Judicial opinion

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

ICT adoption in the judiciary: classifying of judicial information

Abstract: The article discusses one of the practical problems of information communication technology (ICT) use in the judiciary—classifying and categorization of legal information. This problem that plagues the judiciary in Lithuania is very important to solve in order to minimize the digital divide of the courts, increase transparency of judicial decisions, and increase uniformity of judicial practice and interpretations of the law. The problem is usually approached by applying standard ontological legal classification schemes from legal philosophy. However, such an approach is extremely demanding in terms of human time and labor. The practice of Lithuania is studied as an example of practical manifestation of the target problem. Suggestions are made that Artificial Intelligence‐ (AI‐) based XML or Resource Description Framework (RDF) tools may be employed in order to facilitate such classification.

Critical Habitat and the Challenge of Regulating Small Harms

Abstract: This Article investigates how the United States Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are implementing the Endangered Species Act’s prohibition on "adverse modification" of "critical habitat." That prohibition appears to be one of environmental law’s most ambitious mandates, but its actual meaning and effect are contested. Using a database of over 4,000 "biological opinions," interviews with agency staff, and a review of judicial decisions considering the adverse modification prohibition, the Article assesses the extent to which the Fish and Wildlife Service, the National Marine Fisheries Service, and the courts are relying on the adverse modification prohibition to provide habitat protection. It also assesses the extent to which they are providing habitat protection by invoking other ESA provisions. The Article concludes that agency practice and some judicial decisions substantially depart from statutory requirements, with problematic results, but that the agencies still are providing substantial habitat protection through other means. It then considers the implications of these findings, first for ongoing debates about ESA implementation and reform and then for broader discussions about legal strategies for responding to small environmental harms and the incremental degradation they cause.

Majoritarian Judicial Review: The Case of Taiwan

Abstract: Conventional wisdom has it that judicial review is counter-majoritarian in the sense that it nullifies laws passed by the majority Yet despite the principal-agent issue of whether legislators faithfully fulfill their obligations, this is still a simplistic depiction and does not take into account when and where the majority is formed It simply assumes that public opinion does not change once the laws are passed, and judicial review around the globe functions in the same way This article tries to demonstrate that the Constitutional Court in Taiwan is indeed a majoritarian court from three perspectives: docket records, agenda-setting, and case studies This article argues that, owing to its institutional crisis, the Court sides with the majority most of the time in the sense that it rarely resists the contemporary congressional majority Consequently, judicial supremacy does exist in Taiwan, but simply because it is in accordance with the majority By contrast, judicial self-restraint, championed in many other countries as a virtue, is indeed counter-majoritarian This characteristic directly affects the likelihood of whether the Court can bring about political and social change in the future

Rethinking Legal Realism: Toward a Naturalized Jurisprudence

Abstract: I. Introduction Considering the enormous influence Legal Realism has exercised upon American law and legal education over the last sixty years, and considering, too, as the cliche has it, that "we are all realists now," it remains surprising how inadequate-indeed inaccurate-most descriptions of Realism turn out to be. Ronald Dworkin, for example, claims that according to Realism, "judges actually decide cases according to their own political or moral tastes, and then choose an appropriate legal rule as a rationalization."1 Dworkin is echoed by Judge Jon Newman of the Second Circuit who asserts that Realists believe that "the judge simply selects the result that best comports with personal values and then enlists, sometimes brutally, whatever doctrines arguably support the result."2 John Hart Ely says the Realists "'discovered' that judges were human and therefore were likely in a variety of legal contexts consciously or unconsciously to slip their personal values into their legal reasoning. "3 Steven Burton remarks that it is often "claimed, in legal realist fashion, that judges decide whatever they want to decide when the law is unclear (and it is often or always unclear)."4 Fred Schauer describes Realists as holding "that legal decision-makers are largely unconstrained by forces external to their own decision-making preferences. "5 And Robert Satter, a Connecticut trial judge, says in a recent popular work that Realists "assert that a judge exercises unbridled discretion in making decisions; he works backward from conclusion to principles and uses principles only to rationalize his conclusions. [Realists] consider the judge's values all-important. "6 Glosses on Realism like these are surely familiar to every student of the literature. But it may help to recast them in a slightly more systematic form to understand precisely what picture of Realism so powerfully grips the legal imagination. According to what I will call the "Received View," Legal Realism is fundamentally: (1) a descriptive theory about the nature of judicial decision, according to which, (2) judges exercise unfettered discretion, in order (3) to reach results based on their personal tastes and values, which (4) they then rationalize after-the-fact with appropriate legal rules and reasons. Like much "conventional wisdom," the Received View of Realism has an element of truth: the core of Realism is, indeed, a certain sort of descriptive claim about how judges decide cases, according to which judges rationalize, after the fact, decisions reached on other grounds. But it is, or so I shall argue, quite misleading to think of Realism as committed to the claim that judges exercise "unfettered" discretion7 or that they make choices based on "personal" values and tastes. That Realism has been saddled with these claims-what I shall call the claims of "Judicial Volition" and "Judicial Idiosyncrasy"-has contributed in no small measure to the frequent reduction of Realism to a whipping boy for legal common sense.8 As a preliminary matter, however, any talk about the core of "Realism"-or even of "Realism" simpliciter-invites the objection that there simply is no such thing: there is no doctrine of "Realism" as apart from the views of individual writers.9 This sort of familiar skepticism is, I think, largely false. For everyone commonly thought to be a RealistKarl Llewellyn, Jerome Frank, Underhill Moore, Felix Cohen, Leon Green, Herman Oliphant, Walter Wheeler Cook, and Max Radin, among others-endorses the following descriptive claim about adjudication: in deciding cases, judges respond primarily to the stimulus of the facts. The Received View can then be seen as simply one interpretation of certain aspects of what I shall call this "Core Claim" of Realism, to which I return below.10 Indeed, I will suggest something further: that the misleading presentation of the Received View as the essence of Realism really represents what we may call the "Frankification" of Realism, i. …

The legitimacy of highest courts' rulings : judicial deliberations and beyond

Abstract: Introduction: from Legitimacy to Leadership.- The Comparative Enterprise.- Transforming Deliberations.- What Do We Lack?.- A Socio-Legal Analysis of The Legitimacy of Highest Courts.- Comparing Judicial Reasoning on a Formalism/Policy Axis: Problematizing and Contextualizing 'Formalism' in Mitchel Lasser's judicial Deliberations.- 'In Good Faith': Re-Imagining Comparative Law Discourse.- Formal and Substantial Justification in Legal Decisions: Some Critical Questions From an Argumentative Perspective.- The Subtleties of the French, Belgian and Dutch Cassation Courts.- 8 Formal and Informal Determinative Factors in the Legitimacy of Judicial Decisions: The Point of View of the French Court of Cassation.- But Pasteur Was French: Comments on Mitchel Lasser's 'the European Pasteurization of French Law'.- Filtering Applications, Number of Judgments Delivered and Judicial Discourse by Supreme Courts: Some Thoughts Based on the French Example.- A Commentary on Lasser'S Analysis From the Belgian Court of Cassation's Perspective.- Legitimacy and Democracy Through Adjudication: Comparative Reflections on the Argumentative Practice of the French and Belgian cour de Cassation.- Judicial Reasoning and Legitimacy of the Dutch Supreme Court.- the Legitimacy of The Decisions of the Dutch Supreme Court in Criminal Cases.- The Perspective of the Annotator: Some Observations About the Organisation and Format of the Judgments and Decisions of the Criminal Division of the Supreme Court of the Netherlands, and the Role of the Annotator.- 16 The Perspective of a Cassation Attorney in Criminal Cases.- Legitimacy of the Ruling: A Formal Approach.- Challenges to the Legitimacy of Courts.- Courts in a Quest for Legitimacy: A Comparative Approach.- Another Turn of the Screw: An Evaluation of Lasser'S judicial Deliberations in the Light of the Practices of Constitutional Review in France, Germany and the United States.- From Traditional Judicial Styles to Verdict Industries Inc..- A Comparison Between Wrongful Dismissal Cases in the Netherlands and California: A Quest for Transparency of Judicial Decisions.- The Dutch Supreme Court Versus the Lower Courts: Summary Dismissal and the Catalogue of Viewpoints.- Functions of Judicial Opinion: A View from a Post-Communist European State.- The ECtHR and its Peculiar 'Problematic'.- Judicial Deliberations: the Strasbourg Perspective.- Judicial Legitimacy in an Internationalized World.- Judicial Deliberations in the European Court of Human Righs.- Legitimacy of European Court of Human Rights Judgments: Procedural Aspects.- Judicial Deliberations, Legitimacy and Human Rights Adjudication.