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: The role of scientific study within the Native American Graves Protection and Repatriation Act (NAGPRA) has been examined in this paper, where the authors conclude that the human remains of the early Holocene human remains known as Kennewick Man might have qualified for study under NAGPRA even if found to be Native American and culturally affiliated with the claimant tribes, which would have enabled study to proceed from the outset.
Abstract: Debates over disposition options for an inadvertently discovered set of early Holocene human remains known as Kennewick Man have fueled discussions about the scientific, cultural, and ethical implications of the anthropological study of human remains. A high-profile lawsuit over Kennewick Man has led to the most extensive judicial analysis to date of the Native American Graves Protection and Repatriation Act (NAGPRA), the primary law affecting access to, and the ultimate disposition of, ancient human remains found in the United States. However, despite years of litigation, some key questions remain unanswered. The judicial decisions in Kennewick address important questions about determining Native American status and assessing cultural affiliation under the law. However, the court opinions fail to address the role of scientific study within NAGPRA's confines. This article examines NAGPRA and concludes that two provisions in the law expressly permit the scientific study of human remains if certain conditions are met. Significantly, Kennewick Man might have qualified for study under NAGPRA even if found to be Native American and culturally affiliated with the claimant tribes, which would have enabled study to proceed from the outset while the parties debated the issues of Native American status and potential cultural affiliation.
53 citations
TL;DR: A history of judicial emotion can be found in this article, where it is argued that judicial emotion does not always tend toward sloppiness, bias, and irrationality, and that it is not quite so monolithic as it appears.
Abstract: Insistence on judicial dispassion is a cultural script of unusual longevity and potency. But not only is the script wrong as a matter of human nature—emotion does not, in fact, invariably tend toward sloppiness, bias, and irrationality—it is also not quite so monolithic as it appears. Legal theorists, and judges themselves, sometimes have asserted that judicial emotion is inevitable and, perhaps, to be welcomed. But these dissents have neither eroded the script’s power nor blossomed into a robust theory of how emotion might coexist with, or even contribute to, judicial decision making. Close examination of this hidden intellectual history reveals why. Scholars and judges consistently have stumbled over foundational questions of emotion’s nature and value. Fortunately, the history reveals cures as well as causes. We can move forward by way of disciplined, sustained recourse to a newly vibrant emotional epistemology, a project that will create a distinct space for the story of judicial emotion.
53 citations
Book•
10 Dec 1998
TL;DR: In this paper, the authors present a statistical analysis of judicial discretion and its relationship with the common law and the law of negligence, as well as its application to public law and public welfare management.
Abstract: Preface 1. Politics and Judicial Discretion 2. A Statistical Analysis of Judicial Discretion 3. Judicial Methodology in Statutory Interpretation 4. Judicial Methodology and the Common Law 5. In Re Pepper v Hart: Comments on the nature of Laws 6. Pure Policy - The Law of Negligence 7. Imposing Rationality on the State 8. Public Law and the Liberty of the Person 9. Judicial Review as Welfare Management 10. Conclusion - Legal Argument and Politics Index
53 citations
TL;DR: In a recent essay, Richard Snyder has stated that: "[A] paradox in political science is the lack of any systematic attention to the analysis of the decision-making behavior of judges" as discussed by the authors.
Abstract: In a recent essay, Richard Snyder has stated that: “[A] paradox in political science is the lack … of any systematic attention to the analysis of the decision-making behavior of judges.” It is not my purpose to argue either for or against the particular frame of reference for decision-making analysis advocated by Snyder. I do believe, however, that he has correctly identified the approach—the analysis of judicial decision-making as an aspect of political behavior—which is most likely to command the focus of interest and activity of the coming generation of political scientists whose substantive concern is with the study of political problems in the area of our discipline traditionally known as public law.The concept “political behavior” remains sufficiently novel within the public law fraternity to impose something of an obligation to make clear what I have in mind in using the term. I shall borrow from David B. Truman who, in a Brookings Lecture not long ago, defined the “behavioral sciences” as “those bodies of knowledge, in whatever academic department they may be found, that provide or aspire to provide ‘verified principles’ of human behavior through the use of methods of inquiry similar to those of the natural sciences.”
52 citations
TL;DR: In this article, a study of the death penalty decisions made by justices of the California Supreme Court between 1979 and 1990 elaborates on the integrated model used to explain judicial behavior, including the interactive effects of judicial ideology, case characteristics, the political environment, the dynamic effects of legal issues, and the effects of retention elections.
Abstract: This study of the death penalty decisions made by justices of the California Supreme Court between 1979 and 1990 elaborates on the integrated model used to explain judicial behavior. Specifically, the interactive effects of judicial ideology, case characteristics, the political environment, the dynamic effects of legal issues, and the effects of retention elections are explored. The model does provide a useful explanation of judicial behavior. In addition, this study indicates that the effects of legal arguments and case facts are conditioned by judicial ideology, that the effects of legal issues change over time, and that electoral pressures do not have a uniform effect across judges.
52 citations