Why (and When) Judges Dissent: A Theoretical and Empirical Analysis

An enduring piece of legal wisdom contends that the value of court opinions depreciates as they age and a variety of factors lead some cases to depreciate faster than others. We measure depreciation as the change in the frequency with which Supreme Court cases are cited as a function of their age. We then examine whether the rate of depreciation varies systematically based on ideological considerations, opinion characteristics, and citation history. Our results indicate, first, that precedents depreciate rather quickly and, for example, depreciate about 81 percent and 85 percent between their first and 20th years of age at the Supreme Court and courts of appeals, respectively. Second, few of the variables in our analysis have any appreciable influence on the pace of depreciation. Two variables capturing the citation history of a case have the most notable influence on depreciation, but even their effects are reasonably modest and somewhat short‐lived. Third, while our study focuses on depreciation (i.e., the change in the frequency of citation over time), it also produces an important implication for citation itself (i.e., the number of times a case is cited in a given year). We show that prior studies significantly overestimate the effect of almost every variable used to explain citation rates because those variables become substantially less influential as cases age. Future studies must therefore take into account that the effect of an independent variable on citations is conditional on the age of a precedent. This study therefore contributes to our understanding of the process by which law, as observed through citations to cases, changes.

Strategic Decision Making in Federal District Courts: Evidence from Securities Fraud Actions

Resolving the Great Divide in Pregnancy Discrimination

Contents: Series preface Introduction. The Selection and Retention of Judges: Senate voting on Supreme Court nominees: a neoinstitutional model, Charles M. Cameron, Albert D. Cover and Jeffrey A. Segal The politics of Supreme Court nominations: a theory of institutional constraints and choices, Brian J. Moraski and Charles R. Shipan Constituent influence in State Supreme Courts: conceptual notes and a case study, Melinda Gann Hall. Judicial Decision Making: Divisions of opinion among justices of the US Supreme Court, C. Herman Pritchett On the mysterious demise of consensual norms in the United States Supreme Court, Thomas G. Walker, Lee Epstein and William J. Dixon The study of judicial decision-making as an aspect of political behavior, Glendon A. Schubert Sophisticated voting and gate-keeping in the Supreme Court, Gregory A. Caldiera, John R. Wright and Christopher J.W. Zorn Predicting Supreme Court cases probabilistically: the search and seizure cases, Jeffrey A. Segal Voting behavior in the United States Courts of Appeals 1961-64, Sheldon Goldman Judicial policy-making and southern school segregation, Michael W. Giles and Thomas G.Walker, Civic virtue and the feminine voice in constitutional adjudication, Suzanna Sherry What do judges and justices maximize? (the same thing everybody else does), Richard A. Posner Strategic policy considerations and voting fluidity on the Burger Court, Forrest Maltzman and Paul J, Wahlbeck. Constraints on Judicial Power: Lower court checks on Supreme Court power, Walter F. Murphy Judicial partisanship and obedience to legal doctrine: whistleblowing on the Federal Courts of Appeals, Frank B. Cross and Emerson H. Tiller Overriding Supreme Court statutory interpretation decisions, William N. Eskridge Jr The logic of strategic defection: court-executive relations in Argentina under dictatorship and democracy, Gretchen Helmke. The Role of Courts in Democracies: Decision-making in a democracy: the supreme court as a na

Clinical Practice Guidelines and Recommendations: Room for Dissent?

Students of judicial behavior have increasingly turned to strategic accounts to understand judicial decision making. Scholarship on the Supreme Court and state high courts suggests that the decision to dissent is better understood in light of strategic considerations rather than simply reflecting ideological disagreement. We investigate whether these findings comport with behavior by judges on the U.S. Courts of Appeals. We develop a spatial model of the decision to dissent that incorporates both attitudinal and strategic elements and subject this model to empirical analysis. We find that ideological disagreement between a judge and the majority opinion writer is a more persuasive explanation of the decision to dissent than a strategic account in which a judge conditions a dissent on whether circuit intervention would obtain the judge's preferred outcome. Though we do not discount the existence of other types of strategic behavior on the Courts of Appeals, our research suggests that strategic accounts of dissenting behavior are not generalizable to all courts.

While many fine works of scholarship examine the role of the Supreme Court in American politics, there has been a dearth of scholarly books that focus on the Courts of Appeals. Continuity and Change on the United States Courts of Appeals unique both in its focus on this level of the judiciary and its approach that examines major trends over the twentieth century. Since the Supreme Court has the discretion to refuse to hear almost all cases appealed to it, the Courts of Appeals are usually the final option for litigants in the federal system. Unless overturned by the Supreme Court or, in cases decided on the basis of statute, by Congressional action, the rulings can have a significant impact on government policy.The authors present the first comprehensive examination of the shifting role of the Courts of Appeals, investigating changes over time and presenting the first systematic analyses of those changes. Their work is the first book to utilize the database of the U.S. Courts of Appeals, analyzing over 15,000 cases to examine trends between 1925 and 1988. The book answers questions such as who are the judges? What are their decisional tendencies? What has been the role of region and partisan politics? Who are the litigants? And who has won and who has lost throughout the twentieth century? It is the only current, up-to-date book on the Courts of Appeals and an essential read for all scholars and students interested in American politics and judicial behavior.Donald R. Songer is Professor of Political Science, University of South Carolina. Reginald S. Sheehan is Associate Professor of Political Science and Director of the Program for Law and Juridical Politics, Michigan State University. Susan B. Haire is Assistant Professor of Political Science, University of Georgia

'To Remand, or Not to Remand': Ventura's Ordinary Remand Rule and the Evolving Jurisprudence of Futility

The Law of Solicitors' Liabilities, previously known as Solicitors' Negligence and Liability, provides a comprehensive guide to all aspects of solicitors’ negligence, liability in equity and wasted costs. Written by leading practitioners in the field, it deals with a variety of topics, from general principles to specific situations, providing practical guidance to the procedural aspects of bringing and defending a claim for solicitors’ negligence. The new fourth edition includes: - A new chapter on insurance law focusing on a number of key topics which arise, particularly in relation to solicitors’ insurance: aggregation; condonation; definition of private legal practice; notification; possibly successor practice rules. - Updated case law to cover all recent Supreme Court and Court of Appeal decisions, eg Hughes-Holland v BPE (Supreme Court) scope of duty and extent of damages; Redler v AIB (Supreme Court): breach of trust; Lowick Rose v Swynson (Supreme Court): lifting the corporate veil in claims against professionals; Tiuta International v de Villiers (Court of Appeal): lenders’ claims, impact of a remortgage on damages; Wellesley v Withers (Court of Appeal): test for remoteness of damage; and E Surv v Goldsmith Williams (Court of Appeal): implied duty on solicitors in lenders’ claims. - Regulatory/disciplinary developments, eg revised SRA Code of Conduct.

This article reviews the decisions of the Supreme Court in Owners of M.V. Alabera v. NAIC (2008)11 NWLR (pt.1097) 182 which held that a State of Nigeria in relation to one another is outside jurisdiction of the Federal High Court of Nigeria and leave is required to issue, serve and mark as concurrent, one within and the other to be served outside jurisdiction and the recent decision of the Supreme Court that the Federal High Court has one jurisdiction means outside the Federal Republic of Nigeria in the case of Biem v. Social Democratic Party & 2ors unreported SC.341/2019. Even the issue of one jurisdiction portends a greater problem in that the courts will continue to be congested as some Federal causes are also determinable by the State High Courts and all appeals from Magistrate Courts, Customary Courts, High Courts all pass through the Court of Appeal, Customary Court of Appeal and Sharia Courts of Appeal all the way to Supreme Court. This article adopts the doctrinal approach of reviewing the cases and incidences of True Federalisms to recommend Constitutional Amendments to create state courts of Appeal and Supreme Courts to help decongest the courts and concludes that in as much as one jurisdiction problem of the Federal High Court has been clarified by the Supreme Court in Biem’s case, a lot in terms of Constitutional amendment to decongest the Court ought to be embarked upon as done in other countries such as the United States of America.

Law & Psychiatry: Congress Restores the Americans With Disabilities Act to Its Original Intent.

The Post-TSA Airport: A Constitution Free Zone?

On 27 July 2011, the Supreme Court of the United Kingdom delivered its judgment in Jivraj v. Hashwani,[1][1] unanimously overturning last year's decision of the English Court of Appeal. The facts of this case and the decision of the Court of Appeal have been widely discussed and will be only briefly addressed here. The decision of the Supreme Court has been met with approval within the international arbitration community in London, having restored the legal position to that prior to the Court of Appeal's ruling. Most importantly, it has removed the shadow of doubt which had been cast by the Court of Appeal's decision as to the validity of arbitration agreements incorporating institutional rules. Although on its facts, Jivraj was concerned with discrimination on the grounds of religion, the effect of the Court of Appeal's decision and the operation of UK employment equality law was to render susceptible to challenge the nationality restrictions commonly included in institutional rules. This article will question where the limits on party autonomy in the selection of arbitrators lie following the Supreme Court's decision. In particular, the role of section 1(b) of the Arbitration Act 1996 (the ‘Act’) will be examined, with consideration given to the role which the public interest should play in restricting parties' selection of arbitrators. [1]: #fn-1

This case note provides an analysis of the Paris Court of Appeal’s (the Court of Appeal) second annulment (the Second Annulment), dated 10 January 2023, of an arbitration award rendered in favour of Energoalliance ltd (Energoalliance) under the Energy Charter Treaty (ect) in 2013. The case note focuses on the interpretation of the term “Investment”. The Second Annulment follows a first Court of Appeal annulment that was set aside by the French Supreme Court (Supreme Court) due to its incorrect interpretation of the term “Investment”. The Second Annulment, which applied a preliminary ruling of the Court of Justice of the European Union (cjeu), is instructive with regard to the factual circumstances which courts in EU Member States (Member States) will consider in determining whether a debt can qualify as an “Investment”. More specifically, the Second Annulment addresses the qualities which define an asset as “commercial” and, therefore, preclude it from being an “Investment”. Some ambiguity, however, remains in the Second Annulment with regard to the term “commercial” due, in the opinion of the authors, to the inconsistency between certain findings in the Supreme Court’s annulment of the first Court of Appeal annulment, and the cjeu’s preliminary ruling.

In December 2021, the Supreme Court of the United States heard arguments in the case of Dobbs v. Jackson Women’s Health Organization. Mississippi’s Gestational Age Act, which prohibited abortions after 15 weeks of pregnancy, was subject to constitutional review. On June 24th, 2022, the Supreme Court issued its opinion having held that the U.S. Constitution does not guarantee a right to abortion. In doing so, the Court overruled two landmark decisions — Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey — issued by the Court in 1973 and 1992, respectively. The author of this article attempts to trace these developments chronologically and to put the Supreme Court abortion jurisprudence in both legal and political contexts. The primary part of the article is an analysis of the Dobbs decision, namely the majority opinion, several concurring opinions, and the dissenting opinion. Based on the text of the decision and points made by legal scholars in academic works and public comments, the author identifies factual and methodological flaws in the majority opinion and speculates how exactly the overruling of these landmark precedents might affect other constitutional rights guaranteed by the Supreme Court both before and after 1973. Analyzing the legal consequences of the Dobbs decision, the author concludes that the returning of the issue of abortion to the states does not simplify the situation, but, on the contrary, potentially invites a large number of jurisdictional disputes between the states, overflowing the federal court system. It is also noted that federal lawmakers could codify the right to abortion. However, taking into account the current political environment and the balance of power in the U.S. Congress, this scenario does not seem very plausible. Finally, the author discusses whether the legitimacy crisis of the Supreme Court is a part of a global trend and whether there might be a future need to reimagine the very institution of constitutional review.