scholarly journals Examining Judicial Decision-making: An Axiological Analytical Tool

2020 ◽  
Vol 29 (3) ◽  
pp. 55
Author(s):  
John McClellan Marshall
Keyword(s):  
Decision Making ◽  
Analytical Tool ◽  
Decision Making Process ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Complex Series ◽  
The People ◽  
The Law

<p>One thing that is characteristic of the judicial decision-making process regardless of the structure of the judiciary in a particular country or region is that the judge is responsible for making a decision that is both consistent with the law and is such that the people will follow it. This presents a judge with a very complex series of variables that must be considered when formulating a decision. The axiological approach to the analysis of the process and the outcome, the decision if you will, enhances both the quality of the content and the “validity” of the decision.</p>

scholarly journals Deliberação Interna e Legitimação das Cortes Supremas

2018 ◽  
Vol 12 (2) ◽  
Author(s):  
Bruno Meneses Lorenzetto ◽  
Letticia De Pauli Schaitza
Keyword(s):  
Decision Making ◽  
Separation Of Powers ◽  
Decision Making Process ◽  
Judicial Decision ◽  
Supreme Courts ◽  
Judicial Decision Making ◽  
Legislative Power ◽  
Decision Making Models

DELIBERAÇÃO INTERNA E LEGITIMAÇÃO DAS CORTES SUPREMAS  INTERNAL DELIBERATION AND SUPREME COURTS’ LEGITIMACY   Bruno Meneses Lorenzetto*Letticia de Pauli Schaitza**  RESUMO: O artigo parte da superação da concepção estática de separação de poderes e critica os argumentos normalmente utilizados para justificar a legitimidade das Cortes Supremas para rever atos do Poder Legislativo por ignorarem que os juízes não decidem em um vácuo institucional e que a interação com seus pares influencia na tomada da decisão. Dessa forma, através da exposição dos modelos legal, atitudinal e estratégico, explicativos da tomada de decisão judicial, apresenta as Cortes não apenas como interlocutoras externas, mas sobretudo como tribunais colegiados deliberativos, a fim de enfatizar a importância da deliberação colegiada para a legitimidade da jurisdição constitucional e a qualidade da sua performance. PALAVRAS-CHAVE: Legitimação Jurisdicional. Deliberação. Cortes Supremas. ABSTRACT: The article assumes the overcoming of the static conception of the separation of powers and criticizes the arguments normally used to justify the legitimacy of the Supreme Courts to review acts of the Legislative Power to the extand that they ignore that the judges do not decide in an institutional vacuum and that the interaction with their peers influences in the decision making process. Thus, through the exposition of legal, attitudinal and strategic judicial decision-making models, it presents the Courts not only as external interlocutors, but above all as collegiate deliberative tribunals, in order to emphasize the importance of collegial deliberation to constitutional jurisdiction legitimacy and the quality of its performance. KEYWORDS: Jurisdictional Legitimacy. Deliberation. Supreme Courts.  SUMÁRIO: Introdução. 1 A Nova Configuração do Princípio da Separação dos Poderes e a Legitimação da Corte Constitucional. 2 Cortes Supremas como “Deliberadores Internos”: a Deliberação em um Tribunal Colegiado. Considerações Finais. Referências. _________________________* Doutor em Direito pela Universidade Federal do Paraná (UFPR). Professor de Direito da Pontifícia Universidade Católica do Paraná (PUC-PR). Coordenador do Programa de Mestrado em Direito e Professor da Graduação do Centro Universitário Autônomo do Brasil (UniBrasil), Paraná. Visiting Scholar na Columbia Law University, Estados Unidos.** Mestranda em Direito das Relações Sociais pelo Programa de Pós-Graduação em Direito da Universidade Federal do Paraná (UFPR). Integrante do Núcleo de Pesquisa em Direito Processual Civil Comparado da Universidade Federal do Paraná (UFPR).    

scholarly journals LEGAL FORMALISM AND LEGAL REALISM: WHAT IS THE ISSUE?

Legal Theory ◽  
2010 ◽  
Vol 16 (2) ◽  
pp. 111-133 ◽  
Author(s):  
Brian Leiter
Keyword(s):  
Decision Making ◽  
Political Philosophy ◽  
Judicial Decision ◽  
Legal Realism ◽  
Judicial Decision Making ◽  
Legal Formalism ◽  
The Law ◽  
Normative Considerations

In teaching jurisprudence, I typically distinguish between two different families of theories of adjudication—theories of how judges do or should decide cases. “Formalist” theories claim that (1) the law is “rationally” determinate, that is, the class of legitimate legal reasons available for a judge to offer in support of his or her decision justifies one and only one outcome either in all cases or in some significant and contested range of cases (e.g., cases that reach the stage of appellate review); and (2) adjudication is thus “autonomous” from other kinds of reasoning, that is, the judge can reach the required decision without recourse to nonlegal normative considerations of morality or political philosophy. I also note that “formalism” is sometimes associated with the idea that judicial decision-making involves nothing more than mechanical deduction on the model of the syllogism—Beccaria, for example, expresses such a view. I call the latter “Vulgar Formalism” to emphasize that it is not a view to which anyone today cares to subscribe.

scholarly journals Internalizing Contestation in Process-Based Judicial Review

2019 ◽  
Vol 20 (8) ◽  
pp. 1167-1181
Author(s):  
Laura M. Henderson
Keyword(s):  
Decision Making ◽  
Judicial Review ◽  
Theoretical Basis ◽  
Decision Making Process ◽  
Constitutional Theory ◽  
Judicial Decision ◽  
Constituent Power ◽  
Judicial Decision Making ◽  
European Stability Mechanism

AbstractThe cases challenging the European Stability Mechanism in Eurozone creditor states show the concern courts have with protecting and promoting democratic contestation. This Article shows how John Hart Ely’s theory of process-based review provides the theoretical basis for understanding how attention to democratic contestation contributes to the legitimacy of courts reviewing legislation against constitutional norms. By focusing on promoting democratic procedures, Ely argues that courts can avoid substantive decisions that are best left to the legislature. Yet, as my discussion of the constitutional theory of constituent and constituted powers shows, no form of constituted power can avoid some exercise of constituent power. In other words, even a process-based approach cannot avoid substantive judgments. The legitimacy of these decisions depends on the availability of avenues for contestation in the judicial decision-making process itself.

The judicial pursuit of the sexual victimization of children

2016 ◽  
Vol 23 (2) ◽  
pp. 123-144
Author(s):  
Josep M Tamarit Sumalla ◽  
Mª Jesús Guardiola Lago ◽  
Albert Padró-Solanet ◽  
Patricia Hernández-Hidalgo
Keyword(s):  
Decision Making ◽  
Criminal Justice ◽  
Justice System ◽  
Decision Making Process ◽  
Judicial Decision ◽  
Sexual Offences ◽  
Judicial Decision Making ◽  
Factors Associated ◽  
English Speaking ◽  
Low Rate

This article analyses the criminal justice system’s treatment of those sexual offences against children of which it is made aware. The findings reported in this article draw on a quantitative study based on data ( n = 97) taken from judicial files from a province of Catalonia, Spain. The study examines prosecution, trial and conviction rates, analysing the possible variables involved to provide a better understanding of the reasons behind the successful prosecution of complaints made. The study points to a low rate of prosecution, similar to other studies carried out in English-speaking countries. This leads us to conclude that differences in legal systems do not give rise to significant differences in dealing with cases. There is no evidence that a legalistic system such as that of Spain acts as a restraining element against the influence of non-legal factors in the judicial decision-making process. However, similarities with other studies are not found with regards to some factors associated with it. The findings provide no confirmation of the hypothesis that the Spanish criminal justice system is particularly reluctant to prosecute cases of intrafamilial victimization.

scholarly journals Book Review: Moseneke D All Rise: A Judicial Memoir (Pickado Africa Johannesburg 2020)

2021 ◽  
Vol 24 ◽  
pp. 1-6
Author(s):  
Hoolo 'Nyane
Keyword(s):  
Decision Making ◽  
Decision Making Process ◽  
Constitutional Court ◽  
Judicial Decision ◽  
Same Sex ◽  
Judicial Decision Making ◽  
Chief Justice

The contribution is the review published by former Deputy Chief Justice, Dikhang Moseneke, about his illustrious 15-year term in the Constitutional Court as both the judge and Deputy Chief Justice. The book uniquely provides a rare window into the dynamics of judicial decision-making at the apex court. Often, legal academics only interact with the judiciary through the judgements. Yet, Moseneke gives the reader much more to the judicial decision-making process than just the judgements. The book further traverses one of the most controversial aspects of the Constitutional Court’s jurisprudence, such as same-sex marriages, succession to chieftainship.

scholarly journals How Judges Decide

2020 ◽  
pp. 91-112
Author(s):  
Robert J Sharpe
Keyword(s):  
Decision Making ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Legal Uncertainty ◽  
The Law

This chapter considers what HLA Hart described as a choice between the two extremes of the realist ‘nightmare’ that judges never decide according to the law and the idealist ‘noble dream’ that judges always decide according to the letter of the law. The chapter explores the reasons for legal uncertainty and examines the constraints that control judicial decision-making. Law is uncertain because it is necessarily general and its application in any particular case depends upon the context. This means that judges often have a choice but that choice is constrained by several factors, especially by the obligation to provide a reasoned judgment.

scholarly journals Klasikinio požiūrio į teisėją kaip teisės aiškintoją ir taikytoją alternatyvos

Teisė ◽  
2009 ◽  
Vol 71 ◽  
pp. 147-162
Author(s):  
Rūta Kazanavičiūtė
Keyword(s):  
Decision Making ◽  
Economic Approach ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Realistic Approach ◽  
The Law

Straipsnyje aptariami realistinis ir socioekonominis požiūris į teisėjo vaidmenį santykyje su teise, žvel­giant iš teisės atradimo / kūrimo perspektyvos. Šie požiūriai dar gali būti vadinami laisvo teisėjų sprendi­mų priėmimo ir racionalaus teisėjų sprendimų priėmimo modeliais. Nagrinėjami svarbiausi šių požiūrių bruožai, paskirų teisės mokslininkų pozicijos. The article deals with two groups of possible approaches to the role of the judge in interpreting and ap­plying the law. One of the analyzed approaches is so-called the realistic approach or the model of free judicial decision-making. The second approach is the so-called socio-economic approach or the model of rational judicial decision-making. The main features, examples and problems of these approaches are discussed in this article.

The “Law” and Economics of Judicial Decision-Making

2017 ◽  
Author(s):  
Emerson H. Tiller
Keyword(s):  
Decision Making ◽  
Political Institutions ◽  
Law And Economics ◽  
Policy Outcomes ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Game Theoretic ◽  
Executive Action ◽  
The Law ◽  
Context Specific

Over the last three decades, the economics of judicial behaviour has revealed itself most prominently in the field now known as Law and Positive Political Theory (Law and PPT). Instead of the traditional focus of ‘law and economics’ on the normative efficiency of legal rules, Law and PPT identifies the role of competition among legal and political institutions for policy outcomes, with these outcomes usually taking the form of legislative enactments, executive action, judicial opinions, or administrative agency pronouncements (regulations). This article illustrates the ‘law’ features of Law and PPT, while keeping the economics of judicial decision-making — especially the efficiency-driven, game-theoretic, utility maximization features — at the forefront of the analysis. It begins by summarizing basic elements of Law and PPT as relevant to judicial decision-making. It then discusses context-specific applications of Law and PPT where the craft of law is revealed as strategy.

Taking the Judges Seriously v. Grand Theories

2021 ◽  
pp. 1-34
Author(s):  
Jane Stapleton
Keyword(s):  
Decision Making ◽  
Fundamental Principle ◽  
Clear Understanding ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Judicial Lawmaking ◽  
The Common ◽  
The Law ◽  
Key Aspects

Chapter 1 describes the approach of reflexive tort scholarship and how it depends on a clear understanding of the environment of judicial decision-making. Part of that environment is the conception that judicial ‘lawmaking’ is ‘retrospective’, by which is usually meant that it is imposed retroactively. Yet retroactivity is in sharp tension with the fundamental principle that situations should be judged according to the law as it was at that time. To resolve this tension, the text offers a conception of the common law as ‘living’, that it evolves in line with changes in society. Later, litigation invites the ultimate court to articulate this evolution and how the law stood at the time that the parties interacted. The descriptive claims of Grand Theories are contrasted with reflexive tort scholarship, which accommodates key aspects of judicial decision-making, such as the heterogeneity of judicial reasons, in ways that those descriptive claims cannot.

Avoiding Adversariness? The Effects of Gender on Litigant Decision-Making

2017 ◽  
Vol 13 (04) ◽  
pp. 656-682
Author(s):  
Claire B. Wofford
Keyword(s):  
Decision Making ◽  
Gender Effect ◽  
Judicial System ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Gender Influence ◽  
The Law

How does gender influence the American judicial system? Scholars interested in this question have focused on several areas, including the substance of the law (Bender 1993; Olsen 1995; Rifkin 1981), the presence of women on a jury (Fowler 2005; Marder 1987; Taylor-Thompson 2000), and the sex of criminal defendants (Sarnikar, Sorenson, and Oaxaca 2007; Starr 2012). Among political scientists in particular, most work has examined judicial decision-making and whether the rulings of female judges differ from those of their male counterparts. Results of these studies have been mixed: some indicate that female judges vote differently, at least in certain types of cases (Boyd, Epstein, and Martin 2010; Peresie 2005; Songer and Crews-Meyer 2000), but others have found no, or only a minimal, gender effect (Segal 2002; Songer, Davis, and Haire 1994; Walker and Barrow 1985).

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