Judicial opinion

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

The Judicial Hierarchy: A Review Essay

Abstract: Crucial to understanding the behavior of judges and the outputs of courts is the institutional context in which they operate. One key component of courts' institutional structure is that the judiciary system is organized as a hierarchy, which creates both problems and opportunities for judges. In this essay I evaluate the literature on several features of the judicial hierarchy. I focus on core issues addressed by political scientists, legal scholars, and economists, including such questions as why hierarchy exists; how higher courts can best oversee lower courts; how learning takes place both within and across the levels of the judiciary; and how collegiality influences judicial decision making. I conclude with thoughts on potential future theoretical and empirical avenues for furthering our understanding of the judicial hierarchy.

Shareholder Wealth Maximization and Its Implementation under Corporate Law

Abstract: As its theoretical foundation, this article accepts shareholder wealth maximization as both the primary norm of corporate governance and the objective of corporate law. If so, then any model of corporate law must explain why courts have historically shown little interest in reviewing a board decision to determine if shareholder wealth maximization was actually achieved. To explain why this restrained approach has been used, this article utilizes a model of corporate law that describes a world where the courts have designated the board of directors as the locus of authority for determining whether or not a corporate decision maximizes shareholder wealth. The courts take this approach because it understands that it is the board, not the courts, which has the information and expertise to determine if a corporate decision meets this objective. This approach is implemented by utilizing a strategy of protecting managerial discretion in corporate decision making as evidenced by the business judgment rule. A court will only interpose itself in this shareholder wealth maximizing determination if the board decision is tainted with a conflict of interest, lack of independence or where gross negligence in the process of becoming informed is implicated and exculpation clauses do not apply. Utilizing this triad of filters prior to a review for shareholder wealth maximization allows the courts to take both a light-handed and intermittent approach to board accountability, consistent with an Arrowian framework that sees great value in decision making by a centralized authority.The model just described can be understood as the traditional model of corporate law and, as argued here, is still valid. Thus, when a chancellor or judge veers from this model the judicial opinion must be closely scrutinized to see if the court had valid reasons for implementing a different approach. Such a veering from the traditional path can be found in eBay v. Newark, a recent Delaware Chancery Court case where former Chancellor Chandler, in his review of a shareholder rights plan under the Unocal test, required the directors to demonstrate that the corporate policy being defended under the first prong of the test enhanced shareholder value (the Link) even though the decision to implement the rights plan was not yet ripe or even required to be reviewed under the traditional triad of filters. As also argued here, former Chancellor Chandler was wrong in adding shareholder wealth maximization as an additional burden for the board to bear under the first prong of the Unocal test.

Concerns and ideas about the developing English law of privacy (and how knowledge of foreign law might be of help)

Abstract: Few can doubt that the UK Human Rights Act 1998, in incorporating the European Convention on Human Rights (ECHR) and in particular the guarantee of the right to privacy in Article 8 of the Convention into UK domestic law, and also in requiring the judiciary in s. 6 to have regard to the Convention in developing the common law, is having a considerable effect on the developing protection of human privacy in English common law. This was predicted when the Human Rights Bill was going through its various parliamentary phases by many, including the Lord Chancellor, who described the judges "as pen-poised . . . to develop a right of privacy."' Also predicted was the way the expansion was likely to come about: incrementally and, initially at least, by means of expanding established torts.2 The early judicial decisions that have been handed down since the coming into force in October 2000 of the 1998 Act confirm the above predictions. Arguably, they also display the defects of dealing with new societal problems by putting old torts on the Procrustean bed and stretching them out of shape to meet new requirements. Those who share this view may ask why the richer experience of other systems, in particular that of Germany, France and the USA,

The supreme court and the protection of minority rights: An empirical examination of racial discrimination cases

Abstract: This inquiry provides a basic assessment of the impact of three potential determinants of racial discrimination cases in the U.S. Supreme Court since 1954. The research design provides two improved methods of explicating this issue. First, the model allows for a comparison of basic Hamiltonian institutionalism (i.e., the bulwark thesis), majoritarianism, and attitudinalism in a single test, as opposed to previous studies that tended to examine only two theoretical approaches at a time. Second, the majoritarian approach is given more careful consideration through the use of theoretical and empirical evidence, which allows the subtleties of public opinion in this area to be assessed. The findings show some support for the basic bulwark prediction over majoritarianismdecisions fail to reflect majority opinion trends. The bulwark thesis fails to receive full support, however, since the ideologies of the Justices also display a significant influence on outcomes. Introduction The assessment of the determinants of U.S. Supreme Court decisionmaking remains an intensely controversial aspect of judicial studies. Advocates of several broad approaches continue to debate which is the principal impetus of outcomes both in general and in specific legal fields.1 My inquiry offers one perspective to help untangle this controversy in the domain of racial discrimination cases in the post-Brown v. Board of Education (1954) period. Although the findings will not end the long-standing debate over what determines decisional outcomes, they do provide a clarified picture of the racial discrimination subfield and a suggestion for studying other specialized areas. My basic approach and specific research design are premised on the assertion that a clear understanding of decisionmaking is obscured by previous studies (both general and particularized) that tend to inflate the influence of majority preferences (thus discrediting institutionalism to an unwarranted extent) and also fail to provide a full account by focusing only on two competing explanations at a time. The strategy for systematically interpreting outcomes in this area rests on two novel tactics. The first tactic is to expand consideration of the potential role played by majority opinion. (I furnish a complete description and justification of this approach later.) This tactic offers an improved test of the majoritarian thesis. The second approach of this inquiry allows for the explication of three potential determinants of decisionsthe rules and structure of the institution itself, majority public preference, and the ideological predilections of the Justices. It thus provides a core comparison of these broad categories rather bluntly defined, as opposed to an exhaustive assessment of all potentially meaningful determinants. Since such a basic measure of outcomes in this field has yet to be undertaken, however, this is a necessary first step. The results of this investigation of constitutional challenges to racial discrimination suggest that even though the Supreme Court is insulated from majority preferences, its decisions are influenced by Justices' ideological leanings. More specifically, although white Americans (who in this area represent the majority, as opposed to the African American minority) are much more amenable to government action designed to end blatantly discriminatory laws and practices (de jure discrimination) than to the eradication of entrenched patterns of inequity (de facto discrimination), this distinction is not reflected in the decision record. Whether a case represents a challenge to de jure or de facto discrimination does not significantly influence its outcome. Furthermore, fluctuations in the general ideological temper of the nation also fail to affect rulings. However, although distancing itself from majority influences, the Court is not consistently protective of minority rights. The ideological composition of the Court displays a significant influence on verdicts; thus, when the Court is relatively more conservative, cases are less likely to be decided in the minority interest. …

Legal Realisms, Old and New

Abstract: “Legal Realism” now has sufficient cache that scholars from many different fields and countries compete to claim the mantle of the "Realist program": from political scientists who study judicial behavior, to the "law and society" scholars associated with the Wisconsin New Legal Realism project, to philosophers interested in a naturalized jurisprudence. But what does it mean to be a “legal realist”? What unites the two most famous “old” Legal Realisms — the American and the Scandinavian — with the “new legal realism” invoked, variously, by sociologists, anthropologists, and political scientists, among others? There are, of course, other “legal realisms,” old and new, from the “free law” movement in Germany more than a century ago, to the Italian realism of the Genoa School today. My focus, however, shall be on the old and new Realisms that are probably most familiar. Is there anything they all share? I argue that (1) American and Scandinavian Realism have almost nothing in common — indeed, that H.L.A. Hart misunderstood the latter as he did the former, and that the Scandinavians are closer to Hart and even Kelsen than they are to the Americans; (2) all Realists share skepticism about the causal efficacy of legal doctrine in explaining judicial decisions ("the Skeptical Doctrine") (though the Scandinavian skepticism on this score is not at all specific to the legal domain, encompassing all explanation in terms of norms); (3) American Realism almost entirely eschewed social-scientific methods in its defense of the Skeptical Doctrine, contrary to the impression given by much recent work by "new" legal realists; (4) the myth that the American Realists were seriously interested in social science derives mainly from two unrepresentative examples, Underhill Moore's behaviorism and Llewellyn's work with the Cheyenne Indians. Moore's case is a cautionary note in taking au courant social science too seriously; and Llewellyn's work was necessitated by the fact that the "primitive" peoples he wanted to study did not write their judicial opinions down. For any modern legal culture, such "field work" would be unnecessary on Llewellyn's view.