When Do Courts Constrain the Authoritarian State? Judicial Decision-Making in Jordan and Palestine

2021 ◽  
Author(s):  
Steven D. Schaaf
Keyword(s):  
Decision Making ◽  
Original Data ◽  
Judicial Decision ◽  
Appellate Courts ◽  
Judicial Decision Making ◽  
Legal Norms ◽  
Authoritarian State ◽  
Judicial Decisions ◽  
State Activity ◽  
State Actors

Under what conditions will authoritarian courts issue decisions that constrain state actors? This study breaks new ground in authoritarianism research by explaining when authoritarian states are—and are not—held accountable to legal norms. I leverage evidence from interviews with Jordanian and Palestinian legal actors, original data on judicial decisions, and two years of fieldwork shadowing judges as they conducted business in the courthouse. I find that courts in Jordan and Palestine are hardly regime pawns, as judges routinely prioritize their own interests above those of regime elites. My results also demonstrate that lawsuits revealing instances of intra-state disunity are particularly good vehicles for expanding judicial authority over state activity and, further, that appellate courts are uniquely less capable of constraining state actors.

Law Matters

2011 ◽  
Author(s):  
Michael A. Bailey ◽  
Forrest Maltzman
Keyword(s):  
Decision Making ◽  
Theoretical Model ◽  
Democratic Participation ◽  
Bill Of Rights ◽  
Judicial Decision ◽  
Stare Decisis ◽  
Judicial Decision Making ◽  
Judicial Decisions ◽  
Strict Interpretation ◽  
Commerce Clause

Building on the theoretical model of Chapter 3, this chapter seeks to assess whether “law” affects judicial decisions independently of policy preferences. Numerous legal doctrines may shape judicial decision-making, including stare decisis, originalism, plain meaning, the promotion of democratic participation, and doctrines with regard to specific elements of the Constitution such as the Bill of Rights or the commerce clause. The chapter concentrates on three legal doctrines (stare decisis, strict interpretation of the Constitution, and judicial restraint) that are both prominent and clearly more likely to play a role in structuring decision-making on some cases than on others. These doctrines are not necessarily canons of jurisprudence that are universally shared; they are principles that are widely acknowledged in the legal world as appropriately influencing constitutional interpretation.

scholarly journals Analyzing the Link between Dollars and Decisions: A Multi-State Study of Campaign Contributions and Judicial Decision Making

2016 ◽  
Vol 35 (1) ◽  
pp. 65
Author(s):  
Ryan J. Rebe
Keyword(s):  
Decision Making ◽  
Campaign Contributions ◽  
Causal Connection ◽  
State Supreme Courts ◽  
Judicial Decision ◽  
Supreme Courts ◽  
Judicial Decision Making ◽  
Judicial Decisions ◽  
State Study ◽  
Previous Election

<p>This article examines the causal connection between attorney contributions and judicial decisions in elective states.  The results show that contributions are a significant predictor of appellant success in state supreme courts when judges receive contributions from the attorneys for the appellant.  However, this relationship is contingent on the competitiveness of the judicial seat.  The analysis shows that judges who received a low percentage of the vote in the previous election are more likely to vote with contributors than judges who received a high percentage.  This evidence bolsters the argument that contributions directly affect decision making when judges feel electoral pressure.  The results also support the proposition that elected judges are more likely to vote with donors in states with nonpartisan ballots.  While the contribution amounts are higher in partisan states, the judges in the nonpartisan sample are more closely aligned with their contributors when it comes to decision making. </p>

scholarly journals Judicial Decision-Making, Ideology and the Political: Towards an Agonistic Theory of Adjudication

2021 ◽  
Author(s):  
Rafał Mańko
Keyword(s):  
Decision Making ◽  
Methodological Approach ◽  
Prima Facie ◽  
The Political ◽  
Judicial Decision ◽  
Legal Form ◽  
Judicial Decision Making ◽  
Legal Decisions ◽  
Judicial Decisions ◽  
Double Nature

AbstractThe present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe’s agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decision-making. Mouffe’s concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial decisions as having a double nature—juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of on-going collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a ‘relative sovereignty’, being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not ‘apply itself’ on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from the prima facie interpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe’s theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies.

scholarly journals Legal Theories and Judicial Decision-Making: An Ontological Analysis

2020 ◽  
Author(s):  
Cristine Griffo ◽  
João Paulo A. Almeida ◽  
Giancarlo Guizzardi
Keyword(s):  
Decision Making ◽  
Explanatory Power ◽  
Constitutional Rights ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Pure Theory ◽  
Judicial Decisions ◽  
Ontological Analysis ◽  
Core Ontologies

In this paper, we expose the legal theories underlying two important classes of Legal Core Ontologies and show how these ontologies inherit both limitations and benefits (such as explanatory power) of their underlying theories. We do that with the help of a real case study in which we have normative omission and collision of principles. We use this case study to conduct an ontological analysis of the support for judicial decision-making in LKIF-Core (representing Kelsen’s Pure Theory of the Law) and UFO-L (representing Robert Alexy’s Theory of Constitutional Rights). We show that UFO-L is able to articulate the semantics of the content of judicial decisions by making explicit the individual’s legal positions that are raised in argumentation along a legal process. The same cannot be said of LKIF-Core that is based on the Kelsenian stance and focuses on the representation of general norms (norm types) and subsumption of facts to these norms.

scholarly journals WHY MUST I CRY? JUSTIFICATION, SACRIFICE, LONELINESS, MADNESS AND LAUGHTER IN POSTAPARTHEID JUDICIAL DECISION-MAKING

2007 ◽  
Author(s):  
Michael Bishop
Keyword(s):  
South Africa ◽  
Decision Making ◽  
South African ◽  
Social Economic ◽  
The Other ◽  
Judicial Decision ◽  
Heavy Load ◽  
Judicial Decision Making ◽  
Judicial Decisions ◽  
Critical Theories

Peter Tosh’s plaintive – ‘Why must I cry?’ – is normally interpreted to be about a lost lover. It probably is. But I am going to propose a different reading. I am going to pretend that Peter Tosh is a conscientious South African judge with postmodernist and critical legal tendencies. This judge is concerned with the massive responsibility she feels as a judge in post-apartheid South Africa. Not only must she walk the lonely, lonely, lonely road of ordinary judicial office, she must bear the big heavy load of the specific social, economic and political circumstances that place added pressure on her to transform, both society and herself. At the same time, she is confronted with critical theories that seek to impose an even greater burden on her in the form of unanswerable calls to justice and unfulfillable duties to the other. These theories are, on the whole, framed in a way that is both critical of judges and largely pessimistic about the possibility of success. Many of the theories specifically require the judge to mourn her inability to do the impossible. For many reasons then, our hypothetical judge asks: ‘Why must I cry?’ My answer in brief is: She need not cry. She must not cry. I will argue that the best means to address the various responsibilities imposed on judicial officers is through laughter, not tears. I begin by detailing the ‘culture of justification’ that dominates both judicial and academic thinking (I will look specifically at Mureinik, Klare and Botha) and examine exactly what burdens this philosophy imposes on judges. Next I acknowledge that the burdens of justification, onerous as they may be, are not enough. I adopt Van der Walt’s ideal of ‘law as sacrifice’ to argue that all judges have the additional duty to acknowledge the sacrifices that are an inescapable part their profession. I conclude by looking at humour and the law. Humour in judicial decisions has played an often unnoticed role (more in America than South Africa!).

The Influence of Type of Defense Counsel on Prosecutorial and Judicial Decision Making in Domestic Violence Cases

2018 ◽  
Vol 65 (12) ◽  
pp. 1623-1647 ◽  
Author(s):  
Besiki Luka Kutateladze ◽  
Anna Leimberg
Keyword(s):  
Decision Making ◽  
Domestic Violence ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Defense Counsel ◽  
Judicial Decisions ◽  
Decision Points

This study examines the influence of the type of defense counsel on prosecutorial and judicial decisions in domestic violence cases. We found that the type of defense counsel mattered more in sentencing compared with previous decision points. Cases handled by private attorneys were less likely to experience charge reductions at screening and be dismissed. However, decision patterns are reversed postarraignment, where charges start to decrease at a higher rate for cases represented by private counsel. Defendants represented by private lawyers were less likely to plead guilty, but they were also markedly less likely to face incarceration.

scholarly journals Analyzing the Link between Dollars and Decisions: A Multi-State Study of Campaign Contributions and Judicial Decision Making

2016 ◽  
Vol 35 (1) ◽  
pp. 65-91
Author(s):  
Ryan J. Rebe
Keyword(s):  
Decision Making ◽  
Campaign Contributions ◽  
Causal Connection ◽  
State Supreme Courts ◽  
Judicial Decision ◽  
Supreme Courts ◽  
Judicial Decision Making ◽  
Judicial Decisions ◽  
State Study ◽  
Previous Election

This article examines the causal connection between attorney contributions and judicial decisions in elective states.  The results show that contributions are a significant predictor of appellant success in state supreme courts when judges receive contributions from the attorneys for the appellant.  However, this relationship is contingent on the competitiveness of the judicial seat.  The analysis shows that judges who received a low percentage of the vote in the previous election are more likely to vote with contributors than judges who received a high percentage.  This evidence bolsters the argument that contributions directly affect decision making when judges feel electoral pressure.  The results also support the proposition that elected judges are more likely to vote with donors in states with nonpartisan ballots.  While the contribution amounts are higher in partisan states, the judges in the nonpartisan sample are more closely aligned with their contributors when it comes to decision making. 

Judicial Decision-Making

2014 ◽  
pp. 663-702 ◽  
Author(s):  
Doron Teichman ◽  
Eyal Zamir
Keyword(s):  
Decision Making ◽  
Hindsight Bias ◽  
Contrast Effects ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Legal Norms ◽  
Story Model ◽  
Behavioral Studies ◽  
Omission Bias

This chapter critically reviews the behavioral literature on judicial decision-making. Among other things, it presents general theories of judicial decision-making, such as the story model and coherence-based reasoning. It also describes the reflection of a series of well-known cognitive phenomena in judicial decision-making, including the compromise and contrast effects, the effect of legally irrelevant information, the hindsight bias, the omission bias, and the role of anchoring in converting qualitative into quantitative judgments. The chapter examines fact-finders’ reluctance to impose liability based on certain types of evidence. It further reviews the contribution of behavioral studies to better understanding judicial prejudice. Special attention is given to judicial application of legal norms to facts and the effect of the choice between rules and standards on the predictability of judgments. Finally, the chapter provides an overview of two fundamental questions in the behavioral analysis of judicial decision-making: group decision-making and judges’ versus laypersons’ decision-making.

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