Judicial opinion

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

Comparative Sources of Judicial Empowerment: Ideas and Interests

Abstract: Since the end of World War II, courts across the globe have been increasingly involved in debates and decisions of national and international political import (Tate and Vallinder 1995; Russell and O'Brien 2001; Hirschl 2004, 2008). Judges have weighed in on a vast range of issues, including the treatment of racial, ethnic, and sexual minorities; the boundaries of religious and reproductive freedom; past human rights abuses; the meaning of social rights; the punishment of official corruption; and executive accountability in matters of public security, to name just a few (see, for example, Smulovitz 1995; Klug 2000; Della Porta 2001; Guarnieri and Pederzoli 2002; James, Abelson, and Lusztig 2002; Sathe 2003; Scheppele 2003, 2005; Sieder, Schjolden, and Angeli 2005; Gargarella, Domingo, and Roux 2006). Courts have always engaged in some amount of policy making, in the United States and elsewhere (Shapiro 1964; Tocqueville 1969; Bickel 1986; Becker 1970; Unger 1976; Feeley and Rubin 1998; Guarnieri and Pederzoli 2002). Some have suggested that increasing post-World War II concerns for civil and human rights coupled with an explosion of legislation expanding the role of the state in general has vastly expanded the issue areas into which courts have been expected to intervene (Guarnieri and Pederzoli 2002). Whatever its causes, there is broad agreement among political scientists that the judicial role has expanded significantly at both the national and international levels during the past half century (Epp 1998; Stone Sweet 2000; Cichowski 2000; Russell and O'Brien 2001; Widner 2001; Guarnieri and Pederzoli 2002; Ginsburg 2003; Hirschl 2004, 2008; Scheppele 2005; Sieder, Schjolden, and Angeli 2005; Malleson and Russell 2006; Moustafa 2007). This increase in judicial involvement in policy making has led to a virtual explosion in work on comparative and supranational judicial politics.1 Scholars who focus on polities outside the United States have begun to make an important mark on theoretical and methodological development in work on law and courts. Building on the pioneering work of scholars such as Schubert and Danelski (1969), Murphy and Tanenhaus (1972), Shapiro (1981), and Galanter (1984), a new generation of political scientists has devoted themselves to "examining] and comparing] the influence of courts on politics and the influence of politics on courts across democracies" (Whittington, Kelemen, and Caldeira 2008, 11-12) and even in nondemocratic regimes (see, e.g., Ginsburg and Moustafa 2008). Some have focused on the upholding or weaknesses in judicial independence and the rule of law (Russell and O'Brien 2001; Widner 2001; Finkel 2003; Chavez 2004; Maravall and Przeworski 2003; Helmke and Rosenbluth 2009), or of legal tools, such as bills of rights and judicial review, that grant courts broad formal powers (Klug 2000; Ginsburg 2003, 2008; Hirschl 2004; Epp 1996). Other scholars have turned their analytic lenses to the roots of judicial intervention, seeking to explain when and why judges (do or do not) act to defend rights, to hold powerful actors accountable, or to otherwise enter the political thicket (Osiel 1995; Epp 1998; Ginsburg 2003; Helmke 2005; Woods 2005, 2008; Staton forthcoming; Vanberg 2005; Hilbink 2007, 2009; Kapiszewski 2007). More recently, a few scholars have begun to analyze political compliance with judicial decisions (Staton 2004; Vanberg 2005; Kapiszewski 2007). Many hope that their work will help to unpack both the causes or the consequences of what has been called the "judicialization of politics" (Tate and Vallinder 1995), that is, the reasons behind and implications of more frequent judicial, rather than legislative or social, resolution of political conflict (Stone Sweet 2000; Guarnieri and Pederzoli 2002; Hirschl 2004; Dotan and Hofnung 2005; Sieder, Schjolden, and Angeli 2005; Wilson and Rodriguez Cordero 2006; Gauri and Brinks 2008). Some of the most influential works in comparative judicial politics are those that have focused their analysis, at least in part, on the conditions under which judges gain formal independence and expanded legal powers - especially judicial review (Ginsburg 2003; Hirschl 2004; Chavez 2004). …

The New Legal Realism

Abstract: The last decade has witnessed the birth of the New Legal Realism—an effort to go beyond the old realism by testing competing hypotheses about the role of law and politics in judicial decisions, with reference to large sets and statistical analysis. The New Legal Realists have uncovered a Standard Model of Judicial Behavior, demonstrating significant differences between Republican appointees and Democratic appointees, and showing that such differences can be diminished or heightened by panel composition. The New Legal Realists have also started to find that race, sex, and other demographic characteristics sometimes have effects on judicial judgments. At the same time, many gaps remain. Numerous areas of law remain unstudied; certain characteristics of judges have yet to be investigated; and in some ways, the existing work is theoretically thin. The New Legal Realism has clear jurisprudential implications, bearing as it does on competing accounts of legal reasoning, including Ronald Dworkin’s suggestion that such reasoning is a search for “integrity.” Discussion is devoted to the relationship between the New Legal Realism and some of the perennial normative questions in administrative law. In 1931, Karl Llewellyn attempted to capture the empirical goals of the legal realists by referring to early “efforts to capitalize the wealth of our reported cases to make large-scale quantitative studies of facts and outcome.” Llewellyn emphasized the “hope that these might develop lines of prediction more sure, or at least capable of adding further certainty to the predictions based as hitherto on intensive study of smaller bodies of cases.” But Llewellyn added, with apparent embarrassment: “I know of no published results.” We are in the midst of a flowering of “large-scale quantitative studies of facts and outcome,” with numerous published results. The relevant studies have produced a New Legal Realism—an effort to understand the sources of judicial decisions on the basis of ∗ Assistant Professor of Law, University of Chicago Law School. ** Karl N. Llewellyn Distinguished Service Professor, Law School and Department of Political Science, University of Chicago. We are grateful to the Chicago Judges Project, and in particular to Dean Saul Levmore, for relevant support. 1 Karl N. Llewellyn, Some Realism About Realism: Responding to Dean Pound, 44 Harv L Rev 1222, 1243-44 (1931). 2 Id. at 1244. 3 Id.

Labour Before the Law: The Regulation of Workers' Collective Action in Canada, 1900-1948

Abstract: In this groundbreaking study of the relations between workers and the state, Judy Fudge and Eric Tucker examine the legal regulation of workers' collective action from 1900 to 1948. They analyze the strikes, violent confrontations, lockouts, union organizing drives, legislative initiatives, and major judicial decisions that transformed the labour relations regime of liberal voluntarism, which prevailed in the later part of the nineteenth century, into industrial voluntarism, whose centrepiece was Mackenzie King's Industrial Disputes Investigation Act of 1907. This period was marked by coercion and compromise, as workers organized and fought to extend their rights against the profit oriented owners of capital, while the state struggled to define a labour regime that contained industrial conflict. The authors then trace the conflicts that eventually produced the industrial pluralism that Canadians have known in more recent years. By 1948 a detailed set of legal rules and procedures had evolved and achieved a hegemonic status that no prior legal regime had even approached. This regime has become so central to our everyday thinking about labour relations that one might be forgiven for thinking that everything that came earlier was, truly, before the law. But, as Labour Before the Law demonstrates, workers who acted collectively prior to 1948 often found themselves before the law, whether appearing before a magistrate charged with causing a disturbance, facing a superior court judge to oppose an injunction, or in front of a board appointed pursuant to a statutory scheme that was investigating a labour dispute and making recommendations for its resolution. The book is simultaneously a history of law, aspects of the state, trade unions and labouring people, and their interaction within the broad and shifting terrain of political economy. The authors are attentive to regional differences and sectoral divergences, and they attempt to address the fragmentation of class experience.