how the Supreme Court will optimally design the specificity of its lega...