Inferences in Judicial Decisions About Facts

Making Law Possible

Why do some of the world's constitutional courts challenge governmental authority over many kinds of policies, while others avoid conflict over particularly sensitive or salient political issues? Why do some elected officials immediately obey judicial resolutions that challenge their authority, while others find ways not to implement judicial decisions? These questions are important in understanding the role constitutional courts play in ensuring that elected officials respect a state's fundamental political rules.1 If constitutional courts are unwilling to challenge governmental authority, or if public officials are unwilling to implement politically unfavorable decisions, the degree to which constitutional courts can serve as effective horizontal mechanisms of accountability will be considerably constrained. Despite the importance of both questions, much of the growing comparative scholarship on law and courts has sought to explain judicial behavior without addressing the reactions of government officials to adverse judicial decisions.2 Consequently, scholars are left with a largely one-sided account of judicial politics that provides much empirical support for theories of judicial decision making but little support for theoretical conclusions about the implementation of judicial policy. In contrast to this trend, recent work by Georg Vanberg integrates diverse studies of judicial activism and policy implementation by specifying what might be called a public enforcement mechanism for judicial orders, in which public support for courts and the related pressure constituents can place on their representatives may induce compliance with adverse judicial resolutions.3 On this account, public support also can provide the political cover courts require to take on sensitive political conflicts. Of course, this mechanism works only if people are sufficiently informed about the nature of the conflicts they are purported to enforce. Accordingly, Vanberg considers how the relative transparency ofjudicialized conflicts influences interbranch conflict.4 Despite Vanberg's important theoretical advance in simplifying diverse yet connected studies, his model leaves a number of issues underdeveloped. This article addresses two. First, public willingness to help enforce judicial resolutions and public capacity to impose significant costs on their representatives for instances of noncompliance are distinct concepts. They should be treated as such in both theoretical and empirical analysis. Second, if the kind of information concerning interbranch conflict to which people have

In line with the widely accepted rule that states have both negative and positive obligations towards peaceful assemblies, the assemblies are now protected from violent disturbances and provocations by other individuals. Non-violent disturbances, however, remained completely out of our focus. In this essay, the problem is named 'hijack attempts in assemblies' and the author aims to define it in order to find its solution in the future. The reader's attention is brought to the distinctive elements of the problem: (1) characteristics of assembly, (2) the nature, intensity and context of the distortion, as well as (3) concurring and dissenting opinions. Dangers stemming from the hijacking are also examined. The final part is dedicated to the relationship between freedom of assembly and freedom of expression. Theoretical aspects of the problem are illustrated in practical examples. The leading case is the Civil March for Aleppo case, which was the first one to draw the author's attention. Two judicial decisions (the US Supreme Court and The German Federal Constitutional Court) are presented to show what difficulties follow the conflict in practice and to extract principles that can be of guidance. Nevertheless, the author vows not to be bound by a particular jurisdiction. Resolution of the problem that is offered at the end draws from functional arguments and aims at satisfying those who approach the problem from the angle of normative, rather than analytical jurisprudence.

BackgroundExplicit evolutionary models are required in maximum-likelihood and Bayesian inference, the two methods that are overwhelmingly used in phylogenetic studies of DNA sequence data. Appropriate selection of nucleotide substitution models is important because the use of incorrect models can mislead phylogenetic inference. To better understand the performance of different model-selection criteria, we used 33,600 simulated data sets to analyse the accuracy, precision, dissimilarity, and biases of the hierarchical likelihood-ratio test, Akaike information criterion, Bayesian information criterion, and decision theory.ResultsWe demonstrate that the Bayesian information criterion and decision theory are the most appropriate model-selection criteria because of their high accuracy and precision. Our results also indicate that in some situations different models are selected by different criteria for the same dataset. Such dissimilarity was the highest between the hierarchical likelihood-ratio test and Akaike information criterion, and lowest between the Bayesian information criterion and decision theory. The hierarchical likelihood-ratio test performed poorly when the true model included a proportion of invariable sites, while the Bayesian information criterion and decision theory generally exhibited similar performance to each other.ConclusionsOur results indicate that the Bayesian information criterion and decision theory should be preferred for model selection. Together with model-adequacy tests, accurate model selection will serve to improve the reliability of phylogenetic inference and related analyses.

WHAT, in general, is a good reason for decision by a court of law? This is the question of jurisprudence; it has been asked in an amazing number of forms, of which the classic What is Law? is only the briefest. I propose to consider, in this Comment, one recent answer to this question that supplied by Professor Richard Wasserstrom in his book, The Judicial Decision. I do so because Professor Wasserstrom's argument shares with much other recent jurisprudence some dubious and generally unrecognized assumptions about the logic of legal justification. My principal purpose is to expose these assumptions. Wasserstrom's book is distinguished from the bulk of the American literature of legal philosophy by its care and clarity. He writes with full control over his organization and so enables us to study his argument with some confidence that we understand what he is trying to prove and why. This is in refreshing contrast to other recent efforts along the same line much of American jurisprudence has consisted in nothing more rigorous than the translation of homilies into rhetoric, and back again. Wasserstrom's careful articulation of his purposes, and of the assumptions he intends to make, are indispensable aids in identifying and assessing the hidden more powerful assumptions which his argument also involves. Wasserstrom approaches the question, What is a good reason for a judicial decision, by attempting to construct the model of an ideal decisive procedure. His search for this ideal is conducted through a sort of tournament. Three principal candidates are introduced. The first two are the procedures of precedent (it prescribes that all particular cases are to be decided by an appeal to the relevant, extant legal rule, i.e., to precedent)2 and the procedure of equity (it insists that individual cases be decided by appealing to that which is just or equitable for the particular case).3 The third is Wasserstrom's own two-level procedure, modeled on the ethical doctrine of restricted utilitarianism. It counsels the judge faced with decision to proceed as follows. He must determine which of the rules of law that he might select to give in the situation, considered as a rule and not simply with respect to its present application, best promotes the function of the legal system. (It is assumed that each legal system ought to have such a function.) In making this determination, he must take *Previously printed, in slightly different form, under the title Wasserstrom:The Judicial Decision, 75 ETHIcs 47 (1964) -(University of Chicago Press) [Copyright 1964 by the University of Chicago]. tAssociate Professor of Law, Yale University. 1. WASSERSTROM, THE JUDIcIAL DEcISION (1961). 2. Id. at 6. 3. Id. at 7.

The 'R' in 'IRAC' stands for rule. IRAC is a format for organizing briefs of or for cases, or examination answers. It rests on an enactment theory of judicial decision making: judges in deciding cases either lay down rules as would a legislature or follow rules already laid down in prior judicial decisions. I argue that this key aspect of IRAC is not merely wrong, it is seriously misguided. One might have thought the enactment theory had been put to rest by the anti-positivist arguments of Dworkin, Fuller and others a quarter of a century ago and more. In academic writing perhaps it has; but in pedagogy it is alive and well, although not always explicitly. It carries with it misleading conceptions of stare decisis and its use, the power of judges, the sources of legal argument, notice of the law, justice in decisions, and the nature of legal practice. I assemble arguments on these and other points and address criticisms of them. I also attempt explanations of why IRAC and its rules should have become so popular. Fifty years after the death of Stalin, and more than ten since the fall of communism, it is as if 'Uncle Joe' were still at large: people generally and students in particular want to be told what to think. In an era of marketing with customer satisfaction as a priority, there is ample incentive to satisfy that wish. On the other hand, perhaps IRAC's Rules are merely efficient ways of conveying doctrine, and do little permanent harm.

State Supreme Courts have grown in importance during the last thirty years in the formation of public policy. Their judgements determine many aspects of constitutional law, tort reform, judicial selection, and campaign finance reform, among others. A vast body of literature has been developed that analyzes State Supreme Court decision making, which emphasizes the conditioning effects of the legal and institutional environment. This article expands on this previous work by incorporating the interaction of the judiciary with other government institutions, and applies the Positive Political Theory approach to law and legal institutions to the State Supreme Court. In addition, the neo-institutionalist literature of the selection process is incorporated to defend a systematic approach towards decision making. Towards that end, this article explores how judicial decisions are conditioned by institutional rules, resulting in a formal modeling of how the State Supreme Courts interact with political actors to form constitutional interpretation. This model includes the judicial selection process'retention or competitive reelection—and is extended to constitutional amendment rules, explaining how these two interact rather than acting independently. Finally, the hypothesis is tested that when State Supreme Court judges face retention elections and political preferences are homogeneous, the probability increases of observing constitutional amendment prosposals.

Towards a theory of low-cost decisions

Preface The Process of Constitutional Amendment and Constitutional Change A Survey of Constitutional Amendments and Their Impact on Change A Selective Look at Supreme Court Decisions and Their Impact on Change A Selective Look at the Impact of the Political Branches in Effecting Change Examining the Terminology and Theory of Constitutional Change Laws, Orders, Judicial Decisions, and Amendments: A Comparative Analysis Appendix: Amendments to the U.S. Constitution Selected Bibliography Index

Recent theories of judicial decision making suggest that federal judges are likely to exploit the structure of law to protect decisions that implement their policy preferences. One perspective asserts that judges, when making decisions that move policy toward their preferred policy outcomes, will be more likely to choose legal grounds—or judicial instruments—that are difficult for other political actors to reverse than when making decisions that move policy away from their preferred outcomes. We test this “strategic instrument” perspective and compare our results with those expected from other models of judicial decision making. Using federal circuit court cases reviewing the decisions of the Environmental Protection Agency from 1981 to 1993, we conduct both bivariate analysis and multinomial logit regression to measure the effect of policy goals on the legal instruments chosen by judges. Our results support the conclusion that strategic considerations systematically influence judicial decision m...

La verdad de los hechos como conditio sine qua non de una decisión judicial justa en el pensamiento de Michele Taruffo

The third edition of this highly respected textbook introduces students of public administration to the practical issues of administrative law. While useful to law school students, it is most relevant to public management students. The presentation provides a concise foundation to the history and theory of administrative law, rule making, and judicial decisions. The most important issues in administrative law are included—meaningful issues for present and future administrators. A larger number of recent cases and other up-to-date information will be found in the book in order to make the student aware of the kinds of legal problems likely to be encountered in public agencies. One or two cases illustrate each problem at hand, rather than discussing numerous arcane court decisions and technicalities of legal procedure, in order to sketch the broad contours of the present law.

State Supreme Courts have grown in importance during the last thirty years in the formation of public policy. Their judgements determine many aspects of constitutional law, tort reform, judicial selection, and campaign finance reform, among others. A vast body of literature has been developed that analyzes State Supreme Court decision making, which emphasizes the conditioning effects of the legal and institutional environment. This article expands on this previous work by incorporating the interaction of the judiciary with other government institutions, and applies the Positive Political Theory approach to law and legal institutions to the State Supreme Court. In addition, the neo-institutionalist literature of the selection process is incorporated to defend a systematic approach towards decision making. Towards that end, this article explores how judicial decisions are conditioned by institutional rules, resulting in a formal modeling of how the State Supreme Courts interact with political actors to form...

Judges play a central role in the American legal system, but their behavior as decision makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made. The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In their view, this model describes judicial behavior better than either the traditional "legalist" theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making. Federal judges are not just robots or politicians in robes.

Court jurisdiction shows that the infliction of penalty by a judge is his personal decision. In judicial decisions, the judges do not specify clear premises or rules that were the basis for a concrete decision on the size of the penalty. In this paper, we attempt to build a model of inference based on fuzzy logic, allowing to formalize the principles resulting from the act. The logical model was built without a judge, through a detailed study of legal prerequisites contained in the Polish Penal Code. The purpose of this paper is a formal analysis of the rules and principles of the functioning of the law using mathematical tools. The results of our research will show whether the model built by us, based on a profound analysis of the premises contained in the Penal Code can give similar results as judicial decisions. In practical terms, the proposed inference model may also help inexperienced judges to make decisions. Due to the assumed limitations in the model, the reasons for general and special prevention as well as many other special regulations contained in the law code were not taken into account.