Judicial opinion

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

The Atrophy of Constitutional Powers

Abstract: In many constitutional regimes, constitutional powers atrophy over time. Although at one point such a power is explicitly established in a written constitution or solidly based in constitutional conventions, the power gradually sinks into desuetude, and at a later time actors in the legal system declare its use illegitimate or assert that a constitutional convention now prohibits its exercise. Examples of atrophied powers – listed roughly from most clearly atrophied to less clearly so -- include the royal veto in the United Kingdom, the power of the Canadian federal government to disallow provincial laws, the power of the U.S. Congress to expand the number of Supreme Court justices (court-packing), the notwithstanding clause that authorizes the Canadian Parliament to override judicial decisions, and congressional impeachment of executive officers. I will try to offer some mid-level generalizations about the atrophy phenomenon. On this account, the common dynamic is slippage in the modal status of power: a power that is not exercised tends, over time, to become unexercisable. I offer several stylized hypotheses, each based on a different causal mechanism, that might explain this pattern. The common theme is that when a power goes unexercised over some sufficiently long period, its use comes to seem illegitimate to boundedly informed publics (including elites who lack relevant specialized knowledge). Such publics use a political precedent heuristic, according to which an attempt to revive the power at a later time amounts to an illegitimate attempt to change the rules of the political game. I then elicit implications for constitutional actors who wish to prevent the atrophy of particular constitutional powers. Actors in this situation would do well to engage in pointless exercises of power -- a form of deliberate precedent-setting in which the power is exercised merely to preserve its existence for the future. By way of illustration, I apply this point to legislative power to overturn or override constitutional or quasi-constitutional decisions of the judiciary, with special reference to judicial review under the Human Rights Act in the United Kingdom. This advice can also be turned on its head for actors who wish to hasten the atrophy of constitutional powers.

Toward A Positive Theory of State Supreme Court Decision Making

Abstract: State Supreme Courts have grown in importance during the last thirty years in the formation of public policy. Their judgements determine many aspects of constitutional law, tort reform, judicial selection, and campaign finance reform, among others. A vast body of literature has been developed that analyzes State Supreme Court decision making, which emphasizes the conditioning effects of the legal and institutional environment. This article expands on this previous work by incorporating the interaction of the judiciary with other government institutions, and applies the Positive Political Theory approach to law and legal institutions to the State Supreme Court. In addition, the neo-institutionalist literature of the selection process is incorporated to defend a systematic approach towards decision making. Towards that end, this article explores how judicial decisions are conditioned by institutional rules, resulting in a formal modeling of how the State Supreme Courts interact with political actors to form...

Bargaining Power in the Supreme Court: Evidence from Opinion Assignment and Vote Switching

Abstract: How can we assess relative bargaining power within the Supreme Court? Justices cast two votes in every case, one during the initial conference and one on the final merits of the case. Between these two votes, a justice is assigned to draft the majority opinion. We argue that vote switching can be used to detect the power of opinion authors over opinion content. Bargaining models make different predictions for opinion content and therefore for when other justices in the initial majority should be more or less likely to defect from initial positions. We derive hypotheses for how opinion authorship should affect vote switching and find that authorship has striking effects on switching. Authors thus have disproportionate influence and by extension so do chief justices, who make most assignments. This evidence is compatible with only the “author influence” class of bargaining models, with particular support for one model within this class.

On Target? The Israeli Supreme Court and the Expansion of Targeted Killings

Abstract: After four years of consideration, the Israeli Supreme Court recently issued the world's first judicial decision on targeted killings in Public Committee Against Torture in Israel v. Government of Israel (PCATI). In PCATI, the court held that terrorists are civilians under the law of armed conflict and thus are lawfully subject to attack only when they directly participate in hostilities. But the court also expanded the traditional definition of direct participation and the time period during which civilians may lawfully be attacked. By disregarding the direct participation requirement's important evidentiary function, the court weakened the protections that international law affords to all civilians, not just to terrorists.

Structuring Gender's Impact

Abstract: The importance of judge gender as a factor in judicial votes continues to attract much scholarly attention. I contribute to the debate on the influence of judge gender by examining the voting behavior of male and female state supreme court justices in three areas of criminal justice. I find that female justices, controlling for institutional, political, and legal constraints, are more likely than are their male counterparts to rule for the criminal defendant and in a broader array of cases than commonly thought. I conclude that judge gender is a significant factor in the outcome of judicial decisions and that the number of women on the courts is a factor in judicial decision making.