Download or read book Structures of Judicial Decision Making from Legal Formalism to Critical Theory written by Roy Lavon Brooks and published by . This book was released on 2005 with total page 396 pages. Available in PDF, EPUB and Kindle. Book excerpt: To order a paperback version of this book, please click here. This is a general book on jurisprudence designed for both the novice and more experienced student, which makes it suitable for first-year law students. It is the first book to distinguish and connect traditional theories of judicial decision-making (e.g., legal formalism, textualism, legal realism, and legal process) with "critical process" (which is critical theory transformed from a theory of legal criticism into a theory of judicial decision-making). Brooks breaks new ground on several other fronts as well -- he employs an innovative framework that divides judicial decision-making models into the "logical method" and the "policy method;" offers a more nuanced conceptualization of judicial policy-formulation in which judges are seen as not only making policy, but also (and more typically) as discovering and vindicating policy; redefines "policy-making" in a manner that is different from our traditional understanding of the term; and synthesizes critical process into three judicial models: symmetrical, asymmetrical, and hybrid. The book is written in two parts. Part 1 (Traditional Process) discusses five major traditional judicial models, each reflective of either the logical method or the policy method. Part 1 ends with a synthesis of the traditional models (dividing them into three categories), which judges who have used the book find to be most useful. Part 2 (Critical Process) begins with a discussion of critical theory's central theme and operating elements and then transforms these features into a theory of outsider-oriented judicial decision making, something judges can actually use in deciding cases. Critical theory is thus transformed into "critical process."

Download or read book Structures of Judicial Decision Making from Legal Formalism to Critical Theory Paperback written by Roy Lavon Brooks and published by . This book was released on 2005 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: This is the 2023 paperback printing of the book published in 2005. To see the hardcover version, please click here. This is a general book on jurisprudence designed for both the novice and more experienced student, which makes it suitable for first-year law students. It is the first book to distinguish and connect traditional theories of judicial decision-making (e.g., legal formalism, textualism, legal realism, and legal process) with "critical process" (which is critical theory transformed from a theory of legal criticism into a theory of judicial decision-making). Brooks breaks new ground on several other fronts as well -- he employs an innovative framework that divides judicial decision-making models into the "logical method" and the "policy method;" offers a more nuanced conceptualization of judicial policy-formulation in which judges are seen as not only making policy, but also (and more typically) as discovering and vindicating policy; redefines "policy-making" in a manner that is different from our traditional understanding of the term; and synthesizes critical process into three judicial models: symmetrical, asymmetrical, and hybrid. The book is written in two parts. Part 1 (Traditional Process) discusses five major traditional judicial models, each reflective of either the logical method or the policy method. Part 1 ends with a synthesis of the traditional models (dividing them into three categories), which judges who have used the book find to be most useful. Part 2 (Critical Process) begins with a discussion of critical theory's central theme and operating elements and then transforms these features into a theory of outsider-oriented judicial decision making, something judges can actually use in deciding cases. Critical theory is thus transformed into "critical process."

Download or read book The Theory of Judicial Decision written by Roscoe Pound and published by . This book was released on 1923 with total page 76 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Download or read book Visions of Judicial Review written by Benjamin Bricker and published by . This book was released on 2013 with total page 197 pages. Available in PDF, EPUB and Kindle. Book excerpt: What factors account for the development and use of judicial review? Under traditional separation of powers theory, courts are supposed to act as an important check on governmental excesses or abuses. Yet, there is little theoretical consensus on how courts make these critical decisions and create opinions - due in part to a lack of broadly comparative testing. My dissertation explores the factors that account for court activism and court independence, focusing on three main visions, or arguments, for judicial review. These visions of judicial review are multi-faceted, yet all in their own way seek to explain whether and how judges are able to create representative rulings that deliver in practical ways the abstract benefits of democratic rule. I then test these visions using data from several newer democracies in Eastern Europe. One vision for judicial review focuses on the ability of judges engaging in judicial review to find the 'right' answer to constitutional questions, based on legal doctrine and jurisprudential principles. This 'legalistic' view fits within a larger rule of law-based vision of democracy, in which the purpose of democratic government is to ensure fair processes and orderly social outcomes within the constraints of the law. A second vision for judicial review focuses on the role of courts as protectors of constitutional rights, particularly the rights of minority groups against majority tyranny. This idea fits within the larger liberal, rights-protecting view of modern democracy, in which the provision and protection of positive individual rights is of paramount concern. A third vision focuses on the potential for judicial review to act as a majoritarian instrument. Majoritarian judicial review may occur for several reasons. First, judges come to the bench with certain ideological beliefs. Rules in most countries place popularly elected leaders in charge of appointing judges to high courts. With these appointment rules, it is unlikely that court opinions with be far from the views of lawmaking majorities. Thus, judicial review might largely serve to legitimate policies enacted by current elected leaders (Dahl 1957), but may also be used to strike non-favored policies (Whittington 2005, 2007; Rogers 2001). Second, courts may respond directly to public opinion, limiting or altering the exercise of judicial review in response to changes in public support for the judiciary (Clark 2011). Third, judges may respond to institutional incentives, like reappointment pressures, that encourage outcomes from judicial review consistent with majority preferences. Using new data from Eastern European democracies, I investigate the implications from these visions of judicial review. In Chapter Three, I investigate several preliminary institutional factors that could influence the exercise of judicial review. Specifically, I find that judicial panels are much more likely to overturn laws when there is an ideological divergence between the court and the law under review. At the same time, the propensity of courts to overturn laws is also greater when government monitoring and oversight agencies refer laws for constitutional review. This second finding suggests a role for strategic decision-making by constitutional courts. Based on the types of cases these courts both hear and overturn, there is also some evidence in favor of a type of 'rights-protecting' judicial review. Chapter Three finds preliminary evidence suggesting the presence of a 'majoritarian' vision of judicial review, one in which judges follow the preferences of the elected leaders who appoint them. Yet, as noted above, there are several different avenues through which majoritarian review can potentially travel. In Chapter Four, I test implications from these different majoritarian visions. Specifically, I examine how macro-level concepts like parliamentary preferences, public support, governmental power, and government coalitions -- variables that fit directly within the majoritarian framework - might influence the exercise of judicial review. The majoritarian vision for judicial review anticipates ideological voting among judges on courts of constitutional review. However, other structural factors may motivate judicial decision-making, as well. Chapter Five investigates whether institutional incentives also influence the choices judges make. Moving from case outcomes to the individual decisions judges make, I examine whether reappointment concerns lead to differentiation in decision-making. I test this theory of career-oriented judging with longitudinal data from three European constitutional courts that vary in their appointment and retention processes. Ultimately, the findings of this chapter show the influence of both career concerns and ideology on judicial decision-making and outcomes. Finally, Chapter Six examines whether the legalist vision of judicial review can help to explain judicial outcomes. Within the legalist vision, judicial review is a normatively desirable rule for democracies due to the ability of judges trained in methods of legal analysis to apply neutral legal principles -- including the rules developed from past cases -- to reach the 'right' legal outcomes and thus ensure the rule of law within society. I test the legalist vision in a wholly new environment: constitutional courts in civil law systems. Using a unique dataset of citations collected from opinions of the Polish Constitutional Tribunal, I find evidence of increasingly sophisticated use of case law, as well as strategic use of precedent to shape the direction of opinions. Overall, results indicate these judges use case citations to provide both legal legitimation for their opinions and strategic advancement of their policy, with little evidence in favor of a legalist vision for judicial review. Using evidence from Eastern European democracies, I have found that several visions of 'majoritarian' judicial review can be used to explain how courts engage in judicial review. At the same time, there is limited evidence that a 'rights-protecting' vision of judicial review is realized in practice, and little evidence to confirm the existence of a pure 'legalist' vision of judicial review. Chapter 3 showed the importance of ideology to judicial decision-making across multiple countries, but also the value to courts of outside actors who can ensure compliance with judicial rulings. Chapter 4 expanded on the majoritarian vision, confirming the value of public opinion and public support to judicial outcomes but also showing that courts are more active in reviewing legislation that may be far from the majority will. Chapter 5 confirmed another aspect of the majoritarian vision - that institutional incentives can influence career-oriented judges to vote in line with the interests of reappointing agents. Finally, Chapter 6 examined the use of precedent among constitutional court judges in civil law systems. Little evidence was found to confirm a legalist vision of judicial decision-making, though there is evidence that judges in the civil law tradition, like their counterparts in the United States, use precedent to advance ideological and strategic goals. Overall, these chapters have shown the importance of ideology and strategic interactions outside of the United States. These two factors are well established among those who study the United States courts, yet relatively few studies have compared the importance of these factors to judicial decision-making across multiple countries. The cross-national perspective taken in this study does just that, and provides an important extension of past empirical work examining the judicial decision-making and the normative role of judicial review in democratic governance.

Download or read book Democracy and Distrust written by John Hart Ely and published by Harvard University Press. This book was released on 1981-08-15 with total page 281 pages. Available in PDF, EPUB and Kindle. Book excerpt: This powerfully argued appraisal of judicial review may change the face of American law. Written for layman and scholar alike, the book addresses one of the most important issues facing Americans today: within what guidelines shall the Supreme Court apply the strictures of the Constitution to the complexities of modern life? Until now legal experts have proposed two basic approaches to the Constitution. The first, “interpretivism,” maintains that we should stick as closely as possible to what is explicit in the document itself. The second, predominant in recent academic theorizing, argues that the courts should be guided by what they see as the fundamental values of American society. John Hart Ely demonstrates that both of these approaches are inherently incomplete and inadequate. Democracy and Distrust sets forth a new and persuasive basis for determining the role of the Supreme Court today. Ely’s proposal is centered on the view that the Court should devote itself to assuring majority governance while protecting minority rights. “The Constitution,” he writes, “has proceeded from the sensible assumption that an effective majority will not unreasonably threaten its own rights, and has sought to assure that such a majority not systematically treat others less well than it treats itself. It has done so by structuring decision processes at all levels in an attempt to ensure, first, that everyone’s interests will be represented when decisions are made, and second, that the application of those decisions will not be manipulated so as to reintroduce in practice the sort of discrimination that is impermissible in theory.” Thus, Ely’s emphasis is on the procedural side of due process, on the preservation of governmental structure rather than on the recognition of elusive social values. At the same time, his approach is free of interpretivism’s rigidity because it is fully responsive to the changing wishes of a popular majority. Consequently, his book will have a profound impact on legal opinion at all levels—from experts in constitutional law, to lawyers with general practices, to concerned citizens watching the bewildering changes in American law.

Download or read book Supreme Court Decision Making written by Cornell W. Clayton and published by University of Chicago Press. This book was released on 1999 with total page 368 pages. Available in PDF, EPUB and Kindle. Book excerpt: What influences decisions of the U.S. Supreme Court? For decades social scientists focused on the ideology of individual justices. Supreme Court Decision Making moves beyond this focus by exploring how justices are influenced by the distinctive features of courts as institutions and their place in the political system. Drawing on interpretive-historical institutionalism as well as rational choice theory, a group of leading scholars consider such factors as the influence of jurisprudence, the unique characteristics of supreme courts, the dynamics of coalition building, and the effects of social movements. The volume's distinguished contributors and broad range make it essential reading for those interested either in the Supreme Court or the nature of institutional politics. Original essays contributed by Lawrence Baum, Paul Brace, Elizabeth Bussiere, Cornell Clayton, Sue Davis, Charles Epp, Lee Epstein, Howard Gillman, Melinda Gann Hall, Ronald Kahn, Jack Knight, Forrest Maltzman, David O'Brien, Jeffrey Segal, Charles Sheldon, James Spriggs II, and Paul Wahlbeck.

Download or read book The Judicial Decision written by Richard A. Wasserstrom and published by . This book was released on 1961 with total page 216 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Download or read book Philosophy of Law written by Raymond Wacks and published by Oxford University Press. This book was released on 2014-02 with total page 169 pages. Available in PDF, EPUB and Kindle. Book excerpt: Raymond Wacks reveals the intriguing and challenging nature of legal philosophy, exploring the notion of law and its role in our lives. He refers to key thinkers from Aristotle to Rawls, from Bentham to Derrida and looks at the central questions behind legal theory, and law's relation to justice, morality, and democracy.

Download or read book Judicial Decision making written by Glendon A. Schubert and published by Free Press. This book was released on 1963 with total page 296 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Download or read book Judicial decision making written by Valeria Giordano and published by G Giappichelli Editore. This book was released on 2017-03-30 with total page 129 pages. Available in PDF, EPUB and Kindle. Book excerpt:

Download or read book Diversity Judgments written by Roy L. Brooks and published by Cambridge University Press. This book was released on 2022-03-17 with total page 657 pages. Available in PDF, EPUB and Kindle. Book excerpt: Shows how the Supreme Court can repair its diminished legitimacy in a society committed to diversity and inclusion.

Download or read book Losing Twice written by Emily M. Calhoun and published by Oxford University Press. This book was released on 2011-04-06 with total page 185 pages. Available in PDF, EPUB and Kindle. Book excerpt: Constitutional 'losers' represent a thorny and longstanding problem in American constitutional law. Here, Emily Calhoun draws upon conflict resolution theory, political theory, and Habermasian discourse theory to argue that in such cases, the Court must work harder to avoid inflicting unnecessary harm on Constitutional losers.

Download or read book New York Times Co v Sullivan Forty Years Later written by W. Wat Hopkins and published by Routledge. This book was released on 2017-10-03 with total page 297 pages. Available in PDF, EPUB and Kindle. Book excerpt: The need to protect free speech on matters of governing importance--more than any other element of government--is the defining factor of a free society. Nowhere in the law is that prospect more clearly explained than in the opinion in Times v. Sullivan. This special issue provides an example of the breadth and scope of Times v. Sullivan and the ways in which the case continues to impact the jurisprudence of free expression. It is introduced by two essays designed to provide an overview of the case, providing insights into the origins of the dispute the Court was called upon to settle. The next four articles are testimony to breadth the opinion in this case, particularly dealing with aspects not often considered. Combined, they all demonstrate the lasting significance of what may be the most important free expression case the Court has delivered.

Download or read book Law and Self Knowledge in the Talmud written by Ayelet Hoffmann Libson and published by Cambridge University Press. This book was released on 2018-05-17 with total page 230 pages. Available in PDF, EPUB and Kindle. Book excerpt: This book examines the emergence of self-knowledge as a determining legal consideration among the rabbis of Late Antiquity, from the third to the seventh centuries CE. Based on close readings of rabbinic texts from Palestine and Babylonia, Ayelet Hoffmann Libson highlights a unique and surprising development in Talmudic jurisprudence, whereby legal decision-making incorporated personal and subjective information. She examines the central legal role accorded to individuals' knowledge of their bodies and mental states in areas of law as diverse as purity laws, family law and the laws of Sabbath. By focusing on subjectivity and self-reflection, the Babylonian rabbis transformed earlier legal practices in a way that cohered with the cultural concerns of other religious groups in Late Antiquity. They developed sophisticated ideas about the inner self and incorporated these notions into their distinctive discourse of law.

Download or read book Taking Wrongs Seriously written by Elazar Barkan and published by Stanford University Press. This book was released on 2006 with total page 354 pages. Available in PDF, EPUB and Kindle. Book excerpt: This multi-disciplinary collection examines the recent wave of political apologies for acts of past injustice.

Download or read book A Guide to Civil Procedure written by Brooke Coleman and published by NYU Press. This book was released on 2022-07-12 with total page 280 pages. Available in PDF, EPUB and Kindle. Book excerpt: Shines a light on the ways in which civil procedure may privilege—or silence—voices in our justice system In today’s increasingly hostile political and cultural climate, law schools throughout the country are urgently seeking effective tools to address embedded inequality in the United States legal system. A Guide to Civil Procedure aims to serve as one such tool by centering questions of systemic injustice in the teaching, learning, and practice of civil procedure. Featuring an outstanding group of diverse scholars, the contributors illustrate how law school curriculums often ignore issues such as race, gender, disability, class, immigration status, and sexual orientation. Too often, students view the #MeToo movement, Black Lives Matter, immigration/citizenship controversy, or LGBTQ+ issues as mere footnotes to their legal education, often leading to the marginalization of many students and the production of graduates that do not view issues of systemic injustice as central to their profession. A Guide to Civil Procedure reveals how procedure is, and always has been, a central pressure point in the struggle to eradicate structural inequality and oppression through the courts. This book will give students and scholars alike a more complex view of their roles as attorneys, sharpen their litigation skills, and provide a stronger sense of community and purpose in the law school classroom.

Download or read book Beyond the Formalist Realist Divide written by Brian Z. Tamanaha and published by Princeton University Press. This book was released on 2009-10-26 with total page 265 pages. Available in PDF, EPUB and Kindle. Book excerpt: According to conventional wisdom in American legal culture, the 1870s to 1920s was the age of legal formalism, when judges believed that the law was autonomous and logically ordered, and that they mechanically deduced right answers in cases. In the 1920s and 1930s, the story continues, the legal realists discredited this view by demonstrating that the law is marked by gaps and contradictions, arguing that judges construct legal justifications to support desired outcomes. This often-repeated historical account is virtually taken for granted today, and continues to shape understandings about judging. In this groundbreaking book, esteemed legal theorist Brian Tamanaha thoroughly debunks the formalist-realist divide. Drawing from extensive research into the writings of judges and scholars, Tamanaha shows how, over the past century and a half, jurists have regularly expressed a balanced view of judging that acknowledges the limitations of law and of judges, yet recognizes that judges can and do render rule-bound decisions. He reveals how the story about the formalist age was an invention of politically motivated critics of the courts, and how it has led to significant misunderstandings about legal realism. Beyond the Formalist-Realist Divide traces how this false tale has distorted studies of judging by political scientists and debates among legal theorists. Recovering a balanced realism about judging, this book fundamentally rewrites legal history and offers a fresh perspective for theorists, judges, and practitioners of law.