Judicial opinion

About: Judicial opinion is a research topic. Over the lifetime, 5300 publications have been published within this topic receiving 64803 citations.

Hustle and Flow: A Social Network Analysis of the American Federal Judiciary

Abstract: Scholars have long asserted that social structure is an important feature of a variety of societal institutions. As part of a larger effort to develop a fully integrated model of judicial decision making, we argue that social structure-operationalized as the professional and social connections between judicial actors-partially directs outcomes in the hierarchical federal judiciary. Since different social structures impose dissimilar consequences upon outputs, the precursor to evaluating the doctrinal consequences that a given social structure imposes is a descriptive effort to characterize its properties. Given the difficulty associated with obtaining appropriate data for federal judges, it is necessary to rely upon a proxy measure to paint a picture of the social landscape. In the aggregate, we believe the flow of law clerks reflects a reasonable proxy for social and professional linkages between jurists. Having collected available information for all federal judicial law clerks employed by an Article III judge during the "natural" Rehnquist Court (1995-2004), we use these roughly 19,000 clerk events to craft a series of network based visualizations. Using network analysis, our visualizations and subsequent analytics provide insight into the path of peer effects in the federal judiciary. For example, we find the distribution of "degrees" is highly skewed implying the social structure is dictated by a small number of socially prominent actors. Using a variety of centrality measures, we identify these socially prominent jurists. Next, we draw from the extant complexity literature and offer a possible generative process responsible for producing such inequality in social authority. While the complete adjudication of a generative process is beyond the scope of this article, our results contribute to a growing literature documenting the highly-skewed distribution of authority across the common law and its constitutive institutions.

Pathetic Argument in Constitutional Law

Abstract: Pathetic argument, or argument based on pathos, persuades by appealing to the emotions of the reader or listener. In Aristotle’s classic treatment, it exists in parallel to logical argument, which appeals to deductive or inductive reasoning, and ethical argument, which appeals to the character of the speaker. Pathetic argument is common in constitutional law, as in other practical discourse — think of “Poor Joshua!” — but existing accounts of constitutional practice do not provide resources for understanding the place of and limitations upon such appeals when they appear in judicial opinions. This Article begins to fill that gap. Pathetic argument is one of the acceptable modes of persuasion that constitutional argument shares with other deliberative domains, though at its best it can be used to amplify arguments within the set of discourses — text, history, structure, precedent, and consequences — that make constitutional law a distinctive form of politics. Normatively, appeals to emotion are most easily justified in opinions that seek to declare rather than apply law; in separate writings; when addressed to accepted subjects of constitutional argument rather than the ultimate outcome in the case; and when they arouse other-regarding rather than self-regarding emotions. A nuanced account of the proper place of pathetic argument in constitutional law is instrumental to understanding what it means to engage, and not to engage, in constitutional discourse.

On Behalf of the Condemned? The Impact of the NAACP Legal Defense Fund on Capital Punishment Decision Making in the U.S. Courts of Appeals:

Abstract: There is a rich history of scholarship demonstrating that interest groups have influenced judicial policymaking, but there has not been a systematic test of whether a single group has contributed to case outcomes over an entire policy area while controlling for other elements of judicial decision making Additionally, the degree to which extra-legal factors dominate a group's ability to influence judicial policy has not been explored sufficiently Finally, there needs to be an empirical test of the extent to which elements of judicial decision making affect an interest group's choice to litigate This study examines these questions by assessing the NAACP- Legal Defense and Education Fund's (LDF) contribution to the population of 217 capital punishment cases decided in the US Courts of Appeals This article finds that when considered in light of the judicial decisionmaking context, the LDF is not a significant factor influencing case outcomes Moreover, an interaction model suggests that the LDF's ability to affect case outcomes is controlled largely by extra-legal factors Finally, there is no evidence that the LDF's decision to litigate follows a pattern based on this judicial decisionmaking context These findings should prompt future scholars researching a group's litigation campaign to examine his/her subject in the framework of the judicial decision-making process instead of in isolation When David Truman (1951: 479) wrote that "the activities of judicial officers of the United States are not exempt from the processes of group politics," he recognized interest group litigation as a legitimate focus for political science Despite its supposedly counter-majoritarian nature, the federal judiciary, like the popularly accountable branches, is subject to group pressure Subsequent research has uncovered how interest groups influenced the federal judiciary by filing amicus curiae briefs in cases where the group has a stake in the outcome (Caldeira and Wright 1988: 1990; Epstein 1985; Krislov 1963; Kuersten and Songer 1994; O'Connor 1980; and O'Connor and Epstein 1982, 1983), and sponsoring cases in order to achieve a political end (Epstein 1985; Greenberg 1977, 1994; Ivers 1995; Kluger 1975; Manwaring 1962; Meltsner 1973; O'Connor 1980; O'Connor and Epstein 1984; Tushnet 1987; Vose 1958, 1959; Wenner 1982) Once it recognized interest groups as a viable part of the judicial process, the public law field began to explore the extent that interest groups influence policy outcomes in the federal judiciary This article addresses this question and related issues by examining the NAACP Legal Defense Fund's (LDF) impact on capital punishment decisions in the US Courts of Appeals EARLY INTEREST GROUP STUDIES At the vanguard of interest group litigation research is Vose's (1959) study of the NAACP's campaign to end racially restrictive housing covenants Vose forced scholars to reexamine this presumably private litigation battle as a conflict distinguished by a public interest group struggle as fierce as the ones taking place in legislatures Although Vose focused on a political aspect of litigation-interest group activity-he still framed his analysis in the legal model, which perceives judicial decision making through the lens of legal doctrine According to the legal model, the manner in which judges apply precedent to a set of facts and their methods of interpreting statutes and the Constitution are the principal determinants of Judicial decision making1 For African Americans seeking housing equality, the federal judiciary was the best forum in which to wage their fight because success in that branch was not a function of political and electoral strength, fields in which they were lacking Instead, a skillful legal argument and strategy were the major prerequisites to victory in the federal judiciary Vose's group litigation concept was extended by studies operating under the political disadvantage theory, which held that certain groups litigate because they are handicapped in the popularly accountable branches of government …

The protection of minorities and human rights

Abstract: Articles: Conceptual Problems of Rights of Minorities. General Problems of Rights of Minorities. Specific Problems of Minorities. Notes. Book Reviews. Judicial Decisions. Index of Cases. Name Index. Subject Index.