Legal Model Traditional model of applying the law to facts of case Assumes that the law is discoverable Often sufficient for most trial judges or intermediate appellate judges Does not work for hard cases ID: 630968
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Slide1
Judicial Decision-makingSlide2
Legal Model
Traditional model of applying “the law” to facts of case
Assumes that the law is discoverable
Often sufficient for most trial judges or intermediate appellate judges
Does not work for “hard cases”,
esp
at appellate levelSlide3
Legal Realism
Attack on legal model beginning in 1880s with O.W. Holmes, high point in 1930s
Demonstrated that the law did not determine outcomes in interesting cases, but only in routine ones
Unfairly attacked as amoral, rather than attempt at explanationSlide4
Legal Model
Facts
Find relevant precedents
Determine relevant similarities/
differences
Apply rule of law from earlier precedents
Decision
New Rule of LawSlide5
Political Model
Attitudes
Judicial Vote
Role Orientations
Institutional ContextSlide6
Attitudinal Model
Focuses on the question of why do judges vote the way they do
Looks for individual differences in background and ideology
Often classifies judges by membership in blocs that vote alike
Developed to analyze Supreme CourtSlide7
Attitudinal Model
Justices’ votes are a function of their policy preferences
This is self-defining, often common sense: Justice Scalia votes conservative over 70% of the time, so he’s a conservative
Justices sometimes cast votes are inconsistent with their ideologySlide8
Ideology and Partisan AppointmentSlide9Slide10
Voting Behavior of Justices, by PartySlide11
Marshall,
Pacelle
,
Ludowise
,
Court of Laws or Super Legislature?
Finds that presidential ideology is single largest measureable influence
Also strong support for legal model because of norm of precedent
Also significant finding that group dynamics (strategic model) tempers attitudinal preferencesSlide12
Role Theory
Assumes that judges consider the different roles that they may play in position
May act differently in different cases
Values come from nature of job, rather than own political preference
Examples: policy-making, problem-solving, administratorSlide13
Small Group Theory
Martinek
discusses re: Appeals Court panels of 3
Group dynamics may influence decision, not just background, but also status relative to other members
Strong group norms around consensus, dissent are also possibleSlide14
S
trategic Model
Appellate panels only
Views judges as policy makers strategizing to achieve preferred outcome
May not vote for 1
st
position when vote for 2
nd
or 3rd position leads to better outcome
Intuitive as political model, but adds complexity to explaining judicial behaviorSlide15
Jurisprudential Regimes
Current empirical approach to thinking about use of precedent
Attempts to track degree to which courts (esp. lower courts) change behavior after important decisions
Shows how precedent becomes part of legal language and culture, influencing decisionsSlide16
Problem of Judicial Activism
Idea that judges move beyond law and proper role
Assumes that law is a known thing
May be criticism of judge’s movement beyond proper role, but more commonly disagreement with resultSlide17
Sunstein
, “Judges and Democracy”
CJ Marshall in
McColloch
: “it is a
constitution
we are expounding”
Dred
Scott
– the decision that broke a nation, Lincoln’s responsePollock and
Lochner: judicial ideology overturned by politicsBrown and Reynolds:
judicial activism that enabled democratic politicsSlide18Slide19
What Americans Want
James Gibson, 2009Slide20Slide21
Major Schools of
Constitutional Interpretation
Strict Construction (
M
eese)
Original Intent/Understanding (Scalia)
Contemporary Ratification (Brennan/Marshall/Souter)
Representation Reinforcement
(John Hart Ely)Slide22
Strict Construction
Politically appealing/intellectually appalling
Assumes Constitution has literal meaning/ “Protestant” vision of interpretation
Simplistic vision of language
Great for easy questions, useless for difficult questionsSlide23
Original Intent/Understanding
Authority derives from authorship
Focuses on meaning when written (Intent) and ratified (Understanding)
Assumes ability to determine original meaning
Assumes that original meaning provides answers to current questions
Better at vetoes than positive answersSlide24
Contemporary Ratification
Judges must read texts to reflect current problems, understandings
Original Intent is hubris
Judges’ job is to decide, SC & OI don’t answer many questions
Constitution’s meaning reflects history as unfolding of principles, not frozen
Weakness:
whose contemporary values?Slide25
Activism Ranking (Rehnquist Court)Slide26Slide27
Decisions overturning Federal or State & Local Laws by IdeologySlide28