Topic
Judicial opinion
About: Judicial opinion is a research topic. Over the lifetime, 5300 publications have been published within this topic receiving 64803 citations.
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TL;DR: In this paper, the authors focused a great deal of attention on the Supreme Court and the behavior of its members, but despite this attention, analysts have differed as to the relative influence of the factors justices rely upon when making their decisions.
Abstract: Students of the judiciary have long been concerned with the factors that contribute to decision-making at the individual and institutional levels. In particular, analysts have focused a great deal of attention on the Supreme Court and the behavior of its members. Despite this attention, analysts have differed as to the relative influence of the factors justices rely upon when making their decisions. Even the courses taught in a standard political science undergraduate curriculum send mixed signals about these factors to students. Basic constitutional law courses tend to overestimate the role of doctrinal interpretation and precedent and underestimate the impact of the values and attitudes of the Court's members. Courses on the judicial process and politics err in the opposite direction. When the decision-making literature is viewed as a whole, five basic determinants of judicial decisions emerge: the background of the justice (Tate 1981), the justice's attitudes and values (Rohde and Spaeth 1976), the dynamics inherent in small-groups (Murphy 1964; Woodward and Armstrong 1979), the member's conception of the role of the Court (Howard 1977), and the impact of external stimuli (Casper and Posner 1974). Some of these variables can be measured, but some are very difficult to gauge. As a consequence, analysts cannot accurately assess the relative impact of these five factors upon the individual's decision.
13 citations
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TL;DR: The authors explored three categories of prison litigation concerning women: sex discrimination, medical care, especially for pregnant women, and parental rights, and discussed the limited impact which judicial decisions have had on conditions within women's prisons, and analyzed the reasons for this ineffectiveness.
Abstract: Despite a decade of prison reform, women in U.S. prisons still suffer discrimination in a wide variety of areas. This paper explores three categories of prison litigation concerning women: sex discrimination; medical care, especially for pregnant women; and parental rights. I discuss the limited impact which judicial decisions have had on conditions within women's prisons, and analyze the reasons for this ineffectiveness.
13 citations
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TL;DR: In this paper, the author explores the possibility that some of the advantages of prospective overruling can be achieved by deploying the weaker prospective lawmaking technique of "not following" which is a well-established feature of the common law as is illustrated most recently by Hall v Simons [2000] 3 All E R 673.
Abstract: This article explores the possibility that some of the advantages of prospective overruling can be achieved by deploying the weaker prospective lawmaking technique of 'not following' which the author claims is a well-established feature of the common law as is illustrated most recently by Hall v Simons [2000] 3 All E R 673. On the analysis presented, that case abolished the barristerial immunity for the future only. Some of the problems of time can been seen at their most acute in R v Governor of Brockhill Prison, ex parte Evans [2000] 4 All ER 15 and the author ventures to suggest that had sufficient attention been paid to the distinction between 'authoritatively overruling' and 'not following' the extreme and nonsensical (but legally correct) outcome in that case might have been avoided. The unsatisfactory outcome is traced to the influence of the declaratory theory of the common law which holds that judicial decisions, especially those changing or correcting earlier decisions, are 'inevitably retrospective'. The author therefore considers time as a problem not only for practice but also for legal theory and is concerned to challenge the descriptive and normative claims of the declaratory theory of the common law, even in the reinterpreted and diluted form which emerged from judicial opinion in, and academic comment on, Kleinwort Benson v Lincoln City Council [1999] 2 AC 349.
13 citations
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TL;DR: The authors conducted an empirical study of racial harassment in the workplace in which they statistically analyzed federal court opinions from 1976 to 2002 and found that the most typical legal proceeding is the court's consideration of the defendants' motion for summary judgment where the judges end up terminating most plaintiffs' cases.
Abstract: This article is based on a pioneering empirical study of racial harassment in the workplace in which we statistically analyze federal court opinions from 1976 to 2002. Part I offers an overview of racial harassment law and research, noting its common origin with and its close dependence upon sexual harassment legal jurisprudence. In order to put the study's analysis in context, Part I describes the dispute resolution process from which racial harassment cases arise. Parts II and III present a clear picture of how racial harassment law has played out in the courts - who are the plaintiffs and defendants, the nature of the claims, who wins and loses, and what factors affect those outcomes. We consider dozens of characteristics of the parties, the nature of the harassment, and litigation characteristics (such as the forum, type of proceedings, and legal issues). While it reveals that individuals in all kinds of occupations, in all parts of the country, of all races, and of both genders complain about racial harassment-it also shows that African Americans are disproportionately likely to be plaintiffs. While Whites are the most likely harassers, minority individuals also are defendants. The data also discloses that the most typical legal proceeding is the court's consideration of the defendants' motion for summary judgment where the judges end up terminating most plaintiffs' cases. In fact, the judicial opinions in this study find in the plaintiffs' favor only 21.5% of the time. (In contrast, an earlier study revealed that judges in sexual harassment cases find in the plaintiffs' favor 48% of the time - more than twice as often as in racial harassment cases.) As it turns out in racial harassment cases, the race of the plaintiff and of the alleged harasser makes a difference in the parties' success rates, but the gender of the plaintiff does not. Judges are a bit more likely to find racial harassment when plaintiffs allege blatant racist behavior rather than more subtle and contextual racism. Results vary depending on the location of the case. Part IV provides an integrated analysis of the data, including a look at how racial harassment litigation has evolved over time. It also offers explanations and implications of the study's results. This article contributes detailed baseline data for litigants, judges, and legislators. Each group can draw upon the totality of racial harassment cases to guide their decision-making. The article also offers a sound basis for creating a new racial harassment jurisprudence that should be distinct from both sexual harassment and racial discrimination jurisprudence.
13 citations
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TL;DR: In this paper, the use of precedents to create rules of legal obligation has, to the best of our knowledge, received little theoretical or empirical analysis; however, the authors present and test empirically an economic approach to legal precedent, derived mainly from the analysis of capital formation and investment.
Abstract: The use of precedents to create rules of legal obligation has, to our knowledge, received little theoretical or empirical analysis. This paper presents and tests empirically an economic approach to legal precedent that is derived mainly from the analysis of capital formation and investment. We treat the body of legal precedents created by judicial decisions in prior periods as a capital stock that yields a flow of information services which depreciates over time as new conditions arise that were not foreseen by the framers of the existing precedents. New (and replacement) capital is created by investment in the production of precedents.
13 citations