Dissent Rates Research Articles

Intellectual Property Investment at the International Court of Justice After Certain Iranian Assets

In Certain Iranian Assets, the International Court of Justice (ICJ) acknowledges that the protection of patents is part of the broader remit of a corporate entity with legal personality in international law. The case was not about intellectual property investments, nor was it a case about investment protection in the proper sense of that body of law. However, when the Court, in very light form, mentions the protection of patents, the World Court raises the bar for the dynamics of intellectual property investments in international law. This comment seeks to do two things. Frist, it will map out how the ICJ came to acknowledge the protection of patent rights in corporate entities and secondly, it will set out the parameters in which the ICJ develop its own version of investment protection as such. Certain Iranian Assets is an interesting case since it covers a range of issues with a high rate of declarations, separate opinions, and partial dissent on different matters. I will try to paint a picture of intellectual property investments based on the separate opinions and declarations, and most importantly, its linkage to the meaning of a company and company assets, especially under Article III(1) of the Treaty of Amity, Economic Relations. Patent Protection, Intellectual Property Investments, World Court, Assets, Interpretation

Were CEO pay cuts during the COVID-19 pandemic merely symbolic? Shareholders' reaction and outrage

We examine whether CEO pay cut announcements during the COVID-19 pandemic are symbolic and made to appease various stakeholders. We find that firms announcing a CEO pay cut are more likely to announce news that has a negative impact on their stakeholders, suggesting that pay cut announcements were used to alleviate stakeholder pressure. We also document that the pay cut announcements are associated with lower CEO salary but not total pay. In fact, our results suggest that pay cut announcements were symbolic, whereby salary cuts were substituted with increases in cash bonuses. Furthermore, we find a lower rate of shareholder dissent votes if a firm announced a pay cut. However, this effect is reduced if the CEO received higher total pay. Finally, we document higher shareholder dissent votes if a firm received government subsidies and paid higher CEO compensation or increased dividends. This suggests that shareholders do not prioritise their immediate financial interests and hold managers accountable for actions perceived negatively by the public.

How Many Cases Are Easy?

Abstract Because judges are expected to decide cases through the impartial application of existing law, they are often reluctant to admit that they must make law in hard cases. Many judges claim that such hard cases are rare, constituting roughly 10 percent of cases. In stark contrast, economic models of the selection of disputes for litigation predict that easy cases will settle, so that only hard cases would remain in trial and appellate courts. Empirical indicators, such as dissent rates or voting differences between Democratic and Republican appointees, have yielded muddled conclusions about the proportion of easy and hard cases in appellate courts. In fact, none of these crude statistics relate directly to the proportion of easy cases. This article develops a new approach for empirically analyzing the proportion of easy cases. Although the easiness and hardness of cases are subjective, it is possible to estimate feasible combinations of the proportion of hard cases and clear errors. This approach relies only on the basic premise that reasonable judges should not disagree in easy cases. The article then illustrates this approach using two datasets of appeals. An analysis of asylum appeals in the 9th Circuit finds widespread disagreement, implying high proportions of hard cases, clear errors, or both. By contrast, voting data from labor and environmental cases in the D.C. Circuit is consistent with the claim that 90 percent of cases are easy and 1 percent of decisions are clear errors.

The Human Factor: Algorithms, Dissenters, and Detention in Immigration Enforcement

ObjectiveThis article measures Immigration and Customs Enforcement (ICE) officers’ punitive biases in immigration enforcement, comparing rates of dissent with low‐ and high‐risk classification scores. It provides evidence that contextual political factors alter dissent with risk classification assessment (RCA) scores and describes how such dissent informs more punitive versions of ICE's RCA scoring rules.MethodsWe implement a statistical decomposition technique that compares the gap between low‐ and high‐risk dissent rates in risk assessments. Historical and qualitative evidence describes the effect of punitive biases in algorithmic editing.ResultsResults of this investigation show that larger gaps in dissent rates between low‐ and high‐risk classifications result in more punitive scoring updates in later versions of the RCA algorithm.ConclusionOur article provides evidence that risk assessment tools implemented to reduce biases in immigration enforcement were updated to accommodate the punitive bias of ICE officers and supervisors.

Uncertainty and Voting on the Bank of England’s Monetary Policy Committee

Differences of opinion are a natural and vital part of monetary policy making by committee. With the appropriate stance for monetary policy both unobservable and uncertain, individual policymakers need to synthesise a wide range of information, including the views of other committee members. Using a novel measure of views that we construct from text analysis of the Bank of England Monetary Policy Committee’s minutes and speeches, we show that both individual economic assessments and broader committee views are important in explaining individual voting. But in periods of high uncertainty both become more volatile and carry less weight in votes, consistent with the predictions of a simple voting model embedding a signal extraction problem. There is no increase in the dispersion of economic assessments in periods of uncertainty, nor in the mean dissent rate. Thus we show that interpreting the voting record as a reflection of policy uncertainty is unreliable, and highlight the value of individual committee members’ communications — such as speeches — for conveying differences in view.

Atskirosios nuomonės institutas Lietuvos konstitucinės justicijos procese: raida ir tobulinimo perspektyvos

[full article and abstract in Lithuanian; abstract in English]
 The article analyses the legal regulation of separate opinions. The research is focused the procedure of constitutional justice and its legislative development. The author argues that legal regulation of separate opinions in Lithuania should be improved by assigning mandatory publication of separate opinions together (in the same form and at the same time) with judicial decisions.
 Summary
 The article analyses the legal regulation of separate opinions in Lithuanian administrative, civil, constitutional and criminal procedures. The research is focused on the legislative development, and its main aspects and arising problems.
 Separate opinion of a judge in administrative, civil and criminal procedures in Lithuania is a part of case material, not court judgement. This status deems that separate opinions produced by judges of such courts are usually undetectable by the public, unless the courts or parties of the case selectively publish them. The absence of mandatory publication makes comprehensive studies on the dissent rate in these courts impossible, and limits the knowledge of judicial deci­sion-making in this respect.
 Judges of the Constitutional Court since its establishment in 1993 were banned from issuing separate opinion in an effort foster the authority of a new court, and to protect it from political influence. After long discussions, separate opinions were introduced in late 2008. However, legal regulation was and remains flawed since it allows for separate opinions to be written and published days after the public pronouncement of the Constitutional Court’s ruling. Separate opinions in this jurisdiction are also viewed as a part of case material, and not as annex to the court’s decision.
 It is concluded that the stated issues of the legal regulation of separate opinions should be resolved by legal amend­ments, which would take into account the original concept of separate opinions and comparative cases of the leading courts. Therefore, separate opinion should be mandatorily published together with court judgements (within the same form and at the same time) as their annexes, not just an addition to case material. This model would improve the quality of legal argumentation in both separate opinions and judgments, and allow for a more thorough research on judicial decision-making. It would also mitigate possibilities for political or biased interpretations of separate opinions, which arise from the possibility to write and publish separate opinions after the public pronouncement of a court judgement. concerned with environmental requirements, would satisfy the best integration of environmental protection requirements into the legal regulation of public procurement.
 If a narrow definition of green public procurement with significant drawbacks continues to dominate in Lithuania, there is a danger that green procurement will remain a formal instrument. It is suggested to strengthen contract enforce­ment and control, as well as encourage more frequent use of advanced environmental criteria, gradually moving to the exclusive implementation of these criteria.
 The new possibilities for the inclusion of environmental aspects into public procurement at both EU and national levels are not well implemented in the sub-legislative definition of green public procurement and its subsequent legal regulation in Lithuania. It is suggested to improve the sub-legislative regulation of green procurement accordingly by considering new environmental provisions in the public procurement regulation, implementing them in relevant envi­ronmental protection requirements.

How Many Cases are Easy?

Judges and legal scholars have long debated how many cases are easy. Legal realists, critical legal scholars, and political scientists have contended that there are many hard cases that require judges to exercise discretion or law-making authority. Many judges and mainstream legal scholars, however, have argued that most cases are easy and only require fidelity to existing legal sources. Despite the importance of this question, legal scholars and social scientists have struggled to evaluate how many cases are easy, and the existing literature provides wildly disparate estimates. Appellate judges repeatedly report, based on their own experiences, that roughly 90 percent of cases are easy. In stark contrast, economic models on the selection of disputes for litigation predict that most cases that are litigated and appealed will be hard. Empirical indicators have yielded muddled conclusions, especially with regard to the federal courts of appeals. Scholars often cite rates of dissent and unpublished decisions, interpreting these statistics as showing that most cases are easy. On the other hand, studies that compare voting behavior among different types of appellate panels often conclude that many cases are hard. In fact, none of this research directly relates to the proportion of easy cases. This Article critically analyzes existing claims and proposes a new approach for thinking empirically about the proportion of easy cases. Starting from the basic premise that judges cannot reasonably disagree in easy cases, it shows that evidence of disagreement can be decomposed into hard cases and unreasonable errors. It then explains how to estimate the structure of judicial disagreement in the U.S. courts of appeals by examining disagreement both within and between panels. Finally, the article illustrates the framework developed here using two data sets of appeals. An analysis of appeals from the National Labor Relations Board in the D.C. Circuit demonstrates that panels would disagree on the outcome in at least 30 percent of cases. A second data set of asylum appeals in the Ninth Circuit shows that panels would disagree in at least 60 percent of cases. If 90 percent of these cases are easy, as some judges have contended, then at least 5 percent of the NLRB cases and at least 7 percent of the asylum cases must be unreasonable errors.

Court Leadership, Agenda Transformation, and Judicial Dissent

AbstractThe previous literature debates whether rising rates of dissent are best explained by changes in court leadership and the composition of justices or by greater judicial discretion and changes in agenda. This article examines the influential hypotheses derived from the literature in the relevant and testable European case of the Supreme Court of Norway. It shows that the rising rate of dissent in the Court in the 1990s was mainly catalyzed by fundamental changes to the Court’s discretionary power and by its newfound agenda to work more actively with the development of the law and the protection of human rights.

Electoral Cycles among US Courts of Appeals Judges

We find field evidence consistent with experimental studies that document the contexts and characteristics making individuals more susceptible to priming. Just before US presidential elections, judges on the US courts of appeals double the rate at which they dissent and vote along partisan lines. Increases are accentuated for judges with less experience and in polarized environments. During periods of national unity—wartime, for example—judges suppress dissents, especially if they have less experience or are in polarized environments. We show that the dissent rate increases gradually from 6 percent to nearly 12 percent in the quarter before an election and returns immediately to 6 percent after the election. If highly experienced professionals making common-law precedent can be politically primed, it raises questions about the perceived impartiality of the judiciary.

Disinclined to dissent? A study of the Supreme Court of India

ABSTRACTThe Supreme Court of India, while frequently lauded for being among the most powerful institutions of its kind, has on equally several occasions been noted for an unusually high ratio of unanimous decisions. This paper explores whether the institutional features, to which we attribute the growing influence of the Court, are also reasons for the low dissent rate. It empirically examines the impact of features, such as the manner of constituting benches and allocating matters, the approachability and workload of the Court and prevailing seniority norms, on dissent. While dissents are usually explained by reference to the personality and politics of individual justices, here it is argued that the institutional context is of greater relevance in this choice to (not) dissent in India. The paper critically examines these norms and features that likely impose constraints on judicial behaviour, to in turn comment on the priorities and preferences of the Court.

Discouraging Dissent

Chief judges often strive to promote consensus in their courts to promote public confidence, durable precedents, and intracourt collegiality; yet, some chiefs succeed, whereas others fail. In this article, we identify institutional factors that facilitate and hinder the chief’s ability to promote consensus by examining dissent rates in every state court of last resort from 1995 to 2004. Consistent with prior work, we find that consensus is partially driven by the chief judge’s formal powers and the institutional resources available to court members. However, we also find that member resources moderate the chief’s influence. The chief’s formal powers are associated with lower dissent rates in courts that lack time, staff, docket control, and insulation from the electorate. In contrast, judges who possess greater resources are highly resistant to the chief’s influence. Our findings suggest a fundamental dynamic of political leadership that may operate across institutional contexts.

Do Specialized Courts Make a Difference? Evidence from Brazilian State Supreme Courts

Specialized courts have been a panacea of legal reform in Europe in the last ten to twenty years. Few studies have studied their performance and alleged advantages. This paper considers a particularly interesting example. It explores possible variations in terms of constitutional review across Brazilian state supreme courts. We focus on possible differences between decisions made by a non-specialized court en banc or by a specialized court panel (órgão especial), the latter being frequent in the larger states. An original dataset was constructed by the authors to empirically explore this question. The dataset considered 630 cases of abstract review judged between January 1, 2006, and December 31, 2010, across twenty-five state supreme courts of the Brazilian federation. The main purpose of our inquiry is to determine whether or not there are significant variations in the outcome of the cases of abstract review as a function of a specialized panel. We find some evidence that the existence of specialized panels matters for the likelihood and rates of dissent as well as duration of procedures, but not for other variables. Implications for legal reform are also discussed.

Do Specialized Courts Make a Difference? Evidence from Brazilian State Supreme Courts

Specialized courts have been a panacea of legal reform in Europe in the last ten to twenty years. Few studies have studied their performance and alleged advantages. This paper considers a particularly interesting example. It explores possible variations in terms of constitutional review across Brazilian state supreme courts. We focus on possible differences between decisions made by a non-specialized court en banc or by a specialized court panel (orgao especial), the latter being frequent in the larger states. An original dataset was constructed by the authors to empirically explore this question. The dataset considered 630 cases of abstract review judged between January 1, 2006, and December 31, 2010, across twenty-five state supreme courts of the Brazilian federation. The main purpose of our inquiry is to determine whether or not there are significant variations in the outcome of the cases of abstract review as a function of a specialized panel. We find some evidence that the existence of specialized panels matters for the likelihood and rates of dissent as well as duration of procedures, but not for other variables. Implications for legal reform are also discussed.

The political determinants of judicial dissent: evidence from the Chilean Constitutional Tribunal

Many judicial scholars argue that judicial dissent stems from partisanship or political differences among judges on courts. These arguments are evaluated using the variation in political backgrounds on a constitutional court, Chile’s Constitutional Tribunal, using case-level and vote-level data from 1990 until 2010. The analysis shows that the rate of dissent rises after major reforms to the powers and judicial selection mechanism of the Tribunal in 2005 and that the dissent rate corresponds to periods of greater partisanship on the court. Further, decisions regarding the unconstitutionality of laws intensify the propensity to dissent at both the case and judge level. In further examination of variation across judges’ voting records, judges who have identifiable partisan associations of any kind are generally more likely to dissent than those with limited political backgrounds.

A Tournament of Judges

We suggest a Tournament of Judges where the reward to the winner is elevation to the Supreme Court. Politics (and ideology) surely has a role to play in the selection of justices. However, the present level of partisan bickering has resulted in delays in judicial appointments as well as undermined the public's confidence in the objectivity ofjustices selected through such a process. More significantly, much of the politicking is not transparent, often obscured with statements on a particular candidate 's meritcasting a taint on all those who make their way through the judicial nomination process. We argue that the benefits from introducing more (and objective) competition among judges are potentially significant and the likely damage to judicial independence negligible. Among the criteria that could be used are opinion publication rates, citations of opinions by other courts, citations by the Supreme Court, citations by academics, dissent rates, and speed of disposition of cases. Where political motivations drive the selection of an alternative candidate, our proposed system of objective criteria will make it more likely that such motivations are made transparent to the public. Just as important, a judicial tournament for selection to the Supreme Court will serve not only to select effective justices, but also to provide incentives to existing judges to exert effort.

An Analysis of the IASB’s Dissenting Opinions

In this paper we report the results of a content analysis of dissenting opinions found in International Accounting Standards Board (IASB) standards. During 2001 to 2009 the IASB issued 26 financial accounting standards or amendments to standards. Twenty-five of these standards contained dissenting opinions. We identify and classify the arguments in the dissenting opinions using the methodology of Bradbury and Harrison (2015). The results show that the IASB standards are characterised by a higher rate of dissent reflecting the greater diversity of the IASB board. Dissenting arguments have implications for due process that is being followed and on the use of qualitative characteristics.

The dissent voting behaviour of central bankers: what do we really know?

We examine the determinants of the dissent in central bank boards voting records about monetary policy rates in the Czech Republic, Hungary, Sweden, the UK and the US. In contrast to previous studies, we consider 25 different macroeconomic, financial, institutional, psychological or preference-related factors jointly and use Bayesian model averaging (BMA) to formally assess the attendant model uncertainty. We find that the rate of dissent is between 5% and 20% for the examined central banks. Our results suggest that most of the examined regressors, including factors that capture the effects of inflation and output, are not robust determinants of voting dissent. This result suggests that unobserved characteristics of central bankers and different communication strategies drive the dissent, rather than the level of macroeconomic uncertainty.

Case Selection and Dissent in Courts of Last Resort: An Empirical Study of the Israel Supreme Court

This article evaluates 3,344 appeals to the Israel Supreme Court (ISC) to assess case selection, case outcomes, and rates of dissent and concurrence, with an emphasis on the behavior of individual justices. We show that analyses of judicial activity, and of individual justices’ behavior, in courts with discretionary jurisdiction should account for the court’s case selection process. This finding has implications for studies of all courts with discretionary appellate jurisdiction and for studies of individual judicial behavior. ISC assignment of cases for preliminary screening by individual justices has a substantial non-random component. Over 95% of the discretionary jurisdiction criminal cases were screened by two justices, who significantly differed in the rate at which they referred cases to 3 judge screening panels. Screening outcomes also varied significantly in discretionary civil cases. The rate of granting review was highest in tort cases. The rate of granting review was substantially higher in cases involving female defendants than in cases involving male defendants. With respect to outcomes in cases reaching the merits, the high rate of reversal in discretionary jurisdiction cases is not a consequence of one or two justices’ behavior; granting review of cases to reverse them is an ISC-wide practice. Regardless of the initial screening justice, the reversal rate in discretionary cases, civil or criminal, was well above the 24% to 32% reversal rate in mandatory jurisdiction cases. Dissent rates were low, less than 2% overall and only 3% in discretionary jurisdiction cases. Rates of concurrence with an opinion by an individual justice were substantially higher.

Acclimation Effects and the Chief Justice: The Influence of Tenure on the Decisional Behavior of the Court’s Leader, 1888-2007

Under the Acclimation Effect view, recent appointees to the Court modify their behavior in systematic ways early in their tenure as opposed to their later decisional tendencies. Similarly, many studies have examined the chief justice’s unique behavior. This study blends these two rich strands and explores whether chief justices demonstrate an acclimation effect, such that their behavior changes systematically through time. Using more than a century of Court data, this study examines whether new chief justices’ concurrence and dissent rates decline and whether they write fewer individual opinions gradually. We find that the chief justice's position serves to create an incentive structure that is uniquely associated with declining rates of specially concurring and dissenting votes in certain cases. Also, new chief justices over time pen fewer special concurrences and dissents in some policy areas. Our results hence imply that the chief justice experiences unique acclimation effects in learning to marshal the Court.

Acclimation Effects and the Chief Justice: The Influence of Tenure and Role on the Decisional Behavior of the Court’s Leader, 1888-2007

Under the acclimation effect view, recent appointees to the Court modify their behavior in systematic ways early in their tenure as opposed to their later decisional tendencies. Similarly, many studies have examined the chief justice’s unique behavior.This study blends these two rich strands and explores whether chief justices demonstrate an acclimation effect, such that their behavior changes systematically through time. Using more than a century of Court data, this study examines whether new chief justices’ concurrence and dissent rates decline and whether they write fewer individual opinions gradually. I find that the chief justice’s position serves to create an incentive structure that is uniquely associated with declining rates of specially concurring and dissenting votes in certain cases. Also, new chief justices pen fewer special concurrences and dissents in some policy areas. My results hence imply that the chief justice experiences unique acclimation effects in learning to marshal the Court.