Judicial opinion

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

Law, Ideology, and Collegiality: Judicial Behaviour in the Supreme Court of Canada

Abstract: In a ground-breaking study on the nature of judicial behaviour in the Supreme Court of Canada, Donald Songer, Susan Johnson, C.L. Ostberg, and Matthew Wetstein use three specific research strategies to consider the ways in which justices seek to make decisions grounded in "good law" and to show how these decisions are shaped within a collegial court. The authors use confidential interviews with Supreme Court justices, analysis of their rulings from 1970 to 2005, and measures that tap their perceived ideological tendencies to provide a critical examination of the ideological roots of judicial decision making, uncovering the complexity of contemporary judicial behaviour. Examining judicial behaviour through the lens of three different research strategies grounded in qualitative and quantitative methodologies, Law, Ideology, and Collegiality presents compelling evidence that political ideology is a key factor in decision making and a prominent source of conflict in the Supreme Court of Canada.

After the Revolution: Somerset and the Antislavery Tradition in Anglo-American Constitutional Development

Abstract: Lord Chief Justice Mansfield declared in Somerset v. Stewart (1772) that the nature of slavery is “so odious … nothing can be suffered to support it but positive law.” In this essay, I trace the principle laid down in Somerset through several cases that occurred during the first quarter of the nineteenth century, and I pay particular attention to two conservative judicial opinions in the 1820’s: Chief Justice John Marshall's opinion in The Antelope (1825) and Lord Stowell's opinion in The Slave Grace (1827). In each of these cases, practical considerations trump the antislavery constitutional tradition emanating from the Somerset decision. Rather than reflecting the triumph of illiberal constitutional theories, I argue that these cases demonstrate the ongoing tension between normative constitutional principles and practical political considerations.

Speaking of inconvenient truths -- a history of the public trust doctrine

Abstract: In the nearly four decades since Professor Joe Sax published an article in the Michigan Law Review, there has been a flood of academic writing and court decisions on the public trust doctrine. The vast majority of these articles and judicial opinions give a brief synopsis of the doctrine's Roman, English and early American roots. In a nutshell, the generally accepted history is that from Justinian's Institutes through Magna Carta and Bracton, Hale and Blackstone reporting on English law, and Chancellor Kent acknowledging the reception of English and Roman law in America, the public has deeply rooted rights in access to and use of resources important to the public welfare. Arnold v. Mundy, Martin v. Waddell and Illinois Central Railroad v. Illinois are cited repeatedly as precedent for present day recognition of a doctrine that will limit the authority of the state to alienate resources while imposing constraints on governmental and private use of those resources. As propounded by Professor Sax and the many adherents to his argument, an expansive public trust doctrine will restore the wisdom of antiquity while serving as a powerful tool for the protection and preservation of natural resources and the environment. The only problem with these ambitions for the public trust doctrine is that they rely on a mythological history of the doctrine. There was nothing resembling the modern idea of public trust in Roman law and the claimed restraint on alienation of state owned waters and lands is belied by a history of pervasive private ownership in both Rome and England. Magna Carta had little or nothing to do with such public rights, nor is there significant support in Bracton, Hale, or Blackstone for the imagined doctrine. The one concept of English law on which the modern public trust doctrine relies--the prima facie rule pursuant to which title to submerged lands is presumed to be in the Crown absent a showing to the contrary--was a sixteenth century fabrication that did not take hold in England until late in the nineteenth century, well after American law had developed on its own. Ironically, the invented prima facie rule served to feather the nest of the Crown, not to protect the rights of the public. American law would serve the same government self-dealing many centuries later in Phillips Petroleum v. Mississippi, though in the name of the public good. American public trust law, even today, is founded on a New Jersey decision that misunderstood the Roman and English history and contradicted the contemporary law and practice of that state. That decision was overruled less than three decades later and only eight years after the United States Supreme Court had embraced its public trust theories in a title dispute to which it had no relevance. A half century later, the Supreme Court revived the public trust concept, along with the mistaken history, in a case that has been badly misconstrued both legally and sociologically. Professors Kearney and Merrill have set the record straight on the economic and political history, but the legal significance of Illinois Central continues to be misunderstood, notwithstanding the Court's clear explanation of Illinois Central's narrow holding only three decades later in Appleby v. City of New York. Relying on both original and secondary sources, this paper sets the historical record straight. While the courts will do what they choose, those with expansive ideas about the public trust doctrine should be discomfited by the conclusions reached. Presumably they and their academic enablers make persistent reference to the history of Roman and English law because they understand that precedent is important in a rule of law system. If their claims for precedent are incorrect, as demonstrated in this paper, they must look to other justifications for a doctrine that threatens the property rights of millions of individuals while recognizing in the courts expansive powers to invalidate the democratic choices of the elected representatives of the people. …

Power, composition, and decision making: the behavioral consequences of institutional reform on brazil’s supremo tribunal federal

Abstract: How does a court’s policy-making authority shape the nature of judicial behavior? We argue that judicial systems that limit policy-making authority also discourage the politicization of courts, encouraging judges to think narrowly about the interests of litigating parties. In contrast, granting a court high policy-making authority—affecting potentially thousands of cases and other branches of government—naturally encourages judges to consider broader ideological principles. Typically, unraveling cause and effect would be difficult, as judicial behavior and institutions are usually stable and endogenous. But an especially stark sequence of political and institutional changes in Brazil affords analytic leverage to explore these questions. A series of judicial reforms greatly expanded the Brazilian Supreme Court’s authority, and our analysis of judicial decisions shows the emergence of a political cleavage on the court after these reforms.