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Judicial Decision-making Judicial Decision-making

Judicial Decision-making - PowerPoint Presentation

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Uploaded On 2018-02-13

Judicial Decision-making - PPT Presentation

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

judges model ideology assumes model judges assumes ideology judicial legal law meaning original vote role questions court decision intent

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Presentation Transcript

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 AppointmentSlide9
Slide10

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 politicsSlide18
Slide19

What Americans Want

James Gibson, 2009Slide20
Slide21

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)Slide26
Slide27

Decisions overturning Federal or State & Local Laws by IdeologySlide28