Legal Ideology, Legal Doctrine and the UK's Top Judges (original) (raw)

"More than Politics: Ability and Ideology in the British Appellate Committee", Journal of Law, Economics & Organization 32(1), 61-93, 2016

Journal of Law, Economics & Organization, 2016

We argue that a model of judicial behavior that accounts for differences in justices’ ability and ideology provides a fruitful alternative for the empirical analysis of judicial decision-making around the world, and illustrate this by focusing on the case of the United Kingdom. We show that the model explains the decisions of the Lords of Appeal remarkably well, and improves the fit of a purely ideological model. We use our estimates to tackle previously unaddressed questions about the relative role of justices’ preferences and ability in the Appellate Committee. ( JEL C11, C13, D71, K40.)

More than Politics: Ability and Ideology in the British Appellate Committee

Journal of Law Economics and Organization

We argue that a model of judicial behavior that accounts for differences in justices' ability and ideology provides a fruitful alternative for the empirical analysis of judicial decision-making around the world, and illustrate this by focusing on the case of the UK. We show that the model explains the decisions of the Lords of Appeal remarkably well, and improves the fit of a purely ideological model. We use our estimates to tackle previously unaddressed questions about the relative role of justices' preferences and ability in the Appellate Committee.

Constraint at the Ideological Extremes: Judicial Voting and Legal Regimes

A detailed body of literature has challenged the model of Supreme Court justice voting as ideologically sincere, arguing that legal regimes exert independent effects on merits voting and restrain ideological discretion. This study hypothesizes that this proposition should manifest itself most clearly in the voting behavior of justices on the ideological extremes, the justices whose votes are most reliable. We find evidence that although legal rules do correlate with restrictions on ideological voting, we find that there is little evidence that this behavior is externally imposed by a legal regime. Rather, we find that evidence that the changes in ideological voting patterns are attributable to common consensus to abide by new legal frameworks.

The Politics of Judicial Independence in the UK's Changing Constitution

2015

Relations between Judges and Parliament In the years following the passing of the Constitutional Reform Act 2005, the relationship between Parliament and the judiciary has undergone a structural change. The removal of the UK's highest court of appeal from the House of Lords formally separated the judges from the legislature and this has inevitably changed the institutional architecture within which judges and parliamentarians interact. But the provisions of the Act do not tell the whole story of those changes, which did not begin and end in 2005. The removal of the Law lords was a critical moment, but practices shaping relations between Parliament and judges were changing before then, and have evolved since. In this chapter, we explore how both sides understand this changing relationship. Our focus is on the ways that Parliament acts both as a guardian of judicial independence and also offers new and constructive avenues of judicial accountability. The findings set out in this chapter counterbalance the tendency of lawyers and judges to focus on the high-profile but relatively rare occasions when politicians fail to respect judges and their decisions. There will always be tensions between Parliament and the courts. Recent years have provided a number of high-profile examples: sustained wrangling over the proper scope of judicial review in human rights and national security cases, the role of the European Court of Human Rights, and the boundaries of parliamentary privilege. Decisions by courts in relation to human rights and judicial review are often points of friction between judges and politicians, but this is not our focus here. We are interested

Activism and Restraint within the UK Supreme Court

European Journal of Current Legal Issues, 2015

This article provides evidence for the extent to which the UK Supreme Court as a body-and Supreme Court Justices as individuals-have displayed an activist or restrained attitude to their decision-making role. Taking October 2009 as the starting point (when the UKSC came into existence) the article surveys the degree to which the Court and individual Justices have (1) departed from precedents, (2) interpreted legislation in unanticipated ways, (3) rejected the government's position on matters of social, economic or foreign policy, and (4) developed the common law. The article concludes that, while the Supreme Court as a whole remains as conservative as the Appellate Committee of the House of Lords which preceded it (with the possible exception of its approach to immigration law), there are notable differences between the attitudes of individual Justices, one or two of whom appear to be straining at the leash.

What is “Politicisation” of Constitutional Courts? Towards a Decision-oriented Concept.

In: Geisler, Antonia/Hein, Michael/Hummel, Siri (Hrsg.): Law, Politics, and the Constitution. New Perspectives from Legal and Political Theory. Frankfurt/Main u.a.: Peter Lang, pp. 31–45., 2014

‘Politicisation’ is one of the most frequently used keywords in public discourse and scientific research on constitutional courts. However, whereas the concept of judicialisation, which is equally important in this field of research, has been the subject of considerable discussion in political and legal theory, a distinct definition of the term politicisation is lacking in many studies. In light of this, we address the question of how politicisation of constitutional courts can adequately be understood. To this end, we examine the theoretical conceptions of the relationship between politics, law and constitutional adjudication that underlie the different understandings of politicisation. Based on our findings, we develop a decision-oriented concept of politicisation, which is not only suitable for many theoretical approaches, but can also be detected in numerous empirical studies.

"Judicial Decision-Making, Ideology and the Political: Towards an Agonistic Theory of Adjudication" (2022) 33 Law and Critique 175

Law and Critique, 2022

The present paper puts forward a first outline of a possible agonistic theory of adjudication, conceived of as an extension of Chantal Mouffe's agonistic theory of democracy onto the domain of the juridical, and specifically, judicial decisionmaking. Mouffe's concept of the political as the dimension of inherent and unalienable conflicts (antagonisms) which, nonetheless, need to be tamed for a pluralist democracy to function, creates an excellent vantage point for a critical theory of adjudication. The paper argues for perceiving all judicial decisions as having a double nature-juridical and political. Cloaked in legal form, judgments nonetheless decide on individual instances of ongoing collective conflicts, opposing workers to employers, consumers to traders, tenants to landlords, moral progressives to traditionalists, minorities to majorities and so forth. Judges, when handing down judgments, enjoy a 'relative sovereignty', being always already inscribed into the institutional imperatives of the juridical, on one hand, and ideological influences, on the other, but at the same time called upon to decide in the terrain of the undecidable and contingent (after all, law does not 'apply itself' on its own). Indeed the determinacy of legal decisions is only relative: in many cases judges can, by performing a sufficient amount of legal interpretive work, reach a conclusion which will be different from the prima facie interpretation. The collective conflicts of a various nature (economic, ideological, socio-political), once they are juridified, become the object of judicial decisions which, in light of Mouffe's theory, can be seen as temporary hegemonic fixations. The goal of critical legal scholarship is to destabilise such hegemonies in the name of justice. This can be done not only through an external critique of the law, but also through an internal one. The methodological approach advanced in the latter part of the paper emphasises the need for a critique of judicial decisions based on the consideration of all possible alternative decisions a court could have reached, and their evaluation in the light of conflicting interests and ideologies.