Judicial opinion

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

The Canadian Charter of Rights and the minister of justice: Weak-form review within a constitutional Charter of Rights

Abstract: In a series of influential works, Mark Tushnet has questioned whether the “parliamentary” approach to bills of rights that exist in Canada, New Zealand, and the United Kingdom can strike a middle ground between constitutional supremacy and judicial supremacy. In the case of Canada, Tushnet argues that the failure to employ the notwithstanding clause and the reluctance of parliamentarians to confront the judiciary account for the instability of weak-form review and Canada’s transition to strong-form review. Although the notwithstanding clause has not been a significant aspect of weak-form review in Canada, the Charter has not transitioned to strong-form review. Four variables explain this: first, legislative reversal of judicial decisions through simple statutory amendment, a practice we label as “notwithstanding-by-stealth” to distinguish this practice from the formal use of section 33; second, the structure of the Justice portfolio and its fusion of justice and attorney general within a single department and parliamentarian; third, the lack of transparency in the reporting duty of the minister of justice that significantly reduces the need to employ the formal instruments of weak-form review; and finally, the Supreme Court of Canada’s acceptance of legislative reversal of its Charter jurisprudence as evidence of dialogue with Parliament.

Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation

Abstract: Almost every day brings reports that Congress is considering new cyberspace-targeted laws and the courts are deciding novel cyberspace legal questions. These developments lend urgency to the question of whether a particular cyberspace legal change should come through operation of new statutes, judicial decisions, or the free market. If we can develop sophisticated analytical methods to evaluate institutional competence in cyberspace, we can vastly improve the development of cyberspace law and public policy. Comparative Institutional Analysis in Cyberspace: The Case of Intermediary Liability for Defamation promotes just such an approach. By describing and extending a recently proposed model of comparative institutional analysis, the article develops a workable framework for assessing the ideal institutional resolution of particular cyberspace legal conflicts. It also offers guidance for what to do when a particular institution has already responded in a way that is suboptimal. For example, it argues that courts should use comparative institutional analysis to guide their interpretation of cyberspace statutes. The article uses the case study of intermediary liability for third party defamation to illustrate the analytical approach. The case study recounts an important cautionary tale of the bad policy that can result when legal decisionmakers ignore comparative institutional analysis, and demonstrates how much the outcome would have been improved had comparative institutional analysis been considered.

The Capriciousness of Australian Planning Law: Zoning Objectives in NSW as a Case Study

Abstract: This article considers the fickleness of application of the NSW land use planning system which, like other Australian jurisdictions, deals with ‘command and control’ of development proposals as they come forward. The nub of the regulation is zoning. As a case study, the article focuses on zoning objectives in statutory-based plans: their emergence, their haphazard development and impending downfall. Legal review of plans and decisions has a substantial and potentially negative effect on planning practice. A substantial part of the narrative relies on court judgments. There is also the problem of poorly contrived plans that invite legal challenge.

The Paradox of Legal Expertise: A Study of Experts and Novices Reading the Law

Abstract: What strategies do lawyers and judges use to read the law? The study described in this article examined the way in which 10 legal experts (8 lawyers and 2 judges) and 10 novices (law students in the top 50% of their class) read a judicial opinion. Whereas the experts read efficiently (taking less overall time), the beginning law students read less efficiently. Where the experts read the text flexibly, moving back and forth between different parts of the opinion, the novices read inflexibly. The experts connected to the purpose of their reading more consistently than the novices and drew upon their prior knowledge and experience with the law. The results of this study suggest that we can give our students the following advice: (1) Read with a purpose; (2) Use background knowledge to situate the case; (3) Establish the context of the case before beginning to read; (4) Evaluate the case and have an opinion about its outcome; and (5) Read flexibly; skim and skip when appropriate. We can teach students the way in which a legal expert reads the law. The earlier they achieve these skills, the better for the individual students, the more likely their success in law school and the better for the legal profession as a whole.

Does It Really Matter? Conservative Courts in a Conservative Era

Abstract: This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendent in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the elected branches of government and make policies that conservative majorities privately prefer but would rather not publicly champion. Nevertheless, progressives have far more to fear at present from the radicals in suits who control the elected branches of government than the radicals in robes who increasing control the judiciary. Conservative Republican judicial appointees are likely to have far more impact on public policy should Democrats regain partial control of other federal institutions. More generally, this paper finds that judicial review in the United States and abroad at the turn of the twenty-first century is contributing to a drift toward libertarianism and should be assessed as such.