Judicial opinion

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

The Pragmatic Court: Reinterpreting the Supreme People’s Court of China

Abstract: This paper examines the institutional motivations that underlie several major developments in the Supreme People’s Court of China’s recent policy-making. Since 2007, the Court has sent off a collection of policy signals that escapes sweeping ideological labeling: It has publicly embraced a populist view of legal reform, encouraging the use of mediation in dispute resolution and popular participation in judicial policy-making, but continues to advocate legal professionalization as a long-term policy objective. It has also eagerly attempted to enhance its own institutional competence by promoting judicial efficiency, simplifying key areas of civil law, and expanding its control over lower court adjudication. This paper argues that the strongest institutional motivation underlying this complex pattern of activity is, contrary to some common assumptions, neither simple obedience to the Party leadership nor internalized belief in some legal reform ideology, whether legal professionalism or populism. Instead, it is the pragmatic strengthening of the Court’s own financial security and sociopolitical status – the Court is, in many ways, a “rational actor” that pursues its institutional self-interest. This theory of “institutional pragmatism” brings unique analytical cohesion to the Court’s recent behavior, giving us a clearer sense of its current priorities and, perhaps, its future outlook.

Money, Politics and Judicial Decisions: A Case Study of Arbitration Law in Alabama

Abstract: This article presents the results of a study of 106 decisions by the Supreme Court of Alabama from January 18, 1995 through July 9, 1999. The decisions are in the area of arbitration law and reveal the remarkably close correlation between a justice's votes on arbitration cases and his or her primary source or campaign funds. Justices whose election campaigns are funded by plaintiffs' lawyers oppose arbitration, whereas justices whose campaigns are funded by business favor arbitration. The correlation holds not just with regard to ideologically-charged doctrines, like unconscionability, but also with seemingly bland questions of contract formation, interpretation and waiver.

Tracking Public Mood in the Supreme Court: Cross-Time Analyses of Criminal Procedure and Civil Rights Cases

Abstract: Representational models of judicial decision making posit that the Supreme Court is a permeable institution, subject to external pressures-namely elite and mass opinion. Court rulings, therefore, should be demonstrably congruent with the views of the majoritarian electoral/political alliance. Building upon an innovative study by Mishler and Sheehan (1993), the relationship between public and elite attitudes and Supreme Court rulings are examined in two important issue areas: criminal procedure and race- related civil rights. The results indicate that permeability of the Court varies to some degree according to issue area. While public opinion (in the pre- Reagan years) has a direct affect on Supreme Court liberalism in both issue areas, the direct impact of elite opinion is evidenced only in the area of criminal procedure, not in the area of race-related civil rights. The relation ship between public opinion and Court liberalism during the Reagan years, however, is negative as the gap between liberalism i...

The Importance of Being Positive: The Nature and Function of Judicial Review

Abstract: This lecture advances a positive theory of judicial review. Most legal theory about judicial review is normative: it envisions judicial review as posing either a hope for, or a threat to, democracy. The hope is that courts will protect rights; the threat is that judicial review will undermine popular governance. Depending on which position a scholar believes is correct, there follows prescription about how judges should behave. The lecture relies upon learning from the social sciences - primarily history and political economy - to undermine the central assumption of both the hope and threat stories. At the heart of both hope and threat theories is an essentially empirical assumption: that the judiciary can impose its will in the face of contrary political sentiment. Evidence and theory from the social sciences, however, suggests courts are unlikely to be able to play the heroic role, and that in fact they have not acted contrary to popular will for an extended period of time. If both hope and threat are overstated because judicial decisions cannot run into the face of popular will, what is the function of judicial review? Turning from critique, the lecture examines what we know about how judicial review operates, to build a positive theory of judicial review. The primary reaction to contested judicial decisions is backlash, followed by a period of engagement in which political forces seek to overturn unpopular decisions. Evidence shows that over time judicial decisions come into line with longstanding popular will. In light of the actual process of judicial review, it is best understood as promoting dialogue in society about fundamental constitutional values. Courts foment debate over contested constitutional issues, and ultimately bring the Constitution into line with dominant views on those issues. There are normative reasons to applaud this role. But whether they are persuasive or not, as a positive matter this is what judicial review does.

Sex offender risk assessment : consideration of human rights in community protection legislation

Abstract: ObjectivesRisk assessments provided to judicial decision makers as a part of the current generation of legislation for protecting the public from sexual offenders can have a profound impact on the rights of individual offenders. This article will identify some of the human rights issues inherent in using the current assessment procedures to formulate and communicate risk as a forensic expert in cases involving civil commitment, preventive detention, extended supervision, or special conditions of parole. MethodBased on the current professional literature and applied experience in legal proceedings under community protection laws in the United States and New Zealand, potential threats to the rights of offenders are identified. Central to these considerations are issues of the accuracy of current risk assessment measures, communicating the findings of risk assessment appropriately to the court, and the availability of competent forensic mental health professionals in carrying out these functions. The role of the forensic expert is discussed in light of the competing demands of protecting individual human rights and community protection. ConclusionActuarial risk assessment represents the best practice for informing judicial decision makers in cases involving sex offenders, yet these measures currently demonstrate substantial limitations in predictive accuracy when applied to individual offenders. These limitations must be clearly articulated when reporting risk assessment findings. Sufficient risk assessment expertise should be available to provide a balanced application of community protection laws.