Courts and Federalism: Judicial Doctrine in the United States, Australia, and Canada

2007 ◽  
Vol 40 (1) ◽  
pp. 247-249
Author(s):  
Anna Esselment
Keyword(s):  
United States ◽  
Legal Reasoning ◽  
The United States ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Division Of Powers ◽  
Independent Variable ◽  
Judicial Doctrine ◽  
The One ◽  
Central Claim

Courts and Federalism: Judicial Doctrine in the United States, Australia, and Canada, Gerald Baier, Vancouver and Toronto: UBC Press, 2006, pp. 207.Is everything old new again? Gerald Baier's insightful book brings back into the mainstream a long neglected examination of federalism from the perspective of judicial review. His analysis of the courts' impact on the development of federalism involves a detailed study of division of powers jurisprudence in the United States, Australia, and Canada. In each of these countries, Baier argues, the decisions of the highest courts continue to affect the shape of federalism, but his central claim turns on how these decisions are made. For Baier, judicial doctrine plays a significant role in influencing the reasoning of the courts and must be considered an independent variable worthy of study in its own right. Many scholars have debated the significance of doctrine on judicial decision making. However, Baier takes issue with scholars who, on the one hand, have characterized doctrine as a tool of objectivity and certainty, and those, on the other hand, who view doctrine as entirely political in nature (27). For Baier, doctrine is neither of these but it is “distinctly legal in character” and it is this legal reasoning that shapes outcomes (27).

Using Process Theory to Explain Judicial Decision Making.

1986 ◽  
Vol 1 ◽  
pp. 57-79 ◽  
Author(s):  
Carl Baar
Keyword(s):  
United States ◽  
Decision Making ◽  
United States Supreme Court ◽  
The United States ◽  
Legal Analysis ◽  
Judicial Decision ◽  
Judicial Process ◽  
Judicial Decision Making ◽  
Judicial Studies ◽  
Canadian Research

This article is part of an effort to place current research on the Canadian judicial process into a broader theoretical context. This effort developed first from a sense that the legal and behavioural frameworks that have dominated the explanation of judicial decision making in the United States Supreme Court obscure more than they illuminate about judicial decision making in Canada; and second from the realization that the most illuminating American studies — those that trace the process by which major cases are brought before the courts and decided — are seen as interesting but atheoretical, as journalism not science. Perhaps our theory is out of joint. And perhaps an effort to understand how American theories and research on judicial decision making can inform Canadian research may be instructive both to American judicial studies and to the work of those outside the United States who are continually tugged toward American approaches that promise liberation from traditional legal analysis.

Precedents and Chinese Judges: An Experiment

2021 ◽  
Author(s):  
John Zhuang Liu ◽  
Lars Klöhn ◽  
Holger Spamann
Keyword(s):  
United States ◽  
Decision Making ◽  
Significant Influence ◽  
Real World ◽  
The United States ◽  
The Other ◽  
Decision Making Process ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Time Reading

Abstract We experimentally study the decision-making process of judges in China, where judges are specifically prohibited from citing prior decisions as the basis for their judgments, and where, in past surveys, most judges explicitly stated that precedent played at most a marginal role in their decisions. In an experiment resembling real-world judicial decision making, we find, however, that precedent seems to have a significant influence on the decisions of the participating Chinese judges. Indeed, judges spend more time reading prior cases than statutes, and they typically read precedents before they access the statutes. On the other hand, judges rarely mention the precedent in their reasons. Our findings suggest that the Chinese judiciary operates much more similarly to its homologues in the United States and elsewhere than their written opinions and much folklore would suggest.

scholarly journals What is an appropriate measure of litigation? Quantification, qualification and differentiation of dispute resolution

2020 ◽  
Author(s):  
Carrie Menkel-Meadow
Keyword(s):  
United States ◽  
Decision Making ◽  
Dispute Resolution ◽  
Legal Culture ◽  
The United States ◽  
Class Action ◽  
Access To Justice ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Toma De Decisiones

This article reviews the claims about rates of litigation in the United States, as either “too much” or “too little” (e.g. “The Vanishing Trial”). While we need to understand aggregate litigation rates to assess access to justice, it may be more important to understand litigation rates in the context of differentiated case types. Litigation, in some cases, produces too “brittle” (binary) or costly outcomes, which is what led to the American “A” (alternative/appropriate) Dispute Resolution movement. This movement (now moving across the globe) may provide “process pluralism” with greater flexibility in outcome and cost variations, (now often called “a”ccesible dispute resolution”). However, litigation is still important in a variety of justice-seeking contexts (e.g. for new rights creation, old rights enforcement, and precedent elaboration). This article suggests that the question of how much litigation is appropriate in any legal culture is dependent on a variety of factors that goes beyond simple aggregate counting. The article concludes with a critique of recent American legal practices in restricting litigation through mandatory arbitration, non-disclosure agreements, class action limitations, privatized mass claim settlements, and restrictive jurisdictional interpretations in judicial decision making and legislation. Este artículo repasa las afirmaciones de que hay “demasiados” o “demasiado pocos” litigios en los EE. UU. Si bien es necesario entender las proporciones de litigios agregados para evaluar el acceso a la justicia, tal vez sea más importante entender las proporciones de litigios en el contexto de tipos de casos diferenciados. En algunas ocasiones, los litigios producen resultados demasiado “frágiles” (binarios) o costosos, lo cual originó el movimiento llamado “American ‘A’ (alternativo/adecuado) Dispute Resolution”. Este movimiento, ahora en expansión por todo el mundo, puede proporcionar “pluralismo procesal” de forma más flexible con diferentes resultados y costes (lo que ahora se denomina “resolución de conflictos ‘a’ccesible”). Sin embargo, el acto de litigar sigue siendo importante en varios contextos de búsqueda de justicia (por ej., para crear nuevos derechos, para aplicación de viejos derechos, y para la elaboración precedente). Este artículo da a entender que la proporción de litigios apropiada en cualquier cultura jurídica depende de varios factores más allá de un recuento. Se concluye con una crítica de prácticas jurídicas recientes en América, consistentes en la restricción del litigio por arbitraje obligatorio, acuerdos de confidencialidad, limitaciones en demandas colectivas, liquidación de reclamaciones colectivas e interpretaciones jurisdiccionales restrictivas en la toma de decisiones judiciales y en la legislación.

How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1875–1891

2002 ◽  
Vol 96 (3) ◽  
pp. 511-524 ◽  
Author(s):  
Howard Gillman
Keyword(s):  
United States ◽  
Decision Making ◽  
Electoral Politics ◽  
The United States ◽  
Federal Courts ◽  
General Interest ◽  
Late Nineteenth Century ◽  
Judicial Decision ◽  
Judicial Decision Making

This case study of late-nineteenth century federal courts in the United States sheds light on two seemingly unrelated questions of general interest to political scientists: What tools are available to party leaders who seek to institutionalize their policy agendas or insulate those agendas from electoral politics? and How do we account for expansions of judicial power? Using an historical–interpretive analysis of partisan agendas, party control of national institutions, congressional initiatives relating to federal courts, the appointment of federal judges, judicial decision making, and litigation patterns, I demonstrate that the increased power, jurisdiction, and conservatism of federal courts during this period was a by-product of Republican Party efforts to promote and entrench a policy of economic nationalism during a time when that agenda was vulnerable to electoral politics. In addition to offering an innovative interpretation of these developments, I discuss the implications arising from this case study for our standard accounts of partisan politics, political development, and the determinants of judicial decision making.

scholarly journals Court Management of AIDS Disputes: A Sociolegal Analysis

1991 ◽  
Vol 16 (04) ◽  
pp. 737-774 ◽  
Author(s):  
Michael C. Musheno ◽  
Peter R. Gregware ◽  
Kriss A. Drass
Keyword(s):  
United States ◽  
Social Order ◽  
The United States ◽  
Cultural Factors ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Medical Authority ◽  
The Social ◽  
Dominant Parties ◽  
Social And Cultural Factors

Historically, disease scares reveal contradictions in the social order. We postulate that courts focus on depoliticizing social tensions revealed by AIDS, legitimating the routines of dominant parties in the AIDS sociolegal network. At the same time, courts deviate from their normal practices try upholding the claims of subordinate parties in this network, particularly people living with AIDS (PWAs) and their allies. Our analysis of 36 AlDS-related court rulings, published during the formative years of AIDS litigation in the United States, supports the notion that courts operate as “double-edged” institutions. To explain the duality of judicial decision making, we concentrate on the powers of social and cultural factors rather than on the doctrinal judgments of the courts. We trace how relational attributes, evident in contestants' characteristics (e.g., plaintiff/defendant, status differentials) and the nature of claims (i.e., restrictive/expansive), combine to account for wins for dominant parties and how other combinations of these attributes define wins for subordinate parties. We also show how judges combine specific interpretational attributes in the text of their rulings (e.g., use of divisive AIDS metaphors, deference to medical authority) to justify wins. We consolidate these findings to discuss how PWAs and their allies might use the courts to their advantage and point out the ways in which the changing epidemiology of AIDS in the United States limits the use of courts.

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