Judicial opinion

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

Law, Politics, and Perception: How Policy Preferences Influence Legal Reasoning

Abstract: Are judges' decisions more likely to be based on personal inclinations or legal authority? The answer, Eileen Braman argues, is both, Law, Politics, and Perception brings cognitive psychology to bear on the question of the relative importance of norms of legal reasoning versus decision makers' policy preferences in legal decision-making. While Braman acknowledges that decision makers' attitudes - or, more precisely, their preference for policy outcomes - can play a significant role in judicial decisions, she also argues that decision makers' belief that they must abide by accepted rules of legal analysis significantly limits the role of preferences in their judgments. To reconcile these competing factors, Brarnan posits that judges engage in 'motivated reasoning', a biased process in which decision makers are unconsciously predisposed to find legal authority that is consistent with their own preferences more convincing than those that go against them. But Braman also provides evidence that the scope of motivated reasoning is limited. Objective case facts and accepted norms of legal reasoning can often inhibit decision makers' ability to reach conclusions consistent with their preferences.

The Judicialization of Politics in Colombia: The Old and the New

Abstract: The scope and intensity of judicialization of politics described in this chapter may sound surprising and even incredible for those unfamiliar with Colombia. In a country associated with political violence and the drug trade, a strong tradition of judicial review may appear strange. It is as if there were two countries: one where force reigns, another based on the rule of law. In this chapter, I do not attempt to describe nor explain this paradox. I shall only recall a few basic facts. Colombia has approximately 44 million inhabitants, while guerrilla and paramilitary organizations gather 50,000 armed individuals at the most. These organizations operate mainly in the rural areas of a very large country where 75 percent of the population is urban. The impact of the guerrilla organizations on the country’s institutional processes was dramatically and tragically made evident in 1985 with the violent seizure of the Palace of Justice in Bogota, which resulted in the destruction of the premises and the death of half of the sitting magistrates of the supreme court. However, this did not prevent the supreme court from reassuming its functions two months later, nor did it prevent the strengthening of the administration of justice in general, and of constitutional justice in particular by the creation of a constitutional court, with the adoption of the 1991 constitution.

Bias in Judicial Citations: A Window into the Behavior of Judges?

Abstract: This article tests for the presence of bias in judicial citations within federal circuit court opinions. Our findings suggest bias along three dimensions. First, judges base outside‐circuit citation decisions in part on the political party of the cited judge. Judges tend to cite judges of the opposite political party less often than would be expected considering the fraction of the total pool of opinions attributable to judges of the opposite political party. Second, judges are more likely to engage in biased citation practices in certain high‐stakes situations. These high‐stakes situations include opinions dealing with certain subject matters (such as individual rights and campaign finance) as well as opinions in which another judge is in active opposition. Third, judges more often cite those judges who cite them frequently, which suggests the presence of mutual citation clubs.

Judicial Advisory Opinions and Legislative Outcomes in Comparative Perspective

Abstract: High courts in eleven U.S. states (and a number of countries) provide advi? sory opinions on pending legislation when requested by the executive or legislative branch of the government. To examine the implications of the advisory mechanism for institutional behavior and for policy outcomes, we develop and compare results from two incomplete-information models of judicial-legislative interaction. One game models judicial-legislative inter? action with "ordinary" judicial review, the other models the interaction with an advisory option. We show how the advisory mechanism alters policy outcomes relative to outcomes that would be realized without the advi? sory option. We then identify the conditions under which legislatures request advisory opinions and when they choose to legislate without them. Finally, we consider whether the advi? sory mechanism is a welfare-enhanc? ing or welfare-diminishing institution, and identify conditions that explain why some courts are willing to offer advisory opinions while others refuse to do so. In a well-known episode, President George Washington asked John Jay and the other U.S. Supreme Court justices to advise him on the nation s treaty obligations in light of continuing conflicts among Euro? pean powers. The justices famously declined, citing their concern with vio? lating the separation-of-powers principle.1 Less well known is that many U.S. states rejected the Court's concern and instead created an advisory role for their judiciaries. At one time or another, high courts in nineteen states have given advisory opinions when requested by coordinate branches of government. While some of these courts ultimately turned against their ad? visory role, the high courts of eleven states continue to serve in an advisory capacity today. Opinion over whether the judiciary should serve in an advi? sory role has been divided for centuries. Notable legal commentators, in? cluding Lord Coke, Alexander Hamilton, and Felix Frankfurter, have op? posed judicial advisory opinions. They argue that the abstract setting of advisory proceedings?particularly the absence of detailed factual records as exist in ordinary litigation?undermines a crucial informational compo? nent of judicial decision making. In contrast, other commentators claim that early judicial review is the advantage of advisory opinions. They argue that when legislatures solicit judges' opinions on pending legislation, it re? duces the number of enacted laws that courts will have to strike down in the future. As a result, advisory opinions decrease transaction and reliance costs created by the length of time?often many years?it takes legislation in ordinary litigation to reach high courts for a decision.

Abortion and the Conscience of the Nation

Abstract: The 10th anniversary of the Supreme Court decision in Roe v. Wade is a good time for us to pause and reflect. Our nationwide policy of abortion-on-demand through all nine months of pregnancy was neither voted for by our people nor enacted by our legislators— not a single state had such unrestricted abortion before the Supreme Court decreed it to be national policy in 1973. But the consequences of this judicial decision are now obvious: since 1973, more than 15 million unborn children have had their lives snuffed out by legalized abortions. That is over ten times the number of Americans lost in all our nation's wars.