Judicial Decision-making. Legal Model Traditional model of applying “the law” to facts of case Assumes that the law is discoverable Often sufficient for.

Slides:



Advertisements
Similar presentations
EOC Judicial – Systems / Structures
Advertisements

The Federal Courts Chapter 16.
The Federal Courts Chapter 16.
The Federal Courts Chapter 16.
The Federal Courts Chapter 16.
The Federal Courts Chapter 16. The Nature of the Judicial System Introduction: – Two types of cases: Criminal Law: The government charges and individual.
The Federal Courts.
The Federal Courts. The Nature of the Judicial System Introduction: – Two types of cases: Criminal Law: The government charges and individual with violating.
American government Unit 4.
Judicial Decision Making Artemus Ward Department of Political Science Northern Illinois University.
AMERICAN GOVERNMENT, 10th edition by Theodore J. Lowi, Benjamin Ginsberg, and Kenneth A. Shepsle Chapter 8: The Federal Courts: Structure and Strategies.
Aim: What ideologies do federal judges hold?. Party background has some influence - Democratic judges - more liberal than Republican ones But ideology.
THE JUDICIARY.
The Federal Judicial System: Applying the Law
Chapter 15 The Courts Part II
CH 10: The American Legal System and the Courts
Chapter 12 THE FEDERAL COURTS: Activism versus Restraint Behavioral Focus: Approaches to Studying Judicial Behavior © 2011 Taylor & Francis.
Unit 3 Supreme Court Judiciary – The cornerstone of our democracy American Government.
Describe how the Supreme Court has power over the other branches of government through the process of checks and balances. Warm-Up.
Chapter 1 – Business and Personal Law. Judicial Decisions In the American legal system, judicial (court) decisions are primary sources of law, in addition.
The Federal Courts Agenda Quiz Overview of the Judicial Court System
The Nature of Law Is it natural or divinely given -- or is it human? If human, is it statutory (stated by legislative authority) or is it based in custom.
Judicial Branch Test Review. Supreme Court What is the highest court in the Country?
Questions What are three types of jurisdiction? What are two types of juries? When is each used? What is senatorial courtesy and when is it used? How many.
The Federal Judicial System: Applying the Law Chapter 14.
A Look at the Judicial Branch The Federal Court System & Supreme Court.
The United States Supreme Court Part 1. Main Job The main job of the Justices is to hear and rule on cases to decide whether laws are allowable under.
Ch. 14 Supreme Court Judiciary – The cornerstone of our democracy American Government.
The Supreme Court (CONT.)  Highest Court in the land  Final say on Constitutional issues  Longest lasting precedents  Open books to pages
The Federal Courts Chapter 16. Our System is Adversarial.
Chapter 14. The Federal Judicial System The Supreme Court of the United States Selecting and deciding cases Issuing decisions and opinions Majority Plurality.
The judicial branch of government is well established as an equal with the legislative and executive branches.
Political Aspects of the Court. Interpreting the Constitution Strict Construction – Problems? Original Intent – Problems? Living Constitution – Problems?
judicial review  the court’s authority to review a law to determine whether the law is in conflict with the Constitution.
Chapter 16 The Federal Courts. Article III: The Judicial Branch Job under Separation of Powers: Job under Separation of Powers: Interpret the Law Marbury.
Unit 6, Section 1 The United States Supreme Court.
Judicial Branch. The US Has a Dual Court System The 2 Systems? State Federal This duality reflects what principle of government?
Essential Question How Have The Values And Principles Embodied In The Constitution Shaped American Institutions And Practices?
Federal Courts= Supreme Court & Lower Courts
The Federal Courts Chapter 16 Copyright © 2009 Pearson Education, Inc. Publishing as Longman. Edwards, Wattenberg, and Lineberry Government in America:
The Federal Courts Chapter 16 Judiciary – “The cornerstone of our democracy.”
Chapter 16. The Nature of the Judicial System Introduction: Two types of cases: Criminal Law: The government charges an individual with violating one.
Judicial Branch Article III U.S. Constitution. Criminal Law Crime: any act that is illegal because society and government considers it harmful Criminal.
The Federal Courts The Judiciary.
Pearson Education, Inc., Longman © 2008
Lesson 25: What Is the Role of the Supreme Court in the American Constitutional System?
The United States Court System
The Federal Courts Chapter 19.
What is the role of the Supreme Court?
The Federal Court System
The Federal Judicial System: Applying the Law
Prove or disprove this statement
Judicial Branch.
The Judiciary Chapter 14.
The Federal Courts.
The judicial branch of government is well established as an equal with the legislative and executive branches.
The Federal Courts.
Chapter 18 Judiciary.
THE FEDERAL COURTS STUDENT NOTES 10.2.
Unit 2: Interactions Among Branches of Government
Chapter 16- The Supreme Court
Chapter 16 The Federal Courts.
The Federal Courts Chapter 16.
Article III – The Federal Court System
THE JUDICIARY.
The Federal Courts Chapter 16.
The Role and Organization of the Courts
The Federal Courts Chapter 16.
The United States Court System
Presentation transcript:

Judicial Decision-making

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 level

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 explanation

Legal Model Facts Find relevant precedents Determine relevant similarities/ differences Apply rule of law from earlier precedents Decision New Rule of Law

Political Model Attitudes Judicial Vote Role Orientations Institutional Context

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 Court

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 ideology

Ideology and Partisan Appointment

Voting Behavior of Justices, by Party

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 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, administrator

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 possible

Strategic 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 behavior

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 decisions

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 result

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 response Pollock and Lochner: judicial ideology overturned by politics Brown and Reynolds: judicial activism that enabled democratic politics

What Americans Want James Gibson, 2009

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 appalling Assumes Constitution has literal meaning/ “Protestant” vision of interpretation Simplistic vision of language Great for easy questions, useless for difficult questions

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 answers

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?

Activism Ranking (Rehnquist Court)

Decisions overturning Federal or State & Local Laws by Ideology