Judicial opinion

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

Consensus and suspicion : Judicial reasoning and social change in an Indonesian Society 1960-1994

Abstract: I draw on the archives from two Indonesian courts to analyze how judges have reached decisions in the face of conflicting legal norms. Judges in the town of Takengen, in the highlands of Aceh province, hear claims based on Islam and on local social norms (adat). Between 1960 and the mid-1990s, they changed the way they resolved disputes over inheritance cases, from accepting village settlements as valid, to rejecting those settlements as either contrary to Islam or as coercive. I examine the justifications offered in the earlier and the later periods for these decisions. I find that in both periods judges employed creative legal devices to resolve or bridge differences between Islam and adat, and that they consistently referred to broader cultural values of agreement and fairness. I suggest that the change in their decisions was due to the combination of political centralization, increased legitimacy of the Islamic court, and judges' perceptions of a more individualized society. Between 1960 and 1994, Islamic court judges in the Gayo Highlands of Central Aceh, Indonesia, radically changed the way they judged disputes over family property. Whereas once they had generally upheld local Gayo social norms (adat) about who received family property, by the early 1990s they consistently overruled settlements based on those same norms and redivided property according to Islamic law. From a conservative court that turned down requests to overturn past divisions of farm lands, the religious court became an activist court that routinely overturned such divisions. And yet over this time the relevant substantive law changed very little, and judges recognized that both adat and Islam provided legitimate bases for decisions. Why, then, and based on what reasons, did the court shift its overall stance so markedly? I take this question as my point of departure for exploring the recent social history of judicial reasoning in the Gayo Highlands, drawing on case dossiers, interviews with judges, and field research into the political and economic history of the region. The issues involved are broad ones. Judges everywhere find themselves having to select among competing legally relevant social norms, such as what counts as a contract, or where lie "the best interests of the child."1 Choosing among norms, or, more often, weighing them against each other, usually is shaped by a sense of community standards, by an estimate of how the choice will affect community life, or by policy preferences. Furthermore, this weighing is likely to change along with the social and political context in which judges live and work. Postcolonial societies offer particularly interesting places to study how judges have reasoned in the face of competing norms. Judges in these societies have been finding their interlegal feet amidst a multiplicity of statutes, court decisions, religious doctrines, and colonial-era treatises on "customary law."2 Their public statements on laws and customs often become flash points for national cultural debates. In most societies with large Muslim populations, these debates turn on judgments about the relative legitimacy of secular and religious sources of laws.3 In Indonesia, a multiconfessional state with the world's largest Muslim population, not only have there been extensive public discussions about the validity of claims based on customary norms, Islamic law, stat utes, and judicial decisions, but these discussions also have been part of a process of general, heightened reflection on the proper relation of Islam to national identity. In the Gayo courts judges have paid particular attention to local processes of reaching consensus, and their evaluations of such processes are of significance to broader political discussions in Indonesia. Achieving consensus through deliberation," musyawarah mufakat, a central element in Indonesian ideology, bears some relationship, not yet well understood, to local ways of resolving disputes. …

The Supreme Court's abortion decisions and public opinion in the United States.

Abstract: Between January 1973 and July 1976, the United States Supreme Court handed down three major decisions concerning abortion-two in 1973 and one in 1976. The 1973 decrees struck down most state laws restricting pregnancy termination and ruled that, until after the first trimester, the decision to have an abortion rests with the wvoman and her physician. The Court said that between the beginning of the fourth month of pregnancy and fetal viability (approximately six moinths gestatioi) state regulation should be concerned with measures designed to preserve the mother's health but should not be needlessly restrictive. After viability, the state was held justified in regulating and even proscribing abortion, except where necessary for the preservation of the life or health of the mother. The Court nullified state statutes limiting the perfolrmance of abortions to hospitals; invalidated abortion review committees; and abrogated restrictions on migration between states for purposes of abortion. In 1976 the Court specifically refused to legitimate action by interested parties-such as the woman's husband or parents-to veto her free access to abortion. Implementation of these judicial rulings is turning out to be an arduous process, analogous in many ways to implementation of the earlier decisions of the US Supreme Court on school desegregation. The abortion decisionis are beginning to exemplify the increasingly familiar problems inivolved in the use of judicial review as a means of effecting social change; mobilization of extreme opposition and steady erosion of the Court's intent by means of collateral deterrence.'

Legislating from a Radical Hague: The United Nations Special Tribunal for Lebanon Invents an International Crime of Transnational Terrorism

Abstract: In 2011, the Appeals Chamber of the UN Special Tribunal for Lebanon purported to identify a customary international crime of transnational terrorism and applied it in interpreting domestic terrorism offences under Lebanese law. This article argues that the Tribunal's decision was incorrect because all the sources of custom relied upon by the Appeals Chamber – national legislation, judicial decisions, regional and international treaties, and UN resolutions – were misinterpreted, exaggerated, or erroneously applied. The Tribunal's laissez-faire attitude towards custom formation jeopardizes the freedom from retrospective criminal punishment, subjugating the human rights of potential defendants to the Tribunal's own moralizing conception of what the law ought to be. The decision is not good for international law or public confidence in its institutions and processes.

Bending the law: geometric tools for quantifying influence in the multinetwork of legal opinions

Abstract: Legal reasoning requires identification through search of authoritative legal texts (such as statutes, constitutions, or prior judicial opinions) that apply to a given legal question. In this paper, using a network representation of US Supreme Court opinions that integrates citation connectivity and topical similarity, we model the activity of law search as an organizing principle in the evolution of the corpus of legal texts. The network model and (parametrized) probabilistic search behavior generates a Pagerank-style ranking of the texts that in turn gives rise to a natural geometry of the opinion corpus. This enables us to then measure the ways in which new judicial opinions affect the topography of the network and its future evolution. While we deploy it here on the US Supreme Court opinion corpus, there are obvious extensions to large evolving bodies of legal text (or text corpora in general). The model is a proxy for the way in which new opinions influence the search behavior of litigants and judges and thus affect the law. This type of “legal search effect” is a new legal consequence of research practice that has not been previously identified in jurisprudential thought and has never before been subject to empirical analysis. We quantitatively estimate the extent of this effect and find significant relationships between search-related network structures and propensity of future citation. This finding indicates that “search influence” is a pathway through which judicial opinions can affect future legal development.

The Myth of the Generalist Judge

Abstract: Conventional judicial wisdom assumes and indeed celebrates the ideal of the generalist judge, but do judges really believe in it? This Article empirically tests this question by examining opinion assignments in the federal courts of appeals from 1995-2005. It reveals that opinion specialization is a regular part of circuit court practice, and that a significant number of judges specialize in specific subject areas. The Article then assesses the desirability of opinion specialization. Far from being a mere loophole, opinion specialization turns out to be an important development in judicial practice that promises to increase judicial expertise without incurring many of the costs commonly associated with specialized courts.