Judicial opinion

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

Common Law, Common Ground, and Jefferson's Principle

Abstract: Thomas Jefferson's famous argument that "the earth belongs to the living" - and therefore no generation has the right to rule another - is a standing challenge to anyone who believes that written constitutions (or, in many instances, statutes) are binding. Most answers to Jefferson's challenge rely, in one way or another, on a claim that being an American means owing an obligation of some kind to previous generations. These accounts should not be disparaged, but in a large and heterogeneous nation the obligation to adhere to decisions made decades or centuries ago should rest on something less contested. Our written Constitution performs two functions that justify adherence to it, without relying on a contested conception of American citizenship. First, the text, and the judgments of those who wrote and ratified it, are a source of precedents, roughly on a par with certain judicial decisions. Second, the text provides what game theory calls a "focal point": it establishes common ground on questions (such as the length of a President's term) that need to be settled one way or another. There are no other justifications, beyond these two, for requiring adherence to the text of a document adopted long ago. But this account helps explain current practices that might otherwise seem unjustifiable: an emphasis on the words of the text often without regard to the intentions of the drafters, as evidenced, for example, in the debate over the incorporation of the Bill of Rights; the highly selective use of historical sources (what is often called "law office history"); the fact that the text of the Constitution matters most for issues that are the least important; and popular attitudes about constitutional amendment.

Courts of Appeals in the Federal Judicial System: A Study of the Second, Fifth, and District of Columbia Circuits

Abstract: Courts of Appeals were designed to be a unifying force in American law and politics, but they also contribute to decentralization and regionalization of federal law. Woodford Howard studies three aspects of this problem: first, what binds the highly decentralized federal courts into a judicial system; second, what controls the discretion of judges in making law and policy; and third, how can quality judicial decisions be maintained under heavy-volume pressure. Originally published in 1981. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

The Rule of Law and the Litigation Process: the Paradox of Losing by Winning

Abstract: This article expands upon the idea that repeat players influence the development of law by settling cases they are likely to lose and litigating cases they are likely to win. Through empirical analysis of judicial opinions interpreting the Family and Medical Leave Act, it shows how the rule-making opportunities in the litigation process affect the development of law and the judicial determination of statutory rights. In addition, the article explains how early judicial opinions might influence later judicial interpretations of the law. Although individuals may successfully mobilize the law to gain benefits in their disputes, that success often removes their experiences from the judicial determination of rights, limiting law's capacity to produce social change. This paradox of losing by winning separates the dispute resolution function of courts from their law-making function and raises questions about the legitimacy of law.