Judicial opinion

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

Keepers of the Covenant or Platonic Guardians? Decision Making on the U.S. Supreme Court

Abstract: How do the justices of the Supreme Court make their decisions? How does the Supreme Court of the United States make its decisions? The answer to these questions may not be the same. In studying judicial decision making, there has been a disconnection between individual and institutional levels of analysis. Lifetime tenure insulates individual justices and permits them to act on their substantive preferences. At the same time, the Court lacks the “sword and purse” and must rely on the other branches to fund or implement its directives. This study develops an integrative model to explain Supreme Court decision making. Using constitutional civil liberties and civil rights cases in the 1953 to 2000 period, conditions favorable to the attitudinal model, we find that institutional decision making is a function of attitudinal, strategic, and legal factors.

Moral Justifications on the Rehnquist Court Hercules, Herbert, and “Druggies” Under the Fourth Amendment

Abstract: What moral justifications do we find in Fourth Amendment judicial opinions of the Rehnquist Court, and what does this suggest about future Court decision making? First, the authors develop the moral justification model of judicial decision making in a literature review, with linguistic patterns and categories by Hercules and Herbert for content analysis. Second, they discuss the methodological strategies used in this content analysis of official opinions of the Court on the Fourth Amendment from 1986 to 1994. Third, from this content analysis, the authors describe the patterns of moral justification in Rehnquist Court Fourth Amendment opinions, including the Court’s assessments of the moral virtue of “druggie” defendants. Finally, they draw conclusions from this analysis for a moral science of the politics of law.

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.

The Role of Case Complexity in Judicial Decision Making

Abstract: The literature on ideology and decision making offers conflicting expectations about how judges' ideology should affect their votes in cases that raise many legal issues. Using cases from the U.S. courts of appeals, I examine the strength of ideology as a predictor of sincere voting in single and multi-issue cases, and test whether the same effect for ideology can be seen for liberal and conservative judges. For all judges, ideology yields a larger effect as the number of issues increases; however, conservative judges are much more likely than liberal judges to cast sincere votes at all levels of complexity.

'The Supreme Court at the Bar of Politics': The Afghan Detainee and Omar Khadr Cases

Abstract: This paper critically examines judicial decisions not to apply the Canadian Charter of Rights to the detention of prisoners by Canadian Forces in Afghanistan given allegations of torture and to reverse a remedy that Canada should request the US to repatriate a Canadian held at Guantanamo Bay. It also examines the Supreme Court's decision to apply the Charter to Omar Khadr's interrogation by Canadian officials at Guantanamo Bay, Cuba but to reverse a trial judge's decision that Canada must request Khadr's repatriation as the appropriate remedy for the unconstitutional interrogation. The paper concludes that the Supreme Court's reversal of the repatriation remedy and its refusal to hear the Afghan detainee case cannot be justified on normative or prudential grounds such as those defended by constitutional theorist Alexander Bickel.