Judicial opinion

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

Private International Trade in the Shadow of the Territoriality of Law: Why Does It Work?

Abstract: The theory of international trade is dominated by a model presupposing a legal order that is perfect in its specifications and controllability, binding for all economic agents, no matter their nationality. World order appears to be cosmopolitan, as defined by Kant [20]. An international private law community such as this, however, does not exist. In fact, there is a territoriality of law, leading to problems largely neglected in the traditional theory of international trade. They are at the heart of what we would like to call the New Institutional Economics of International Transactions (NIEIT) [29; 30; 31; 32; 33]. These problems can best be described in the terminology of property-rights analysis. Economic transactions consist of an exchange of property rights, that is, of "sanctioned behavioural relations" [13, 1139]. While for domestic trade the legal foundation and its enforcement through the "protective state" [7, 68, 85] are unequivocal, international transactions touch a multitude of legal systems and the monopoly of power claimed by each state within its boundaries. Collisions of norms and gaps between different norm systems then appear. An accord in judicial decisions is often coincidental, and the assistance of the judicial and penal institutions in foreign countries is not at all a matter of course. Thus, because of the absence of a world state, the property rights of economic agents involved in private international trade are often incompatibly defined and insufficiently protected. Consequently, the territoriality of law results in a specifically high amount of uncertainty that we call the constitutional uncertainty in international trade. For agents involved in foreign trade this kind of uncertainty poses coordination problems of a special type. They are reflected in transaction costs, i.e., the costs of coordinating the economic activities among individuals. Consider the following examples [33, 27; 30, 50]: In the year 360 B.C.-as is reported by the Greek author Demosthenes-Zenothemis and the shipowner Hegestratos convinced traders of Syracuse to advance money to them upon declaring untruthfully that their vessel was fully laden with corn belonging to them. The two swindlers sent the money to Massalia, and three days after sailing, Hegestratos tried to scuttle the vessel in order to circumvent the repayment of the credit. But the passengers were alert, and the scuttling attempt failed. Nevertheless, we have reason to believe that the Syracusian traders never saw their money again [19, 4].

Empirically Testing Dworkin's Chain Novel Theory: Studying the Path of Precedent

Abstract: This article provides an empirical study of the effect of precedent on judicial decisionmaking. Precedent is much analyzed as a controlling factor for judicial decisions but rarely tested for its effect. Some have argued that reliance on precedent creates a system of path dependence of the law, which may yield undesirable herd behavior. As a framework for the study of precedent, we use Dworkin's metaphor of a chain novel, in which each deciding judge writes upon a background to which he or she must adhere, thereby influencing his decisions. This yields testable hypotheses about judicial decisionmaking. Given the considerable data on the ideological component of judicial decisionmaking, it provides a means to study the effect of precedent, as a constraint on judicial ideology. First, we examine cases of first impression, for which there is no controlling precedent, like the very first chapter of a chain novel. The hypothesis is that the absence of precedent in these cases frees judges to use their ideology to a greater degree than in other cases with precedents, and this hypothesis is confirmed. Judges render more ideological opinions in cases of first impression. The second study considers the growth of precedent over time in the context of 42 U.S.C. Section 1983 litigation. The hypothesis is that as precedents accumulate, they steadily narrow the range of judicial discretion, so the effect of ideology should dwindle over time, as might be expected from a chain novel. The data falsify this hypothesis, as ideology seems to increase somewhat as a determinant as more precedents build up. The results suggest that precedent acts as only a limited constraint on judicial decisionmaking and the path dependence of a system of stare decisis is exaggerated.

Is There a There There - Toward Greater Certainty for Internet Jurisdiction

Abstract: The unique challenge presented by the Internet is that compliance with local laws is rarely sufficient to assure a business that it has limited its exposure to legal risk. Since websites are accessible worldwide, the prospect that a website owner might be haled into a courtroom in a faroff jurisdiction is much more than a mere academic exercise, it is a very real possibility. The article identifies why the challenge of adequately accounting for the legal risk arising from Internet jurisdiction has been aggravated in recent years by the adoption of the Zippo legal framework, commonly referred to as the passive versus active test. The test provides parties with only limited guidance and often results in detrimental judicial decisions from a policy perspective. Given the inadequacies of the Zippo passive versus active test, it is now fitting to identify a more effective standard for determining when it is appropriate to assert jurisdiction in cases involving predominantly Internet-based contacts. With the benefit of the Zippo experience, the new test should remain technology neutral so as to: a) remain relevant despite ever-changing web technologies; b) create incentives that, at a minimum, do not discourage online interactivity; and c) provide sufficient certainty so that the legal risk of operating online can be effectively assessed in advance. The solution submitted in the article is to move toward a targetingbased analysis. Unlike the Zippo approach, a targeting analysis would © 2001 Michael Geist. t Assistant Professor, University of Ottawa Faculty of Law, and Director of ECommerce Law, Goodmans LLP. The author would like to thank the Uniform Law Conference of Canada and Industry Canada for their financial support in sponsoring this paper; Teresa David and William Karam for their research assistance; Vaso Maric, Rene Geist, Harvey Goldschmid, Ted Killheffer, Denis Rice, as well as the participants at the Consumer Measures Committee/Uniform Law Conference of Canada April 2001 Workshop on Consumer Protection and Jurisdiction in Electronic Commerce, the TPRC 2001 Conference, and the Georgetown University Advanced E-commerce Institute, for their comments on earlier versions of this paper; the editors of the BERKELEY TECHNOLOGY LAW JOURNAL for their excellent work in bringing this paper to publication; and to Allison Geffen for her continued love and support. Any errors or omissions remain the sole responsibility of the author. 1346 BERKELEY TECHNOLOGY LAW JOURNAL [Vol. 16:1345 seek to identify the intentions of the parties and to assess the steps taken to either enter or avoid a particular jurisdiction. Targeting would also lessen the reliance on an effects analysis, the source of considerable uncertainty since Internet-based activity can ordinarily be said to create some effects in most jurisdictions.

Justice for Sale? Campaign Contributions and Judicial Decision Making

Abstract: While federal judges are selected by appointment, many state judges are selected through competitive elections As state judicial campaigns become progressively more costly and political, judicial candidates have turned increasingly to lawyers and law firms as a source of campaign funds Given that contributing lawyers frequently appear in court, it is natural to wonder whether judges are more likely to rule in favor of attorneys who offered financial support to their campaign Looking at cases from the Supreme Court of Georgia's 2003 term, I show that campaign contributions are indeed correlated with judges' decisions Further, using a two-stage probit least squares estimator to address questions of causality, I show that the campaign contributions directly affect judicial decision making

Clinical judgments in the decision to commit. Psychiatric discretion and the law.

Abstract: • Judicial decisions and statutory reforms point to a return to psychiatric discretion when clinical needs and patients' rights must be balanced. In seeking to commit patients, psychiatrists have been accused of contravening the legal rights of their patients by applying criteria other than those prescribed by law. This study examined the factors involved in the psychiatrists' decisions to seek commitment or to release 90 voluntarily hospitalized patients; we found psychiatrists' decisions to be appropriately correlated to legal criteria and legally relevant clinical and psychosocial factors. Interpersonal variables did not play a material role in the decision. Independent assessment of the patients' clinical status were consistent with clinicians' judgments of dangerousness. These findings indicate that this group of psychiatrists, faced with the decision to seek commitment, based their judgments on clinically relevant data rather than interpersonal factors and conformed to the dangerousness requirements of the commitment law.