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.

Rethinking the rise of the German Constitutional Court: From anti-Nazism to value formalism

Abstract: The German Constitutional Court, we often hear, draws its considerable strength from the reaction to the German Nazi past: Because the Nazis abused rights and had been elected by the people, the argument runs, it was necessary to create a strong Court to guard these rights in the future. This contribution proceeds in two steps. First, it sets out to show that this "Nazi thesis" provides an inadequate explanation for the Court's authority and rise. The German framers did not envisage the strong, rights-protecting, counter-majoritarian court it has become today. Even where the Nazi thesis does find some application, during the transitional 1950s and 1960s, its role is more complicated and more limited than its proponents assume. Second, this article offers an alternative way of making sense of the German Court's rise to power. Against a comparative background, I argue that the German Court's success is best understood as a combination between a (weak) version of transformative constitutionalism and a hierarchical legal culture with a strong emphasis on a scientific conception of law and expertise. The Court could tap into the resources of legitimacy available in this culture by formalizing its early transformative decisions, producing its own particular style, "value formalism." Value formalism, however, comes with costs, most notably an interpretive monopoly of lawyers shutting out other voices from constitutional interpretation.

The Supply of Amicus Curiae Briefs in the Market for Information at the U.S. Supreme Court

Abstract: We argue that the Supreme Court's expressed and latent demand for information on the availability and implications of legal policy alternatives will affect the supply of information provided to the Court by organized interests. An analysis of the annual growth in amicus filings at the Court during the 1949 through 2008 terms largely supports our specific hypotheses. The rate at which the Court cites amicus briefs and shifts in the Court's ideological location or agenda exert a positive effect on the growth of amicus filings, while the evidence for the effect of dissensus is mixed. We further show that the supply of briefs does not affect the Court's expressed or latent demand for information.

A Dark Side of Virtue: The Inter-American Court and Reparations for Indigenous Peoples

Abstract: The Inter-American Court of Human Rights has now developed a significant jurisprudence on indigenous peoples, far more extensive than the case law of the other regional human rights tribunals Also, unlike the various United Nations institutions that promote indigenous rights, the Inter-American Court issues binding and detailed judgments As a result, the Court has become a global leader in the adjudication and redress of indigenous claims For this reason, this first close and critical examination of the Court’s reparations for indigenous peoples is vital With respect to non-monetary remedies, the Court has ordered the restitution of communal lands and other powerful measures Generally, these pioneering remedies have directly responded to victims’ preferences for restoration In contrast, the Court’s monetary reparations frequently disappoint Examples include token sums ordered for plundered ancestral resources and a neglect of individualized compensation By undercompensating indigenous petitioners in these ways, the Court fails to recognize them as full-fledged rights bearers Fully entitled to collective and individual rights, they accordingly require appropriate remedies on both communal and individual levels This critique is urgent because indigenous cases continue to flow to the Court, and its criteria are increasingly adopted by UN authorities, regional human rights institutions, and national courts Ultimately, this Article urges the Court to commit to a victim-centered approach for monetary damages, as it generally has done for non-monetary remedies Once rights violations are proven, if the Court does not reasonably respond to the way victims want to be restored, it will not adequately redress them As a result, the Court will betray its mandate as a human rights tribunal and undermine the individual and collective rights of indigenous peoples

Extreme Dissensus: Explaining Plurality Decisions on the United States Supreme Court

Abstract: Plurality decisions on the Supreme Court represent extreme dissensus. In those cases, no clear majority is formed for any one controlling rationale for the final disposition. Such decisions are important to understand both because they result in the erosion of the Court’s credibility and authority as a source of legal leadership, and because they teach us broader lessons about judicial decision making. In this paper we ask: what causes the Court to issue an opinion which lacks precedential value? We propose and test three theories to explain plurality decisions - a social consensus account, a “hard” case theory, and an explanation based on the “collegial game.” Hypotheses are tested based on all orally argued cases during the 1953-2006 terms. We find that splintering is more likely when the Court reviews contentious or politically salient questions, in constitutional cases, and when the median justice writes the opinion. When the Chief Justice assigns the opinion, plurality decisions are less likely. We discuss our findings in light of existing theories of judicial decision making and examine how our new understanding of plurality opinions sheds light on decision making on the Court more generally.

The Supreme Court and the Judicial Genre

Abstract: This paper exploits a relatively new approach to quantitative text analysis — topic modeling — to examine the subject matter of Supreme Court decisions, and in particular to analyze how the semantic content produced by the Court differs from the published decisions of the U.S. Appellate Courts. To conduct this analysis, we fit a topic model to the joint corpus of decisions (Supreme Court plus Appellate Court). The topic model enables a quantitative measurement of differences in semantic content between three corpora: the Supreme Court decisions, the Appellate Court decisions, and Appellate Court cases selected for review. We develop new methods to estimate these differences over time. We reach two findings. First, the Supreme Court has become substantially more semantically idiosyncratic in recent decades, as measured by the use of the topic distribution within a decision as a predictor of the authoring court. We then examine potential causes of this trend, isolating the use of the Court’s case selection power. We find that the topic model based measure of semantic difference between the cases selected for review by the Court does not appear to be increasing over time, indicating instead that the Court has become more distinctive in how it discusses a similarly distinct pool of cases. Normative implications and avenues for future research are discussed. This work demonstrates the utility of topic modeling as a valuable supplement to and/or replacement of hand-coded labels in the study of hierarchically arranged judiciaries. While this case study focuses on the U. S. Courts, extensions and broadening to other national and international judicial corpora can be readily accomplished. More generally, this work opens the door for broader application of topic models within empirical legal studies and related disciplines to study the rich textual corpora generated by legal institutions.