Judicial opinion

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

On getting inside the judge’s mind

Abstract: According to the scales of justice, the judge, in an unbiased way and directed by law, attends to all of the available information in a case, weighs it according to its significance, and integrates it to make a decision. By contrast, research suggests that judicial decision-making departs from the cognitive balancing act depicted by the scales of justice. Nevertheless, the research is often dismissed as irrelevant, and the judiciary, legal policy-makers and the public remain largely unconvinced that the status quo needs improving. One potential rebuttal to the scientific findings is that they lack validity because researchers did not study judges making decisions on real cases. Another potential argument is that researchers have not pinpointed the psychological processes of any specific judge because they analyzed data over judges and/or used statistical models lacking in psychological plausibility. We review these two grounds for appeal against the scientific research on judicial decision-making, and note that it appears researchers’ choices of data collection methods and analytic techniques may, indeed, be inappropriate for understanding the phenomena. We offer two remedies from the sphere of decision-making research: collecting data on judicial decision-making using representative design, and analyzing judicial decision data using more psychologically plausible models. Used together, we believe these solutions can help researchers better understand and improve legal decision-making.

The Use of Precedent and External Case Law by the International Court of Justice and the International Tribunal for the Law of the Sea

Abstract: Judicial decisions are explicitly mentioned in Article 38 of the Statute of the International Court of Justice (ICJ) as “a subsidiary means for the determination of rules of law”. Doctrine and judicial decisions are then usually categorised as subsidiary or material sources. Despite the absence of any rule on binding precedent in international law generally, references to previous cases of both the Permanent Court of International Justice and the ICJ, and increasingly also case law from other courts and tribunals, in the decisions of the ICJ and the International Tribunal for the Law of the Sea (ITLOS) are a widespread phenomenon. This article aims at mapping out and critically evaluating the practice of both the ICJ and ITLOS in using and relying on their own previous case law or external case law of other international courts and tribunals. I will first identify the conventional principles applicable to judicial and arbitral decisions as “sources” of international law. I will next map the practice of the ICJ by investigating the ways in which the ICJ has used its previous decisions, as well as those of its predecessor, and that of other international courts and tribunals. Finally, I will discuss and analyse the practice of the ITLOS.

Politics and the Courts: Toward a General Theory of Public Law

Abstract: Preface Introduction Political versus Contextual Variables--or Do Law and Facts Count? Why Judges Are Not Constrained by Laws and Facts When Do Political Factors Affect Judicial Decision Making? Contextual Variables: Region Judicial versus Administrative Decision Making Comparing Judicial and Administrative Decision Making A Synthesis and a General Model New Approaches: Combining Public Law with Pluralism and Theories about Social Movements Social Movements and Public Interest Litigation Groups Bibliography Index

The first three years in Charterland

Abstract: An examination of judicial decisions in the first three years of the Canadian Charter of Rights and Freedoms indicates that the Charter has fulfilled neither the worst fears of its critics nor the high hopes of its supporters. Jt has produced a flood of litigation in the lower courts which has gradually bubbled up to the Supreme Court of Canada and put that institution under a good deal of stress. Undoubtedly the Charter has resulted in the transference of some political activity from the political to the judicial arena. Although Canadian judges have shown themselves to be far more prepared to give effect to the constitutional Charter than they were to the statutory Bill of Rights, Charter decisions in these first three years have not seriously eroded the power of elected legislators. Most cases have involved challenges to procedural aspects of criminal justice. Few of the successful challenges have adversely affected policy interests of contemporary governments. The coming into force of the equality clause at the end of this three-year period could dramatically change this picture. In the meantime, the impact of the Charter on popular attitudes which many of the Charter's proponents said would be its most important effect remains unexplored.