Free speech is essential to democracy and political participation. But scholars hold competing expectations about whether courts will protect free speech in similar ways for extremism. Drawing on free speech cases from high courts in Australia, Canada, India, and South Africa, as well as from the European Court of Human Rights, I show that judges are substantially less likely to support free speech in cases involving extremist claimants or extreme speech. Moreover, I demonstrate how judges tailor arguments in response to concerns about extremism. This evidence has implications for our understanding of judicial behavior and the role that courts play in preserving democracy.
{"title":"Giving Succor to Extremism?","authors":"Stephan Stohler","doi":"10.1086/716786","DOIUrl":"https://doi.org/10.1086/716786","url":null,"abstract":"Free speech is essential to democracy and political participation. But scholars hold competing expectations about whether courts will protect free speech in similar ways for extremism. Drawing on free speech cases from high courts in Australia, Canada, India, and South Africa, as well as from the European Court of Human Rights, I show that judges are substantially less likely to support free speech in cases involving extremist claimants or extreme speech. Moreover, I demonstrate how judges tailor arguments in response to concerns about extremism. This evidence has implications for our understanding of judicial behavior and the role that courts play in preserving democracy.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49034281","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Court of Justice of the European Union (CJEU) uses a chamber system to more efficiently decide cases. To what extent, and under what conditions, does the CJEU ’ s chamber system undermine the consistency of the Court ’ s application of EU law? This paper contributes to the literature on the internal organization of collegial courts by presenting a computational formal model that predicts (a) that hearing cases in smaller chambers undermines the consistency of the Court ’ s application of EU law and (b) that the magnitude of this effect is larger when judges ’ preferences are more heterogeneous and smaller when plaintiffs strategically bring cases. Based on these findings, I use machine learning and empirical data on CJEU judgments in infringement cases to estimate the degree to which we should expect the chamber system to undermine the consistency of the CJEU ’ s application of EU law in practice.
{"title":"How the Chamber System at the CJEU Undermines the Consistency of the Court's Application of EU Law","authors":"Joshua C. Fjelstul","doi":"10.1086/717422","DOIUrl":"https://doi.org/10.1086/717422","url":null,"abstract":"The Court of Justice of the European Union (CJEU) uses a chamber system to more efficiently decide cases. To what extent, and under what conditions, does the CJEU ’ s chamber system undermine the consistency of the Court ’ s application of EU law? This paper contributes to the literature on the internal organization of collegial courts by presenting a computational formal model that predicts (a) that hearing cases in smaller chambers undermines the consistency of the Court ’ s application of EU law and (b) that the magnitude of this effect is larger when judges ’ preferences are more heterogeneous and smaller when plaintiffs strategically bring cases. Based on these findings, I use machine learning and empirical data on CJEU judgments in infringement cases to estimate the degree to which we should expect the chamber system to undermine the consistency of the CJEU ’ s application of EU law in practice.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43400149","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
To compare court decisions in a systematic way, it is typically necessary to first read these decisions and then apply legal methods to them. Measurement models that support analysts in this manual labor usually rely on judges ’ voting records. Since these data are often not available, weinstead propose a latent-variable model that uses the widely available references in court decisions to measure the decisions ’ latent position in their common case-space. We showcase our model in the context of forum shopping and forum selling of Germany ’ s lower courts.
{"title":"Scaling Court Decisions with Citation Networks","authors":"C. Arnold, B. Engst, T. Gschwend","doi":"10.1086/717420","DOIUrl":"https://doi.org/10.1086/717420","url":null,"abstract":"To compare court decisions in a systematic way, it is typically necessary to first read these decisions and then apply legal methods to them. Measurement models that support analysts in this manual labor usually rely on judges ’ voting records. Since these data are often not available, weinstead propose a latent-variable model that uses the widely available references in court decisions to measure the decisions ’ latent position in their common case-space. We showcase our model in the context of forum shopping and forum selling of Germany ’ s lower courts.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43001323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Most theories of judicial politics are built around explaining the puzzle of judicial independence. This article instead theorizes explicitly about the conditions under which politicians are prone to manipulate their courts. By positing that courts can partly endogenously shape leaders’ fate at the hands of legislative opponents, we argue that greater political insecurity leads presidents to gut judicial independence, not shore it up. Drawing on a novel data set of judicial crises across 18 Latin American countries following the third wave of democratization, we show that variation in judicial crises is systematically correlated with the president’s risk of nonelectoral instability as captured by the history of past presidential crises, presidential power, and antigovernmental protests. To identify whether the effects of protest on judicial manipulation are causal, we use an instrumental variable approach based on international commodity prices weighted for each country.
{"title":"Insecure Institutions","authors":"Gretchen Helmke, YeonKyung Jeong, Jae-Eun C Kim","doi":"10.1086/716430","DOIUrl":"https://doi.org/10.1086/716430","url":null,"abstract":"Most theories of judicial politics are built around explaining the puzzle of judicial independence. This article instead theorizes explicitly about the conditions under which politicians are prone to manipulate their courts. By positing that courts can partly endogenously shape leaders’ fate at the hands of legislative opponents, we argue that greater political insecurity leads presidents to gut judicial independence, not shore it up. Drawing on a novel data set of judicial crises across 18 Latin American countries following the third wave of democratization, we show that variation in judicial crises is systematically correlated with the president’s risk of nonelectoral instability as captured by the history of past presidential crises, presidential power, and antigovernmental protests. To identify whether the effects of protest on judicial manipulation are causal, we use an instrumental variable approach based on international commodity prices weighted for each country.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48865780","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Latent Judicial Intervention: The Case of Self-Claiming Palestinian Informers","authors":"Menachem Hofnung, Ofir Hadad","doi":"10.1086/717419","DOIUrl":"https://doi.org/10.1086/717419","url":null,"abstract":"","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47030860","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Research of judges and courts traditionally centers on judgments, treating each judgment as a unit of observation. However, judgments often address multiple distinct and more or less unrelated issues. Studying judicial behavior on a judgment level therefore loses potentially important details and risks drawing false conclusions from the data. We present a method to assist researchers with splitting judgments by issues using a supervised machine learning classifier. Applying our approach to splitting judgments by the Court of Justice of the European Union into issues, we show that this approach is practically feasible and provides benefits for text-based analysis of judicial behavior
{"title":"From One To Many: Identifying Issues in CJEU Jurisprudence","authors":"P. Schroeder, J. Lindholm","doi":"10.1086/717421","DOIUrl":"https://doi.org/10.1086/717421","url":null,"abstract":"Research of judges and courts traditionally centers on judgments, treating each judgment as a unit of observation. However, judgments often address multiple distinct and more or less unrelated issues. Studying judicial behavior on a judgment level therefore loses potentially important details and risks drawing false conclusions from the data. We present a method to assist researchers with splitting judgments by issues using a supervised machine learning classifier. Applying our approach to splitting judgments by the Court of Justice of the European Union into issues, we show that this approach is practically feasible and provides benefits for text-based analysis of judicial behavior","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45796997","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Does a domestic constitutional court within a state encourage greater acceptance of the jurisdiction of the International Court of Justice (ICJ)? This question is particularly relevant in Islamic law states (ILS). One might expect that ILS, which embrace the rule of law domestically, might do so internationally. However, this expectation paints an overly simplistic picture of the constitutional court’s role and its relationship with domestic and international politics. Employing original data on constitutional references to constitutional courts (1946–2012), we show that in the context of ILS, acceptance of the ICJ’s jurisdiction is conditional on an independent constitutional court.
{"title":"Domestic Constitutional Oversight and International Courts","authors":"E. J. Powell, Ilana Rothkopf","doi":"10.1086/716787","DOIUrl":"https://doi.org/10.1086/716787","url":null,"abstract":"Does a domestic constitutional court within a state encourage greater acceptance of the jurisdiction of the International Court of Justice (ICJ)? This question is particularly relevant in Islamic law states (ILS). One might expect that ILS, which embrace the rule of law domestically, might do so internationally. However, this expectation paints an overly simplistic picture of the constitutional court’s role and its relationship with domestic and international politics. Employing original data on constitutional references to constitutional courts (1946–2012), we show that in the context of ILS, acceptance of the ICJ’s jurisdiction is conditional on an independent constitutional court.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47619705","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Lower Courts in Interbranch Conflict","authors":"Joshua A Strayhorn","doi":"10.1086/716784","DOIUrl":"https://doi.org/10.1086/716784","url":null,"abstract":"","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44766660","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Aesthetic Preferences and Policy Preferences as Determinants of U.S. Supreme Court Writing Style","authors":"J. Budziak, D. Lempert","doi":"10.1086/717423","DOIUrl":"https://doi.org/10.1086/717423","url":null,"abstract":"","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-11-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41255590","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2021-09-28DOI: 10.33774/apsa-2021-d5fsz
Anna Gunderson, Kirsten Widner, M. Macdonald
Social media provides an inexpensive way for interest groups to inform and mobilize large audiences, but it is puzzling why organizations would spend time posting about activities like litigation that do not depend on public opinion or mobilization. We argue there are two reasons interest groups post about judicial advocacy on social media. First, organizations provide information about the courts on social media to build credibility and recognition as a trusted source of information. We hypothesize that membership groups will be less likely to use social media in this way than non-membership public interest organizations. Second, organizations use social media to claim credit for activity in the courts in order to increase their public and financial support. We expect that this strategy will be used most frequently by legal organizations. Using an original dataset of millions of tweets and Facebook posts by interest groups, we find support for these expectations.
{"title":"Pursuing Change or Pursuing Credit? Litigation and Credit Claiming on Social Media","authors":"Anna Gunderson, Kirsten Widner, M. Macdonald","doi":"10.33774/apsa-2021-d5fsz","DOIUrl":"https://doi.org/10.33774/apsa-2021-d5fsz","url":null,"abstract":"Social media provides an inexpensive way for interest groups to inform and mobilize large audiences, but it is puzzling why organizations would spend time posting about activities like litigation that do not depend on public opinion or mobilization. We argue there are two reasons interest groups post about judicial advocacy on social media. First, organizations provide information about the courts on social media to build credibility and recognition as a trusted source of information. We hypothesize that membership groups will be less likely to use social media in this way than non-membership public interest organizations. Second, organizations use social media to claim credit for activity in the courts in order to increase their public and financial support. We expect that this strategy will be used most frequently by legal organizations. Using an original dataset of millions of tweets and Facebook posts by interest groups, we find support for these expectations.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2021-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42106645","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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