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Majority opinion

About: Majority opinion is a research topic. Over the lifetime, 4107 publications have been published within this topic receiving 54845 citations. The topic is also known as: opinion of the court.


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01 Apr 1994
TL;DR: Kahn as mentioned in this paper argues that the dominant view of the Supreme Court as just another political institution is incorrect, and refutes the longstanding stereotypes of an activist Warren Court trying to legislate individual rights and of a visionless Burger Court hiding in its predecessor's shadows.
Abstract: Ronald Kahn greatly revises our understanding of Supreme Court decision making and its relation to constitutional theory in the eras of chief justices Earl Warren, Warren Burger, and William Rehnquist. In the process, he refutes the longstanding stereotypes of an activist Warren Court trying to legislate individual rights and of a visionless Burger Court hiding in its predecessor's shadows. Kahn contends that the dominant view of the Supreme Court as just another political institution is incorrect. That view depicts an unprincipled court wavering before external politics and public opinion or bending to the political agendas of individual justices. Kahn counters that justices throughout the postwar epoch, while well aware of the political environment, have consistently relied upon legal precedent and constitutional principles-especially in cases relating to individual rights and popular sovereignty. The Burger Court in particular, Kahn argues, had both a coherent vision and a highly complex understanding of malfunctions in the American polity and of fundamental rights in the Constitution. He cites as salient examples the Burger Court's controversial decision in Roe v. Wade and its decisions regarding gender equality, religious freedom, and the right to education of all children, even illegal aliens. He suggests that this same sensitivity, despite enormous popular and political pressures, has been demonstrated by the Rehnquist Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). Kahn effectively reveals how the Supreme Court is influenced by its ongoing dialogue with scholars, judges, journalists, and others who debate the connections between constitutional law and democratic government. His critique of works by such prominent theorists as Robert Dahl, Martin Shapiro, Vincent Blasi, Anthony Lewis, Archibald Cox, Alexander Bickel, Herbert Wechsler, John Hart Ely, and Laurence Tribe, among others, provides valuable insights into this exchange between the court and its "interpretive community." His chapter on the new civic republicans like Michael Perry, Mark Tushnet, and Sanford Levinson, is especially provocative in its analysis of a potentially more productive guide for jurisprudence in the 1990s. Combining theoretical sophistication with a fundamental comprehension of our nation's political institutions, Kahn's study should help demystify for scholars and students alike the workings of the Court and its place in our democracy.

20 citations

Journal Article
TL;DR: The International Criminal Court (ICC) has been a central player on the scene of international criminal justice for the past ten years as discussed by the authors, and its institutional and administrative framework has been extensively studied.
Abstract: I INTRODUCTION One year after the tenth anniversary of the International Criminal Court (ICC or Court), it is almost impossible for the international legal scholar not to come across one of the many "stock takings" and assessments of the Court's (1) juridical performance so far, its achievements, impact, and challenges. (2) This development is highly fortunate because it creates the necessary momentum to galvanize further support for the Court, even from the many skeptics who predicted the Court would die an unnoticed and uneventful death within a couple years of its creation. (3) With its current 122 States Parties, the Court has come a long way since its inception with the sixtieth ratification in 2002. (4) Global support seems to be growing slowly yet steadily, with thirteen accessions since only 2010. However, in this article we do not intend to examine the Court's performance, achievements, or shortcomings as a central player on the scene of international criminal justice. Rather, we will take a critical look behind the scenes of the Court, focusing on its institutional and administrative framework as an institution that is striving to become "[a] [m]odel of [p]ublic [administration." (5) In order to evaluate the merits and shortcomings of the Court's structure, as well as the approach taken by its senior management and stakeholders when fundamental decisions had to be made, we begin this article with a brief overview of the Court's institutional and administrative structure and a discussion of the relationship of the principal organs of the Court to one another. Subsequently, we discuss a small selection of elemental topics--most prominently among them the Court's financial management--with a view to evaluating the extent to which the members of the institution have been able to learn from their initial mistakes and revamp the Court's operations into those of an efficient and effective international criminal justice mechanism. II MANAGERIAL PRACTICES The Court, like any other institution of comparable size and structure, heavily relies on managerial practices that have evolved over the past eleven years of its existence. Its administrative framework has developed in response to the growing demands of administrative regulation, in particular through Presidential Directives, Administrative Instructions, and Information Circulars. (6) The Court's practices, be they in conjunction with governing administrative norms or in the absence of any formal codification, remain a major driver of the Court's managerial dynamics. In the abstract, managerial practices can best be described as the recurrent performances of material activities. (7) In a given normative and hierarchical framework, these routine contributions and activities serve to define the average scope and structure of operations, as well as relevant modi operandi. Managerial practices always stand in a specific relationship to the normative framework in which operations are carried out. They define the relationship between (formal) rules and (informal) practices in a given operative context. The more detailed the normative framework that regulates the pertinent procedures and administrative structures, the more limited the scope for the development of practices that are not a mere mise en oeuvre of the authoritative legal context, but rather a pragmatic solution to a recurrent operational challenge. In particular, heavily hierarchical management structures with a strong concentration of decision-making resting upon a comparatively limited number of governing leaders will rely on governance structures that leave little space for the development of pragmatic practices. Examples of this can be found in the military. However, where a governance structure is newly established it is highly unlikely that a comprehensive normative framework regulates all of its operations and processes in sufficient detail. …

20 citations

Journal ArticleDOI
TL;DR: In this article, the authors examine the expansion of the policy making power of the Mexican Supreme Court since 1994, when a reform turned the court into a constitutional tribunal and find that the Court can never act against the interests of both the executive and legislative branches simultaneously, otherwise the ruling is likely to be overturned and/or justices sanctioned.
Abstract: We examine the expansion of the policy making power of the Mexican Supreme Court since 1994, when a reform turned the court into a constitutional tribunal. We build on the intuition that the Court can never act against the interests of both the executive and legislative branches simultaneously, otherwise the ruling is likely to be overturned and/or justices sanctioned. The Court can only influence policy when the elected branches have polarized preferences and the Court itself is centrally located. Despite the onset of divided government since 1997, the conditions for Court influence only appeared with the triumph of the PAN in the presidency in 2000. Multivariate regression confirms that the probability of striking down a law increased significantly after that year, but only in rulings likelier to involve substantive ideological disputes. In rulings used to resolve federalism disputes the Court showed a marked propensity to side with the PRI, the party that set the new judicial system in place and also controls most subnational units. Justices also differ in their view of the Supreme Court's role in a democracy. We explore this by analyzing justices’ voting records to estimate their ideal points, revealing the existence of two dimensions. Case studies confirm that the first dimension of cleavage is the standard left-right divide of normal politics, and the second corresponds to legalism vs. interpretativism.

20 citations

Journal ArticleDOI
TL;DR: The authors formalizes the "part-by-part" opinion voting used by the justices, a feature that, together with separable preferences over policy issues, implies stable policy outcomes around the issue-byissue median of the justices.
Abstract: Over the last decade the scholarship on judicial politics has increasingly emphasized the strategic aspects of decision making in the United States Supreme Court. This scholarship, however, has struggled with two significant limitations—the restriction to unidimensional policy spaces and the assumption of binary comparisons of alternatives. These two assumptions have the advantage of implying stable, predictable outcomes, but lack a sound theoretical foundation and assume away potentially important aspects of strategic behavior on the Court. In this article, we identify institutional features of the Court that, under certain conditions, allow us to relax these two assumptions without sacrificing stable, predictable policy outcomes. In particular, we formalize the “part-by-part” opinion voting used by the justices, a feature that, together with separable preferences over policy issues, implies stable policy outcomes around the issue-by-issue median of the justices.

20 citations

Posted Content
TL;DR: In this article, the CJEU's interpretation and application of TFEU article 344 is compared with the approach taken in Opinion 2/13 with that of the earlier case-law.
Abstract: On 18 December 2014 the Court of Justice of the European Union (CJEU) delivered Opinion 2/13, and stunned the legal world by declaring that the Draft Agreement on the Accession of the EU to the European Convention on Human Rights was incompatible with the constituent treaties of the Union. In this contribution note I will focus on only one aspect of Opinion 2/13: the CJEU's interpretation and application of the TFEU article 344. Specifically, I will compare the approach taken in Opinion 2/13 with that of the CJEU's earlier case-law. I will argue that the reasoning and conclusion concerning TFEU article 344 in Opinion 2/13 is clearly at odds with this earlier case-law, notably the leading MOX Plant case. I will also demonstrate how the approach to the issue in Opinion 2/13 – if it indeed reflects lex lata – seriously affects numerous treaties that have already been concluded by the Union.

20 citations


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Performance
Metrics
No. of papers in the topic in previous years
YearPapers
202313
202238
202114
202027
201923
201820