"ACT Administrative Appeals Tribunal Decisions." Ethos: Official Publication of the Law Society of the Australian Capital Territory, (200), pp. 42.

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 decision-making. 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 on-going 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 theprima facieinterpretation. 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. (shrink)

This article focuses on strategic manoeuvring that takes place in Dutch administrative judi- cial decisions. These decisions may be seen as a distinct argumentative activity type. Starting from the char- acteristics that traditionally are per- tinent to this activity type, I will explore how implications of current discussions on the changing task of the administrative judge may be- come manifest in the judge’s strate- gic manoeuvring by means of the presentation of argumentation and the introduction of additional stand- (...) points. The case study of Dutch administrative law serves to demon- strate what consequences changing institutional demands may have for the starting points of the analysis of argumentation in judicial decisions. (shrink)

Criticism of court decisions is a favored American pastime. Typically, such criticisms are grounded in extra-legal criteria such as common sense (or lack of it) and morality (or immorality). Thus Tennessee Valley Authority v. Hill (1978) in which the Supreme Court halted the construction of the nearly completed Tellico Dam because it endangered the habitat of the snail darter, an action forbidden by the Endangered Species Act, was said to confound common sense; and many have called immoral Roe v. (...) Wade (1973) which said the right to abortion, at least through the first trimester, was constitutionally guaranteed. 1 However, even if such criticisms are justified, they do not address the legal issue, which is whether the court got the law wrong. (shrink)

The application of artificial intelligence (AI) to judicial decision-making has already begun in many jurisdictions around the world. While AI seems to promise greater fairness, access to justice, and legal certainty, issues of discrimination and transparency have emerged and put liberal democratic principles under pressure, most notably in the context of bail decisions. Despite this, there has been no systematic analysis of the risks to liberal democratic values from implementing AI into judicial decision-making. This article sets out (...) to fill this void by identifying and engaging with challenges arising from artificial judicial decision-making, focusing on three pillars of liberal democracy, namely equal treatment of citizens, transparency, and judicial independence. Methodologically, the work takes a comparative perspective between human and artificial decision-making, using the former as a normative benchmark to evaluate the latter. -/- The chapter first argues that AI that would improve on equal treatment of citizens has already been developed, but not yet adopted. Second, while the lack of transparency in AI decision-making poses severe risks which ought to be addressed, AI can also increase the transparency of options and trade-offs that policy makers face when considering the consequences of artificial judicial decision-making. Such transparency of options offers tremendous benefits from a democratic perspective. Third, the overall shift of power from human intuition to advanced AI may threaten judicial independence, and with it the separation of powers. While improvements regarding discrimination and transparency are available or on the horizon, it remains unclear how judicial independence can be protected, especially with the potential development of advanced artificial judicial intelligence (AAJI). Working out the political and legal infrastructure to reap the fruits of artificial judicial intelligence in a safe and stable manner should become a priority of future research in this area. (shrink)

The two grand theories of judging – legal realism and legal formalism - have their differences set around the importance of legal rules. For formalists, judging is a rule-bound activity. In its more extreme versions, a judge is seen as an operator of a giant syllogism machine. Legal realists, in contrast, argue that legal rules, at least formal legal rules, do not determine outcomes of cases. Legal realism has been misunderstood almost everywhere outside its birthplace – the United States. Continental (...) legal theory, for one, views legal realism as practical, down-to-earth, hard-nosed school of thought which is opposed to the more “scientific” theories. The purpose of this article is two-fold. First, to show what legal realists really stood for - that contrary to the popular myth, they did not maintain that formal legal rules do not matter at all; that most of them considered legal rules to be important, only many of those rules are informal rules. Second, contrary to the popular understanding in Continental legal theory, legal realism by its nature was not an antiscientific theory of judging - in fact, it was either a first scientific theory of judging or at least its prototype. (shrink)

A review‐article of Julius Stone, Legal System and Lawyers' Reasonings, Stanford, University Press Herbert Wechsler, Principles, Politics and Fundamental Law, Harvard University Press H. L. A. Hart, The Concept of Law, Oxford University Press Richard A. Wasserstrom, The Judicial Decision, Toward a Theory of Legal Justification, Stanford University Press Judith N. Shklar, Legalism, Harvard University Press.

An essay in normative jurisprudence where the author is concerned with delineating and evaluating legal decision procedures. The appeal to precedent and equity are critically examined and found to be deficient. Wasserstrom proposes as an improvement a two-level decision procedure, which is like precedent in appealing to a rule of law as a necessary condition for deciding a case, and like equity "in that considerations of justice are directly relevant to the justification of any decision." He frankly admits that this (...) decision procedure is an improvement at the "price of becoming imprecise at certain crucial points." The discussion is informed throughout with an appreciation of both legal and philosophical treatments of the issues.--S. M. W. (shrink)

Artificial intelligence plays an increasingly important role in legal disputes, influencing not only the reality outside the court but also the judicial decision-making process itself. While it is clear why judges may generally benefit from technology as a tool for reducing effort costs or increasing accuracy, the presence of technology in the judicial process may also affect the public perception of the courts. In particular, if individuals are averse to adjudication that involves a high degree of automation, particularly (...) given fairness concerns, then judicial technology may yield lower benefits than expected. However, the degree of aversion may well depend on how technology is used, i.e., on the timing and strength of judicial reliance on algorithms. Using an exploratory survey, we investigate whether the stage in which judges turn to algorithms for assistance matters for individual beliefs about the fairness of case outcomes. Specifically, we elicit beliefs about the use of algorithms in four different stages of adjudication: (i) information acquisition, (ii) information analysis, (iii) decision selection, and (iv) decision implementation. Our analysis indicates that individuals generally perceive the use of algorithms as fairer in the information acquisition stage than in other stages. However, individuals with a legal profession also perceive automation in the decision implementation stage as less fair compared to other individuals. Our findings, hence, suggest that individuals do care about how and when algorithms are used in the courts. (shrink)

The “balancing exercise” engaged in by judges in cases involving conflicts of rights can be analysed in rhetorical terms as a process for resolving rhetorical antinomies, where an antinomy is understood as a contradiction between two equally justifiable conclusions drawn from two or more equally applicable rules or principles. By investigating the possible responses to antinomies and identifying their types, we can better understand the process of judicial decision‐making and the ways which international and national courts justify their (...) class='Hi'>decisions. (shrink)

Aulis Aarnio addresses the question of how legal interpretations should be justified. Aarnio considers a justification to be rational only if the justification process has been conducted in a rational way, and if the final result of this process is acceptable to the legal community. According to Aarnio, a theory concerning the justification of legal interpretations should contain a procedural component specifying the conditions of rationality for legal discussions, and a substantial component specifying the material conditions of acceptability for the (...) final result. The procedural component of Aarnio’s theory formulates rules for the rationality of legal discussions. The substantial component specifies when the result of a legal interpretation can be called acceptable. Aarnio considers such a result acceptable if it is acceptable to a particular legal community in which there is consensus with respect to certain norms and values. (shrink)

Climate litigation presents specific challenges to judicial decision-making, related to uncertainties caused by the border-crossing nature of the applicable legal frameworks and the complexity of the climate system. Judiciaries around the world often turn to process-based review when dealing with such uncertainties. In process-based review, judges focus on ensuring that decision-making procedures are fair and inclusive of all relevant interests, instead of on substantive policy choices. However, in the case of climate litigation, it appears that where judges wish to (...) use process-based review to avoid substantive judgments in the face of uncertainty, they cannot escape uncertainty about who to include and exclude from the processes. We argue that judges engaged in process-based review must develop an ethic of responsibility for those who are excluded from the democratic process by judicial decision. This ethic of responsibility focuses on the moment before and after the judicial decision, calling the judge's attention to her responsibility to become receptive to the ‘face of the other’ and to reflect on the ‘moral remainders’ caused by her decision. While the decision on exclusion remains based on uncertain grounds, this approach helps ensure it is taken responsibly. (shrink)

Can the evidence provided by software systems meet the standard of proof for civil or criminal cases, and is it individualized evidence? Or, to the contrary, do software systems exclusively provide bare statistical evidence? In this paper, we argue that there are cases in which evidence in the form of probabilities computed by software systems is not bare statistical evidence, and is thus able to meet the standard of proof. First, based on the case of State v. Loomis, we investigate (...) recidivism predictions provided by software systems used in the courtroom. Here, we raise problems for software systems that provide predictions that are based on bare statistical evidence. Second, by examining the case of People v. Chubbs, we argue that the statistical evidence provided by software systems in cold hit DNA cases may in some cases suffice for individualized evidence, on a view on which individualized evidence is evidence that normically supports the relevant proposition (Smith, in Mind 127:1193–1218, 2018). (shrink)

In legal theory, it is widely claimed that decisions in hard cases are based on weighing and balancing. However no reconstructions are given of the deep structure of the complex argumentation underlying the justification of these decisions. The author develops a model for the analysis of weighing and balancing of arguments in the justification of judicial decisions that are based on teleological-evaluative considerations. The justification is reconstructed as a complex argumentation that consists of different levels of (...) argumentation and it is explained how these levels of argumentation relate to the burden of proof of a judge who gives a decision that is based on a weighing and balancing in which teleological-evaluative considerations are invoked. (shrink)

In this contribution the author develops an argumentation model for the reconstruction of weighing and balancing on the basis of teleological-evaluative considerations. The model is intended as a heuristic and critical tool for the rational reconstruction of the justification of judicial decisions. From the perspective of a rational discussion, it makes explicit the choices underlying the weighing and balancing on the basis of goals and values so that they can be made explicit and submitted to rational critique.

Philosophers of law generally appear to assume that there is a very close connection between a judicial decision’s being required by law and its being justified. In this paper I shall try to show that this assumption is mistaken.

This paper aims to shed light on the putative functions of placing images in judicial opinions from the judges’ perspective. Thus far, commentators have overlooked the functions that images play for judges when used in judicial opinions and consequently have failed to provide a thorough understanding of the process. To help fill this gap, Jerome Frank’s ideas on judging will be presented. The argument goes that using images in judicial opinions can be interpreted as a way to (...) enable the decision-making process to be, as far as possible, devoid of hypocrisy, closer to judicial candor and more open to scrutiny. This notion can be excavated from Frank’s works in light of the existential features of both passing judgments and articulating decision-making processes by and for judges themselves. As will be shown, Frank’s views on judicial decision-making are more original and enlightening than critics might suggest and they are particularly relevant when examining the use of images in judicial opinions from a judge’s perspective. (shrink)

In this contribution the prototypical argumentative patterns are discussed in which pragmatic argumentation is used in the context of legal justification in hard cases. First, the function and implementation of pragmatic argumentation in prototypical argumentative patterns in legal justification are addressed. The dialectical function of the different parts of the complex argumentation are explained by characterizing them as argumentative moves that are put forward in reaction to certain forms of critique. Then, on the basis of an exemplary case, the famous (...) Holy Trinity case, the way in which the U.S. Supreme Court uses pragmatic argumentation in this case is discussed by showing how the court instantiates general prototypical argumentative patterns in light of the institutional preconditions of the justification in the context of the specific case. (shrink)

The author gives an analysis of the strategic manoeuvring in the justification of legal decisions from a pragma-dialectical perspective by showing how a judge tries to reconcile dialectical and rhetorical aims. On the basis of an analysis and evaluation of the argumentation given by the US Supreme Court in the famous Holy Trinity case, it is shown how in a case in which the judge wants to make an exception to a legal rule for the concrete case tries to (...) meet the dialectical reasonableness norm by seeing to it that his standpoint is sufficiently defended according to the requirements of the burden of proof of a judge in a rational critical discussion and how he tries at the same time to be rhetorically convincing for the legal audience by presenting the decision as a choice that is in line with the argumentation schemes and starting points that can be considered as accepted by the legal community in the US and by the US community as a whole. (shrink)

Cigarette smoke is by far the leading preventable cause of death and disease in the United States. It has been estimated to kill between 419,000 and 589,000 smokers and up to 65,000 non-smokers each year. This premier status is hardly a new development, having been true for most of the last century, and known to be true at least since the first Surgeon General’s Report in 1964.Why then are tobacco products exempt from any significant federal oversight or control? Why do (...) cigarette advertisements, pitched to young smokers and non-smokers, continue to be plastered on every available surface inside and outside many convenience stores and to adorn the pages of popular magazines? Why, decades since the makers of far less dangerous products began to be held accountable in tort law, was the first payment by a cigarette company on a products liability judgment not made until 2001? (shrink)

Cigarette smoke is by far the leading preventable cause of death and disease in the United States. It has been estimated to kill between 419,000 and 589,000 smokers and up to 65,000 non-smokers each year. This premier status is hardly a new development, having been true for most of the last century, and known to be true at least since the first Surgeon General’s Report in 1964.Why then are tobacco products exempt from any significant federal oversight or control? Why do (...) cigarette advertisements, pitched to young smokers and non-smokers, continue to be plastered on every available surface inside and outside many convenience stores and to adorn the pages of popular magazines? Why, decades since the makers of far less dangerous products began to be held accountable in tort law, was the first payment by a cigarette company on a products liability judgment not made until 2001? (shrink)

The World Health Assembly has encouraged WHO member-states to establish capacity in health technology assessment (HTA) as a support for achieving universal health coverage (UHC). Simultaneously, the WHO has stated that UHC is “a practical expression of the concern for health equity and the right to health.” This has prompted questions about potential tensions between priority-setting efforts and the right to health on the road to UHC. South Africa (SA) is an ideal setting in which to explore how the priority-setting (...) work of an HTA body may be integrated with an existing rights framework. (shrink)

This article examines the continuing use of problematic sexual stereotypes at appellate level in the English and Welsh legal system. Using five cases as illustrations, it argues that, notwithstanding professional training and guidance on sexual equality matters, certain senior judges in this jurisdiction still at least sometimes openly employ crude and problematic sexual stereotypes in their judgments or fail to deal appropriately with the use of these stereotypes by trial judges. The central point is that there is still a significant (...) problem with the open use of crude sexual stereotypes in legal reasoning at a senior level in this jurisdiction, despite the pressure on all members of the legal system to appear to be ‘politically correct’. (shrink)

Although the genetic argument is a widely used interpretative argument, what it amounts to does not seem to be altogether clear. Basic forms of the genetic argument that are distinguished are often too rough to provide an adequate basis for the evaluation of an interpretative decision. In this article I attempt to provide a more detailed analysis of the genetic argument by making use of pragma-dialectical insights. The analysis clarifies the character and the structure of different forms of the genetic (...) argument and thus the elements that are relevant for the evaluation of the argument.*. (shrink)

In my paper I will analyze decisions of the Russian Constitutional Court and courts of general jurisdiction, in which they interpret ordinary and seemingly unambiguous words and phrases. In a number of cases this interpretation is made in a manner, which is suspect from a linguistic point of view. The analysis shows that there is no consistency in the application by Russian courts of the “plain language” rule and that literal interpretation may be used selectively as a means of (...) legitimizing the decisions made on non-linguistic grounds. Though literal interpretation can be often incompatible with the concept of justice and therefore judges should also take into account other criteria, there are examples of court decisions, in which literal interpretation would have been more appropriate from the perspective of justice, separation of powers and human rights. The article shows how use and misuse of language by judges is employed as a tool in judicial decision-making. (shrink)

Empirical research in the field of legal interpretation shows that, in many cases, analogy argumentation is complex rather than simple. Traditional analytical approaches to analogy argumentation do not explore that complexity. In most cases analogy argumentation is reconstructed as a simple form of argumentation that consists of two premises and a conclusion. This article focuses on the question of how to analyze and evaluate complex analogy argumentation. It is shown how the pragma-dialectical approach provides clues for analyzing complex analogy argumentation (...) and how the criteria for evaluating analogy argumentation can be used to reconstruct these types of complex analogy argumentation in Dutch case law. The critical questions in the argumentation scheme do not only serve as a tool for analyzing arguments justifying analogy argumentation, but are also helpful in analyzing arguments against a specific analogy argumentation. (shrink)