scholarly journals POLICE, PROSECUTION, COURTS AND WARTIME DEMONSTRATIONS: ADELA PANKHURST IN THE AUSTRALIAN HIGH COURT

2012 ◽  
Vol 23 (1) ◽  
pp. 65-91 ◽  
Author(s):  
Jocelynne Scutt
Keyword(s):  
Decision Making ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
High Court ◽  
Majority Opinion ◽  
Police Powers ◽  
Court Of Justice ◽  
European Court ◽  
Disorderly Conduct ◽  
The Law

Rights of assembly and freedom of speech are a rich ground for decision-making by police, prosecutors and courts in determining a balance with obligations of authorities to keep the peace and prevail against disorderly conduct or riot. Recent claims of abuse of police powers through “kettling” have reached the European Court of Justice. These cases directly address the scope and exercise of police authority in maintaining order during demonstrations. Yet not only police powers are in issue at times of political disputation. Two cases heard early last century by the Australian High Court illustrate the way in which both the decision to prosecute and judicial decision-making may be influenced by socio-political considerations, particularly in time of war. Pankhurst v Porter and Pankhurst v Kiernan saw Adela Pankhurst, youngest daughter in the redoubtable Pankhurst family of Suffragette fame, testing the limits of the law during the struggles to ensure that sending wheat abroad to feed the troops would not justify pricing bread out of the reach of ordinary, working-class households. The success of the appeal in Pankhurst v Porter exposed error in the prosecutorial process. The failure of the appeal in Pankhurst v Kiernan exposed flawed reasoning in the majority opinion and the strength of the dissenting judgment in it’s application of the law to the facts and the need to maintain objectivity or at least neutrality as to the particular appellant.

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.

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).

Historical Institutionalism and Judicial Decision-Making

2017 ◽  
Vol 70 (1) ◽  
pp. 53-85 ◽  
Author(s):  
Erik Bleich
Keyword(s):  
Decision Making ◽  
Hate Speech ◽  
Analytical Framework ◽  
Historical Institutionalism ◽  
Judicial Decision ◽  
Change Over Time ◽  
Judicial Decision Making ◽  
High Court ◽  
Original Dataset ◽  
Over Time

This article integrates insights from different veins of historical institutionalism to offer an analytical framework that specifies how ideas, institutions, and actors account for key aspects of judicial decision-making, including change over time. To the extent that ideas are widely distributed, highly salient, and stable among actors in the judicial field, they can affect patterns of rulings in a particular issue area. The distribution, salience, and stability of norms, however, may change over time for reasons embedded in the institutional structures themselves. Existing policies, laws, or treaties create the potential for new actors to enter the judicial field through processes that theorists of institutional change have identified as intercurrence, displacement, conversion, layering, and drift. New actors can shift the relative salience of ideas already rooted in the judicial field. This ideational salience amplification can alter patterns of judicial decision-making without the fundamental and often costly battles involved in wholesale paradigm change. French high court hate speech decisions provide the context for the development of this framework and serve to illustrate the dynamic. The author uses evidence from an original dataset of every ruling by the French Court of Cassation regarding racist hate speech from 1972 through 2012 to explain the varying propensity of the high court to restrict speech that targets majorities compared to minorities.

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).

Affirmative Action in the Law of Tort: The Case of the Duty to Warn

1989 ◽  
Vol 48 (1) ◽  
pp. 115-134 ◽  
Author(s):  
James G. Logie
Keyword(s):  
Decision Making ◽  
Affirmative Action ◽  
Common Law ◽  
Economic Loss ◽  
Duty Of Care ◽  
Judicial Decision ◽  
Judicial Decision Making ◽  
Duty To Warn ◽  
Nervous Shock ◽  
The Law

One of the principal features in the development of private law in recent years has been the dramatic increase in the variety of circumstances in which courts are willing to hold that one party owes a duty of care in tort to another. The view that the categories of relationship which attract a duty of care at common law are immutably fixed by precedent and that any decision to extend them must be left to the legislature, expressed by one Law Lord as recently as 1970, now seems somewhat quaint and it is generally accepted that courts can, in appropriate cases, extend the scope of liability for negligence to embrace new types of relationships, conduct and harm. As the boundaries of liability have been rolled back, old immunities have been removed and duties of care (albeit sometimes restricted) have been established in areas previously considered to be beyond the scope of the law of tort. But there are still areas of confusion and difficulty, perhaps the most prominent of which in recent years have been the extent of liability for economic loss and for nervous shock. Another area of doubt, however, is the extent of liability for omissions. While it has not attracted as much attention as economic loss or nervous shock, the distinction between acts and omissions still exercises a powerful influence on judicial decision making on the question of tortious liability. This article considers the question of liability for one such omission, namely liability for a failure to warn someone of imminent danger. Before doing so, however, it is necessary to clarify exactly what is meant by an “omission.”

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