Judicial opinion

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

A neo-Aristotelian notion of reciprocity: about civic friendship and (the troublesome character of) right judicial decisions

Abstract: This chapter argues that a neo-Aristotelian approach can play a valuable role in accounting for reciprocity in adjudication. It can solve the central flaws that an “adjudication as applied moral theory” approach faces. In addition, the author asserts that a neo-Aristotelian approach to adjudication needs the concept of civic friendship in order to really account for reciprocity in adjudication. Citizens will have a reason to accept the painful burden of a particular judicial decision if the decision is made by a judge who is both judicially wise and a civic friend.

Res Judicata in the Court of Justice Case-Law: Balancing Legal Certainty with Legality?

Abstract: Forms of res judicata - Unwritten principle of EU law - National procedural autonomy v. EC supremacy - Revision of decisions v. state liability - Finality of administrative decisions v. judicial decisions - Higher respect for judicial decisions than for administrative decisions - Res judicata not absolute - ECJ itself under demands of legal certainty - Analogy between res judicata rules and rules of direct and indirect effect.

Democracy, the rule of law and judicial review

Abstract: Justifying judicial review of legislatures and executives in western democracies has become a controversial business. Those aspects of rule of law theory which appear to justify judicial review are attacked as undemocratic, in that they tend to replace the will of the people with the will of the judiciary. Where review is based on a set of constitutionally entrenched rights, those rights themselves are regarded as undemocratic; even supporters of rights-based judicial review have tended to concede that the rights, however desirable in some ways, are restrictions on democratic processes, rather than essential parts of democratic constitutional institutions. This seems unnecessarily defeatist. This article seeks to defend judicial review of executive action and of parliamentary legislation, on the basis of a conception of democracy which embodies certain rights rather than being in a state of tension with them. The argument will take the following shape. A sketch of some relevant democratic considerations in Section 1 will conclude with a description of the model of democracy which will form the basis for the remainder of the argument Section 2 will argue that the function of law in providing powers for governments to use entails legal enforcement of the limits of those powers. The limits and their enforcement, it will be suggested, are no more undemocratic than the powers themselves. Section 3 will offer a critique of the claims of government and Parliament to superior democratic status. While it will be suggested that judicial review is not intrinsically undemocratic, Section 4 will briefly consider certain non-inherent defects.

The Labor of Judging: Examining Administrative Law Judge Decisions

Abstract: There has been significant scholarly research on judicial decision making and bureaucratic control but little research on bureaucrats who perform a judicial function, namely, administrative law judges. In this article, we analyze the influences on the decisions of administrative law judges (ALJs) from 1991 to 2006. Using ordered logit, we examine the influence of policy preference and hierarchical and political constraint. We find that ALJs are comparable to Federal District Court judges in that they use ideology in their rulings, are also subject to hierarchical control by higher courts, and that they are constrained by separation of powers influences.