scholarly journals Legal authority and savagery in judicial rhetoric: sexual violence and the criminal courts

2011 ◽  
Vol 7 (2) ◽  
pp. 117-137 ◽  
Author(s):  
David Gurnham
Keyword(s):  
Decision Making ◽  
Case Law ◽  
Legal Authority ◽  
Rhetorical Strategies ◽  
Bodily Harm ◽  
Judicial Decision ◽  
Criminal Courts ◽  
Legal Rhetoric ◽  
Legal Cases ◽  
Judicial Decision Making

AbstractThis article explores narrative devices in legal rhetoric, and the use of these devices for asserting the authority to distinguish lawful from unlawful inflictions of bodily harm. The argument made here is that the moral language adopted by judges in criminal appeal judgments on risky sexual and/or violent consensual acts embraces a set of interconnecting narratives otherwise observed in literature, and relating to gender, sexuality and race. I try to show how the reading of these legal cases is enriched by identifying these narratives, locating them as rhetorical strategies and reflecting on their uses in judicial decision-making. In particular, I argue that in the case-law explored here, these interconnected narratives are deployed in order to assert law's dominance over an imagined ‘savage’ other. Through this ongoing repudiation of savagery the distinctions between normative and non-normative, violent and non-violent, lawful and unlawful are constructed.

How Judges Use Weapons of Influence: The Social Psychology of Courts

2013 ◽  
Vol 46 (1) ◽  
pp. 7-24
Author(s):  
Guy Davidov ◽  
Maayan Davidov
Keyword(s):  
Social Psychology ◽  
Decision Making ◽  
Case Law ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
The Public ◽  
The Social ◽  
The Face ◽  
Decision Making Processes ◽  
The Government

Research on compliance has shown that people can be induced to comply with various requests by using techniques that capitalise on the human tendencies to act consistently and to reciprocate. Thus far this line of research has been applied to interactions between individuals, not to relations between institutions. We argue, however, that similar techniques are applied by courts vis-à-vis the government, the legislature and the public at large, when courts try to secure legitimacy and acceptance of their decisions. We discuss a number of known influence techniques – including ‘foot in the door’, ‘low-balling’, ‘giving a reputation to uphold’ and ‘door in the face’ – and provide examples from Israeli case law of the use of such techniques by courts. This analysis offers new insights that can further the understanding of judicial decision-making processes.

The European Court of Human Rights and Transnational Judicial Dialogue

ICL Journal ◽  
2015 ◽  
Vol 9 (3) ◽  
Author(s):  
Carla M Zoethout
Keyword(s):  
Decision Making ◽  
Human Rights ◽  
Case Law ◽  
Judicial Decision ◽  
Council Of Europe ◽  
Judicial Decision Making ◽  
The Past ◽  
European Court ◽  
Foreign Law ◽  
The Us

AbstractOver the past decade, the European Court of Human Rights (ECtHR) seems more and more inclined to use foreign sources of law, that is to say, law that does not originate in the Convention itself or in one of the Member States of the Council of Europe. Unlike in the US, there is little discussion in Europe about this form of judicial dialogue in the case-law of the ECtHR. This paper seeks both to clarify transnational dialogue by the ECtHR and find ways to justify this practice, against the backdrop of the American debate on this topic. First, the concept of transnational judicial dialogue is analysed (Part II). Then judicial dialogue as it presents itself in the judgments of the ECtHR is assessed, especially when non-Convention or foreign law is being used in a substantive way (Part III). Subsequently, an attempt is made to define when and why the use of foreign law by the ECtHR can be considered a justifiable approach in judicial decision-making (Part IV). The paper rounds off with some concluding remarks (Part V).

New Measurement Technologies

2017 ◽  
Author(s):  
Daniel E. Ho ◽  
Michael Morse
Keyword(s):  
Decision Making ◽  
Data Collection ◽  
Case Law ◽  
Judicial Behavior ◽  
Standard Approach ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Ideal Points ◽  
Meaningful Data ◽  
The Way

This chapter reviews measurement technologies that have rapidly invigorated the study of judicial behavior, examining the standard approach to measuring judicial “ideal points” and discussing how such measures have facilitated broad new lines of inquiry in understanding judicial decision-making. But the measures, as this chapter explains, are no panacea. Proper use and interpretation depend critically on qualitative assumptions and understanding of underlying case law. This chapter argues that the way forward combines jurisprudentially meaningful data collection with advances in measurement technologies. These concepts are illustrated by empirically informing a long-standing debate about the effect of the Nuremberg trial on Justice Jackson’s jurisprudence.

scholarly journals The role of case law in judicial decision-making: A sociological perspective

Sociologija ◽  
2015 ◽  
Vol 57 (4) ◽  
pp. 593-619
Author(s):  
Tilen Stajnpihler
Keyword(s):  
Decision Making ◽  
Legal Status ◽  
Case Law ◽  
The Body ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
The Supreme Court ◽  
Citation Practices ◽  
The Republic

The article attempts to verify a common conception that has by now become an integral part of legal culture in civil law jurisdictions, namely, the conception that despite its unresolved legal status, case law (i.e. the body of past judicial decisions) is widely used by the courts when they are justifying their interpretative choices. For this purpose, an exploratory empirical study of court citation practices was conducted. The study focused on a sample of the officially reported decisions of the Supreme Court of the Republic of Slovenia and the appellate (Higher) courts on civil matters in 2011 that were publicly accessible on the official internet database of the Slovene courts. The aim of the study, which provides the first systematic outline of the use of case law in the judicial decision making process within the Slovene legal system, was to verify whether case law in fact constitutes an important factor in judicial decision-making. It did so by focusing on the extent and the manner in which Slovene courts refer to case law, as these may be inferred from the reasoning of their decisions.

scholarly journals FEMINIST PERSPECTIVES ON TORT LAW

2013 ◽  
Vol 25 (1) ◽  
pp. 265-272
Author(s):  
Carol Brennan
Keyword(s):  
Decision Making ◽  
Civil Law ◽  
Tort Law ◽  
Case Law ◽  
Human Face ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Tort System ◽  
Feminist Perspectives ◽  
The Way

Janice Richardson and Erika Rackley (eds), Routledge 2012, ISBN 978-0415619202 Price £80.00 hbBecause it is the area of civil law with a distinctly human face, students often initially find tort law accessible; sometimes deceptively so. Early on, they are introduced to the importance of policy in the development of case law. Often this policy is not articulated, so a skill must be developed of reading between the lines, in order to discern the influence upon judicial decision-making of concerns such as those about the ‘floodgates’, or perhaps defensive practice. But additionally, both students, their teachers and users of the tort system, must be appraised that explicit assertions about ‘policy’ are premised upon much more fundamental and elusive assumptions about the way society does or should operate.

scholarly journals Judicial Responses to Violations of the Emotional, Physical, Psychological and Sexual Integrity of the Child

2019 ◽  
Vol 27 (2) ◽  
pp. 373-409
Author(s):  
Hamish Ross
Keyword(s):  
Decision Making ◽  
Civil Law ◽  
Case Law ◽  
Child Victims ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Relevant Case ◽  
English Law ◽  
Judicial Attitudes ◽  
Key Aspects

This article examines the use of limitation laws in the context of civil law claims under English law and Scots law brought by adult claimants in relation to allegations of historical abuse in childhood. Using case law as a barometer of judicial attitudes towards such claimants and, by extension, towards the child victims of abuse themselves, differences in judicial approach between the two jurisdictions are critically assessed, entailing some weighing and evaluation of the argumentative coherence and persuasive force of the judicial decision-making in question. Key aspects of the discussion are framed in terms of recurrent issues that have arisen in relevant case law. The overall aim is to inform a wider debate about the success or failure of civil law mechanisms of redress in rendering justice to those whose right to emotional, physical, psychological or sexual integrity has been violated in childhood.

Reporting case law: unreported cases, the definition of a ratio and the criteria for reporting decisions

Legal Studies ◽  
1985 ◽  
Vol 5 (2) ◽  
pp. 205-232 ◽  
Author(s):  
N. H. Andrews
Keyword(s):  
Decision Making ◽  
Case Law ◽  
Judicial Decision ◽  
Efficient System ◽  
Judicial Decision Making ◽  
The Public ◽  
Reporting Decisions ◽  
Definition Of ◽  
Practical Arguments

An efficient system of law reporting is beneficial in a number of ways. First, accurate reports are necessary if the principle that like cases should be decided alike is to be achieved. Secondly and relatedly, a strict system of precedent, which renders most decisions binding on courts, requires all decisions which have precedential value to be recorded. Thirdly, full reports of what judges say, including dissents, enable subsequent courts to consider the complex of normative and practical arguments which has been articulated in previous decisions. This both adds to the richness of material guiding lawyers and citizens at large and improves the quality of judicial decision-making. Fourthly, reporting courts’ reasons for reaching a decision is important since it exposes judges to scrutiny by fellow judges, practitioners, academics and the public at large. Reporting therefore serves the principle of accountability.

scholarly journals Can Predictive Justice Improve the Predictability and Consistency of Judicial Decision-Making?

2021 ◽  
Author(s):  
Floris Bex ◽  
Henry Prakken
Keyword(s):  
Decision Making ◽  
Error Rate ◽  
Judicial Decision ◽  
Legal Cases ◽  
Judicial Decision Making ◽  
Long Run ◽  
Technical Advances ◽  
Legal Thinking ◽  
Individual Justice ◽  
Important Objective

There has recently been talk of algorithms that predict decisions in legal cases being used by the judiciary to improve the predictability and consistency of judicial decision making. We argue that their use may minimise the error rate of decisions in the long run, but that this would require not only major technical advances but also major changes in legal thinking about what is the most important objective of judicial decision-making: optimising individual justice in a particular case or reducing errors in the long run. We further argue that if algorithmic decision predictors give any useful information in individual cases to judges at all, this is not in its predictions but in its explanations.

Judicial Decision-Making and Deliberations

2021 ◽  
pp. 143-163
Author(s):  
Theodor Meron
Keyword(s):  
Decision Making ◽  
Decision Makers ◽  
Public Confidence ◽  
Judicial Decision ◽  
Criminal Courts ◽  
Judicial Decision Making ◽  
Administration Of Justice ◽  
Diverse Backgrounds ◽  
Court Proceedings ◽  
The Impact

This chapter assesses judicial decision-making and deliberations. The success of international criminal courts depends in no small part on the transparency of proceedings and reasoning of the judgements. Transparency is essential to building public confidence in the fair administration of justice. It also serves as an important safeguard against judicial arbitrariness and helps to ensure not only the fairness of the proceedings but the independence and impartiality of the Bench. This commitment to transparency in court proceedings is not absolute, however. It is limited by other factors, such as the importance of protecting witnesses and victims and the requirement that certain information be kept confidential. The chapter looks at the process of decision-making in the ICTY, ICTR, and the Mechanism. It draws attention to four specific issues: the uniqueness of the tribunals and the impact of their special status on decision-making; the diversity of decision-makers at the tribunals; the diverse backgrounds of the tribunals’ Judges and staff; and the process of decision-making.

Explaining Child Custody Determinations in Canada

1998 ◽  
Vol 13 (2) ◽  
pp. 209-225 ◽  
Author(s):  
Paul Millar ◽  
Sheldon Goldenberg
Keyword(s):  
Decision Making ◽  
Child Custody ◽  
Historical Context ◽  
Case Law ◽  
Central Issue ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Canadian Child ◽  
Shed Light

AbstractMany earlier studies of Canadian child custody determinations have been written from ideological and feminist viewpoints. This study attempts to look at this subject from an empirical and sociological stance, within its historical context. Several related issues are considered, including the central issue of sexism, and the effects of legislation and case law on these determinations. Models of how custody cases settled by trial affect those negotiated outside the courtroom are explored. This study analyzes decades of Canadian child custody orders and other evidence to shed light on trends in judicial decision making and their causes.

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