Judicial opinion

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

The Nature and Authority of Precedent

Abstract: Neil Duxbury examines how precedents constrain legal decision-makers and how legal decision-makers relax and avoid those constraints. There is no single principle or theory which explains the authority of precedent but rather a number of arguments which raise rebuttable presumptions in favour of precedent-following. This book examines the force and the limitations of these arguments and shows that although the principal requirement of the doctrine of precedent is that courts respect earlier judicial decisions on materially identical facts, the doctrine also requires courts to depart from such decisions when following them would perpetuate legal error or injustice. Not only do judicial precedents not 'bind' judges in the classical-positivist sense, but, were they to do so, they would be ill suited to common-law decision-making. Combining historical inquiry and philosophical analysis, this book will assist anyone seeking to understand how precedent operates as a common-law doctrine.

Justice as translation : an essay in cultural and legal criticism

Abstract: White extends his conception of United States law as a constitutive rhetoric shaping American legal culture that he proposed in When Words Lose Their Meaning, and asks how Americans can and should criticize this culture and the texts it creates. In determining if a judicial opinion is good or bad, he explores the possibility of cultural criticism, the nature of conceptual language, the character of economic and legal discourse, and the appropriate expectations for critical and analytic writing. White employs his unique approach by analyzing individual cases involving the Fourth Amendment of the United States constitution and demonstrates how a judge translates the facts and the legal tradition, creating a text that constructs a political and ethical community with its readers.

The Judicial Application of Law

Abstract: Preface I Introduction Part One: Basic Approaches to the Judicial Application of Law II Description of the Judicial Application of Law III Models of Judicial Application of Law IV Descriptive Models of Judicial Application of Law V Normative Models of Judicial Application of Law Part Two: Theoretical Analysis of Judicial Application of Law VI Validity of Law and Decision of Validity VII Operative Interpretation and Decisions of Interpretation VIII Determination of Facts and Decision on Evidence IX Determination of Legal Consequences, Decision of the Choice of Consequences, and the Final Judicial Decision X Rationality and the Correctness of a Decision of the Application of Law Part Three: Problems of the Ideology of the Judicial Application of Law XI Judicial Application of Law and the Ideological Point of View XII The Ideology of Bound Judicial Decision-Making XIII The Ideology of the Free Judicial Decision-Making XIV The Ideology of the Legal and Rational Judicial Decision-Making XV The Judge and the Application of Law Bibliography

The Limits of Judicial Independence

Abstract: This book investigates the causes and consequences of congressional attacks on the US Supreme Court, arguing that the extent of public support for judicial independence constitutes the practical limit of judicial independence. First, the book presents a historical overview of Court-curbing proposals in Congress. Then, building on interviews with Supreme Court justices, members of Congress, and judicial and legislative staffers, the book theorizes that congressional attacks are driven by public discontent with the Court. From this theoretical model, predictions are derived about the decision to engage in Court-curbing and judicial responsiveness to Court-curbing activity in Congress. The Limits of Judicial Independence draws on illustrative archival evidence, systematic analysis of an original dataset of Court-curbing proposals introduced in Congress from 1877 onward and judicial decisions.