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The puzzle of judicial behavior (analytical perspectives on politics)
From local trial courts to the United States Supreme Court, judges' decisions affect the fates of individual litigants and the fate of the nation as a whole. Scholars have long discussed and debated explanations of judicial behavior. This book examines the major issues in the debates over how best to understand judicial behavior and assesses what we actually know about how judges decide cases. It concludes that we are far from understanding why judges choose the positions they take in court.
Lawrence Baum considers three issues in examining judicial behavior. First, the author considers the balance between the judges' interest in the outcome of particular cases and their interest in other goals such as personal popularity and lighter workloads. Second, Baum considers the relative importance of good law and good policy as bases for judges' choices. Finally Baum looks at the extent to which judges act strategically, choosing their own positions after taking into account the positions that their fellow judges and other policy makers might adopt. Baum argues that the evidence on each of these issues is inconclusive and that there remains considerable room for debate about the sources of judges' decisions. Baum concludes that this lack of resolution is not the result of weaknesses in the scholarship but from the difficulty in explaining human behavior. He makes a plea for diversity in research.
This book will be of interest to political scientists and scholars in law and courts as well as attorneys who are interested in understanding judges as decision makers and who want to understand what we can learn from scholarly research about judicial behavior.
Lawrence Baum is Professor of Political Science, Ohio State University.
eBook
Judges and their audiences
What motivates judges as decision makers? Political scientist Lawrence Baum offers a new perspective on this crucial question, a perspective based on judges' interest in the approval of audiences important to them. The conventional scholarly wisdom holds that judges on higher courts seek only to make good law, good policy, or both. In these theories, judges are influenced by other people only in limited ways, in consequence of their legal and policy goals. In contrast, Baum argues that the influence of judges' audiences is pervasive. This influence derives from judges' interest in popularity and respect, a motivation central to most people. Judges care about the regard of audiences because they like that regard in itself, not just as a means to other ends. Judges and Their Audiences uses research in social psychology to make the case that audiences shape judges' choices in substantial ways. Drawing on a broad range of scholarship on judicial decision-making and an array of empirical evidence, the book then analyzes the potential and actual impact of several audiences, including the public, other branches of government, court colleagues, the legal profession, and judges' social peers.
eBook
Pushback : the political fallout of unpopular Supreme Court decisions
In this interdisciplinary book in an interdisciplinary series, Dave Bridge crosses methodological boundaries to offer readers insights on the political \"pushback\" that historically follows Supreme Court rulings with which most Americans disagree. After developing a framework for identifying the Court's rare countermajoritarian decisions, Bridge shows how those decisions that liberals backed in the 1950s through the 1970s consistently upset conservative factions in the Democratic Party, which always managed to weather the storms—that is until Roe v. Wade in 1973. In Pushback, Bridge offers compelling hypotheses about how the two major parties can use unpopular Supreme Court rulings to shift the political momentum and win elections. He then puts those hypotheses to the test, analyzing the political fallout of recent rulings on controversial issues such as Obamacare, same-sex marriage, and religious liberty.
Certain to appeal to anyone interested in American political science and history, Pushback closes with a detailed examination of the unequivocally countermajoritarian Supreme Court ruling of our lifetimes, Dobbs v. Jackson Women's Health Organization, which overturned Roe. For the first time in 50 years, conditions are ripe for a party to win votes by campaigning against the will of the Court. Upcoming elections will tell if the Republicans overplayed their hand, or if Democrats will play theirs as skillfully as did the GOP after Roe.
eBook
The Limits of Legal Reasoning and the European Court of Justice
The European Court of Justice is widely acknowledged to have played a fundamental role in developing the constitutional law of the EU, having been the first to establish such key doctrines as direct effect, supremacy and parallelism in external relations. Traditionally, EU scholarship has praised the role of the ECJ, with more critical perspectives being given little voice in mainstream EU studies. From the standpoint of legal reasoning, Gerard Conway offers the first sustained critical assessment of how the ECJ engages in its function and offers a new argument as to how it should engage in legal reasoning. He also explains how different approaches to legal reasoning can fundamentally change the outcome of case law and how the constitutional values of the EU justify a different approach to the dominant method of the ECJ.
eBook
Principled judicial restraint : a case against activism
Many Americans believe that judicial activism is standard procedure on the modern Supreme Court. Political scientist Jerold Waltman asserts that justices routinely call for restraint when they disagree with specific majority decisions, but they then blithely abandon that position when it suits their purposes. Such calls for restraint are therefore unprincipled. In response, many people have argued that the Court should adopt a more restrained posture across the board, usually appealing to one of two ideas: the inherently undemocratic character of the Supreme Court or the likelihood that the Court is damaging its legitimacy by wading into so many controversial political issues. This book contends that what is sorely needed is a revised--actually a resurrected--constitutional theory that will delegitimize activism, or at least most of it, whether of the liberal or conservative variety. -- Back cover.
Book
Two Forms of Conservatism
The period between 1860 and 1920-inclusive of the Gilded Age and
much of the Lochner era in legal history-is typically
regarded as the heyday of conservative jurisprudence. According to
this received wisdom, conservative judges and much of the legal
profession were on the side of big business and the rich. Judges in
this period subscribed to \"classical\" legal thought, and it was
only when this was supplanted by \"progressive\" legal thought that
courts reached decisions critical of business.
Renowned legal historian William E. Nelson seeks to correct this
narrative by examining in close detail the work of judges in the
single jurisdiction of New York as well as the rulings of U.S.
Supreme Court justices. What he finds is another type of
conservatism besides the one that favors the rich. Instead, the
judges in this period often reached decisions that were critical of
business. Many of their accomplishments were forward-looking and
progressive in character but conservative for another reason: they
rigidly followed precedent, with only occasional exceptions. While
some legal realists see the emphasis on precedent as a veneer to
hide the judges' policy preferences, Nelson shows that this
explanation does not fit the evidence. The judges had no consistent
policy preferences, and their decisions favored a wide array of
policies.
Two Forms of Conservatism is the work of an expert
historian with an eye for detail and a deep understanding of legal
thought. He shows that these New York judges, who were quite
conservative regarding the law, nevertheless laid the foundation
for the liberalism of later political leaders.
eBook