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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01 Sep 1989
TL;DR: Gibson as discussed by the authors defined judicial role orientations as "normative expectations shared by judges and related actors regarding how a given judicial office should be performed" (p. 916).
Abstract: UDICIAL role orientations are judges' measurable attitudes regarding the legal and political functions of courts, and their perceptions of the institutional norms governing judicial decision making. Role orientations have received considerable attention from researchers interested in the judicial process (see, e.g., Becker 1965, 1966; Berry 1974; Flango, Wenner, and Wenner 1975; Galanter, Palen, and Thomas 1979; Gibson 1978, 1981, 1983; Glick 1971; Glick and Vines 1969; Howard 1977; Ish 1975; James 1968; Jaros and Mendelsohn 1967; Scheb 1984; Scheb and Ungs 1987; Ungs and Baas 1972; Vines 1969; Wold 1974). J. Woodford Howard (1977) has defined judicial role orientations as "normative expectations shared by judges and related actors regarding how a given judicial office should be performed" (p. 916). Similarly, but more succinctly, James Gibson (1983) defines judicial role orientations as what judges "think they ought to do" (pp. 9, 17). Gibson sees role theory as "a means of moving beyond an exclusive focus on individuals to consider the influence of institutional constraints on
34 citations
TL;DR: In this paper, the authors developed an instrument for the rational reconstruction of argumentation in which a judicial decision is justified by referring to the consequences in relation to the purpose of the rule.
Abstract: In this paper, the author develops an instrument for the rational reconstruction of argumentation in which a judicial decision is justified by referring to the consequences in relation to the purpose of the rule. The instrument is developed by integrating insights from legal theory and legal philosophy about the function and use of arguments from consequences in relation to the purpose of a rule into a pragma-dialectical framework. Then, by applying the instrument to the analysis of examples from legal practice, it is demonstrated that the instrument can offer a heuristic and critical tool for the analysis and evaluation of legal argumentation that can ‘bridge’ the gap between more abstract discussions of forms of legal argumentation on the one hand, and legal arguments as they occur in actual legal practice on the other hand.
34 citations
Posted Content•
TL;DR: This article developed an interpretive-structural theory that harmonizes these seemingly opposed views of the Supreme Court decision-making, which not only explains why the internal and external views often are both effective but also why, sometimes, one approach might be more effective than the other.
Abstract: Law professors and political scientists generally subscribe to opposed theories of Supreme Court decision making. Law professors, to a great degree, adhere to an internal view: Supreme Court justices decide cases according to legal rules, principles, and precedents. Political scientists follow an external view: justices decide cases according to their political ideologies or preferences. This Article develops an interpretive-structural theory that harmonizes these seemingly opposed views. This interpretive-structural theory not only explains why the internal and external views often are both effective but also why, sometimes, one approach might be more effective than the other. The Article concludes by comparing the interpretive-structural theory with the “new institutionalism” that is emerging in political science.
34 citations
34 citations
TL;DR: This paper analyzed a set of cases in the courts of appeals from a 100-year time period and showed that there is no evidence of heightened deference to the executive during wartime. But they also suggested that concerns about judicial deference during times of war may not be as serious as conventional wisdom suggests.
Abstract: The separation of powers becomes increasingly stressed during wartime, as power is traditionally accumulated by and consolidated in the executive. This article asks to what degree the separation of powers collapses by examining judicial deference to the executive during wartime. By analyzing a set of cases in the courts of appeals from a 100-year time period, this article demonstrates that while judicial preferences undergo a fundamental shift with respect to criminal cases, there is no evidence of heightened deference to the executive during wartime. These findings suggest that a state of war has a preference-altering effect on judicial treatment of criminal defendants. They further suggest that concerns about judicial deference to the executive during times of war may not be as serious as conventional wisdom suggests.
34 citations