Judicial opinion

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

Speaking Law to Power: The Strategic Use of Precedent of the Court of Justice of the European Union:

Abstract: We argue that courts may increase their autonomy and effectiveness by persuading governmental actors, who have powers over the societal impact of judicial decisions, of the legal quality of their r ...

Dialogic Judicial Review and its Critics

Abstract: The idea that judicial review can produce a dialogue between courts and legislatures has been getting much scrutiny in Canada. This attention can be explained by the structure of the Canadian Charter of Rights and Freedoms. By allowing ordinary legislation to place limits on rights as interpreted by the courts and even to override them, the Charter contemplates and invites dialogue between courts, legislatures and the larger society about the treatment of rights in a free and democratic society.In the first part of this article, I will outline the major features of dialogic judicial review in Canada as a political or constitutional theory about how both courts and legislatures can contribute to debates about controversies about rights and freedoms. These key features include both sections 1 and 33 of the Charter, the exercise of remedial discretion to allow legislatures to select among a range of constitutional options and cabinet-dominated Parliamentary government. Some critics of dialogue argue that dialogue theory lacks normative content ... The fact that one institution can escape the consequences of another's actions says nothing about the latter's legitimacy. In the second part of this article, I will respond to this important critique by acknowledging that there is a need to articulate what courts can uniquely contribute to political debates about rights. Courts should play a role that will not otherwise be played by legislatures. In the third part of this article, I will attempt to disentangle empirical and normative strands in this important critique of dialogue theory. At an empirical level, we need a better understanding of when and why legislatures accept certain judicial decisions. This will increasingly take those interested in dialogic judicial review into the realm of case studies of the interaction of the judicial and legislative processes.

Lay Judgments of Judicial Decision-Making

Abstract: This exploratory study examined lay people’s evaluations of judicial decision-making, specifically of the judicial decision-making process and the judiciary’s legitimacy. Seven hundred participants were presented with three judicial decisions, which were portrayed as following on the heels of solid and appropriate legal procedure. Each decision was accompanied by one of four types of reasoning. Participants were asked to evaluate the acceptability of the decisions, focusing on the manner in which they were made and the legitimacy of the decision-maker, regardless of their outcomes. The study yielded four findings. First, lay people’s judgments were highly contingent on the outcome of the judges’ decisions. Consistent with the theory of motivated reasoning, participants found the decisions highly acceptable when they agreed with the judges’ decision, but deemed them relatively unacceptable when they disagreed with them. Second, participants were indifferent to the modes of reasoning when they agreed with the outcomes of the decisions, but were differentially sensitive to the modes of reasoning when the judges’ decisions frustrated their preferred outcomes. Third, when participants were sensitive to the modes of reasoning, they gave higher ratings of acceptability to decisions that openly admitted to good reasons on both sides of the case as compared with decisions accompanied by reasons that supported one side of the case exclusively. Giving no reasons at all was found to be more acceptable than giving a single, curt reason. Fourth, the findings replicated the coherence effect. Implications for the legitimacy of the judiciary are discussed.

Selective Characteristics of Litigation

Abstract: T HIS paper discusses theories of the content of common law rules. Its principal subjects are the general, comprehensive theories of the composite set of common law rules rather than the particularistic theories of small sets of cases that lawyers devise each day to predict judicial decisions. Lawyers may predict with some success the outcome of a dispute from the observation of earlier similar cases, just as today's weather allows a reasonable prediction of tomorrow's. But the "theories" or working hypotheses' upon which such predictions are based do not address either the pattern of the earth's climate or the broader structure of the common law.