Judicial Decision-making. Legal Model Traditional model of applying “the law” to facts of case...
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Transcript of Judicial Decision-making. Legal Model Traditional model of applying “the law” to facts of case...
Legal ModelTraditional 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 level
Legal RealismAttack 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 explanation
Legal Model
FactsFind
relevant precedents
Determine relevant
similarities/differences
Apply rule of law from
earlier precedents
DecisionNew Rule of Law
Attitudinal ModelFocuses 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 Court
Attitudinal ModelJustices’ 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 ideology
Voting Behavior of Justices, by Party
BrennanW
hite
Mars
hall
Blackm
un
Rehnquist
Steve
ns
O'ConnorSc
alia
Souter
Thomas
Breyer
Ginsburg
0
10
20
30
40
50
60
70
80
90
Liberal Votes
Liberal Votes
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 preferences
Role TheoryAssumes that judges consider the
different roles that they may play in position
May act differently in different casesValues come from nature of job,
rather than own political preferenceExamples: policy-making, problem-
solving, administrator
Small Group TheoryMartinek discusses re: Appeals Court
panels of 3Group dynamics may influence decision,
not just background, but also status relative to other members
Strong group norms around consensus, dissent are also possible
Strategic ModelAppellate panels only
Views judges as policy makers strategizing to achieve preferred outcome
May not vote for 1st position when vote for 2nd or 3rd position leads to better outcome
Intuitive as political model, but adds complexity to explaining judicial behavior
Jurisprudential RegimesCurrent 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 decisions
Problem of Judicial ActivismIdea that judges move beyond law
and proper roleAssumes that law is a known thingMay be criticism of judge’s
movement beyond proper role, but more commonly disagreement with result
Major Schools of Constitutional Interpretation
Strict Construction (Meese)Original Intent/Understanding (Scalia)Contemporary Ratification
(Brennan/Marshall/Souter)Representation Reinforcement
(John Hart Ely)
Strict Construction Politically appealing/intellectually
appallingAssumes Constitution has literal
meaning/ “Protestant” vision of interpretation
Simplistic vision of languageGreat for easy questions, useless for
difficult questions
Original Intent/UnderstandingAuthority derives from authorshipFocuses on meaning when written (Intent)
and ratified (Understanding)Assumes ability to determine original
meaningAssumes that original meaning provides
answers to current questionsBetter at vetoes than positive answers
Contemporary RatificationJudges must read texts to reflect current
problems, understandingsOriginal Intent is hubrisJudges’ job is to decide, SC & OI don’t
answer many questionsConstitution’s meaning reflects history as
unfolding of principles, not frozenWeakness: whose contemporary values?
Decisions overturning Federal or State & Local Laws by Ideology
ThomasSc
alia
Rehnquist
Kennedy
O'Connor
Souter
Breyer
Ginsberg
Steve
ns0
5
10
15
20
25
30
35
FederalState/Local