This thesis considers how judges sentence. It explores and critically analyses judicial decision making in sentencing along with judicial perceptions of, and attitudes towards, the sentencing process. Building upon a thorough review of recent scholarship on judicial decision making and sentencing, and incorporating a comparative study of domestic and Commonwealth sentencing jurisprudence, the thesis comprises the first empirical study of judicial sentencing in Scotland in a decade. The thesis reports the results of an interview-based study with 25 serving Scottish judges. In particular it investigates judicial views on the importance of judicial discretion; the pursuit of individualised justice; the aims and purposes of sentencing; the role of personal mitigation, leniency and mercy; the use of guidelines, and whether consistency in sentencing is either achievable or desirable. The empirical findings reveal that, in order to comply with the demands of justice, the majority of Scottish judges consider the process of sentencing to be an adjudicative balancing of the relevant facts in every case – a delicate art based on competence, experience and expertise which is best achieved through a process of “instinctive synthesis”. This means that sentencing must remain an essentially discretionary process structured by appellate guidance. Through an integration of the concept of equity as particularised justice, the Aristotelian concept of phronesis (or “practical wisdom”) and appellate courts’ focus on the instinctive synthesis, the thesis argues that judicial sentencing methodology – to the extent that it relies on intuition and experience – is best viewed in terms of a phronetic synthesis of the relevant facts and circumstances of the individual case. The sentencing task is thus conceptualised as a form of case-orientated, concrete and intuitive decision making that seeks individualisation through judicial recognition of the profoundly contextualised nature of the process.

This dissertation describes and analyzes the work of the Supreme Court of Canada, emphasizing its internal environment and processes, while situating the institution in its broader governmental and societal context. In addition, it offers an assessment of the behavioural and rational choice models of judicial decision making, which tend to portray judges as primarily motivated by their ideologically-based policy preferences. The dissertation adopts a historical institutionalist approach to demonstrate that judicial decision making is far more complex than is depicted by the dominant approaches within the political science literature. Drawing extensively on 28 research interviews with current and former justices, former law clerks and other staff members, the analysis traces the development of the Court into a full-fledged policy-making institution, particularly under the Charter of Rights and Freedoms. This analysis presents new empirical evidence regarding not only the various stages of the Court’s decision-making process but the justices’ views on a host of considerations ranging from questions of collegiality (how the justices should work together) to their involvement in controversial and complex social policy matters and their relationship with the other branches of government. These insights are important because they increase our understanding of how the Court operates as one of the country’s more important policy-making institutions. The findings have significant implications for debates over judicial activism and the relationship between courts and the other branches of government when dealing with the Charter. The project also concludes that the justices’ role perceptions – the ideas, norms and rules that govern their role as judges and that of the institution – both shape and constrain their decision making behaviour. Understanding judicial behaviour with a focus on role perceptions allows for bridge-building between the competing explanations of judicial decision making and for theory-building in the broader judicial politics literature. / Thesis (Ph.D, Political Studies) -- Queen's University, 2009-11-11 13:06:59.159

What is Binding in a Judicial Decision? (Czech-English Comparison) The aim of my thesis is to answer the question what is binding in judicial decision in Czech-English comparison. It thus deals with the issue of bind- ingness of the judicial decision and also, which part of the decision constiň tutes its binding element in the Czech law and in the law of England and Wales. The initial impulse was given by the fact that in judicial decisions of Czech highest courts there relatively often appear terms which originally come from common law systems. Therefore I try to compare the role which judicial decisions play in the civil law and common law in general and then more in detail in the Czech law and the law of England and Wales. The thesis is composed of eight chapters. Introductory Chapter states reasons for the choice of topic, aims and the method of research. Chapter Two examines the role of judicial decisions in civil law and consists of two subchapters. Subchapter One deals with the history of the role of judicial de- cisions. Subchapter Two then considers the significance and the normative force of judicial decisions at the present time. Chapter Three on the other hand examines role of judicial decisions in English common law and also consists of two subchapters. Subchapter One concisely...

A trial judge serves as gatekeeper in the courtroom to ensure that only reliable expert witness testimony is presented to the jury. Nevertheless, research shows that while judges take seriously their gatekeeper status, legal professionals in general are unable to identify well conducted research and are unable to define falsifiability, error rates, peer review status, and scientific validity (Gatkowski et al., 2001; Kovera & McAuliff, 2000). However, the abilities to identify quality scientific research and define scientific concepts are critical to preventing “junk” science from entering courtrooms. Research thus far has neglected to address that before selecting expert witnesses, judges and attorneys must first evaluate experts’ CVs rather than their scientific testimony to determine whether legal standards of admissibility have been met. The quality of expert testimony, therefore, largely depends on the ability to evaluate properly experts’ credentials. Theoretical models of decision making suggest that ability/knowledge and motivation are required to process information systematically. Legal professionals (judges and attorneys) were expected to process CVs heuristically when rendering expert witness decisions due to a lack of training in areas of psychology expertise. Legal professionals’ (N = 150) and undergraduate students’ (N = 468) expert witness decisions were examined and compared. Participants were presented with one of two versions of a criminal case calling for the testimony of either a clinical psychology expert or an experimental legal psychology expert. Participants then read one of eight curricula vitae that varied area of expertise (clinical vs. legal psychology), previous expert witness experience (previous experience vs. no previous experience), and scholarly publication record (30 publications vs. no publications) before deciding whether the expert was qualified to testify in the case. Follow-up measures assessed participants’ decision making processes. Legal professionals were not better than college students at rendering quality psychology expert witness admissibility decisions yet they were significantly more confident in their decisions. Legal professionals rated themselves significantly higher than students in ability, knowledge, and motivation to choose an appropriate psychology expert although their expert witness decisions were equally inadequate. Findings suggest that participants relied on heuristics, such as previous expert witness experience, to render decisions.

As courts in separation-of-powers systems are said to have the power of neither the purse nor the sword, their institutional legitimacy is essential for ensuring compliance with their decisions. While institutional legitimacy has been examined in-depth for national high courts, the legitimacy of sub-national courts has been overlooked. In this dissertation I develop a new measure of court-level institutional legitimacy for state high courts. I use multilevel regression and poststratification to create state-level measures from individual-level survey results. In this dissertation, I develop a theory of review and delegation by state high courts. I argue that these courts work toward two main goals: implementing their policy preferences and maintaining the legitimacy of their institution. I argue for a two-stage process that considers whether or not the court will decide on the constitutionality of a statute in the first stage and whether they will overturn the statute and delegate policy control back to the other branches of government in the second. Relying on the literatures on both institutional legitimacy and political delegation, I suggest that courts may delegate policy control back to the other branches of government by specifically stating this in their opinion. Finally, I examine the conditions under which a state high court will delegate to either the state legislature or the executive branch. Overall, I find that legitimacy is important when considering state high court decision-making; and it must be considered along with political context and institutional rules as one of the central motivations for state high courts in separation of powers theories.

abstract: Rates of domestic violence (DV) gun homicide in Arizona consistently exceed the national average (Everytown, 2015). For perpetrators, firearms continue to be their primary weapon of choice in DV homicides (Arizona Coalition to End Sexual and Domestic Violence, 2015). In Arizona, civil DV protection orders (POs) help reduce the growing rates of gun homicide through firearm removal provisions. Questioning how firearms shape judicial decision-making, this thesis contributes to existing literature on firearms and DV by exploring how judges come to interpret findings of credible threat and which factors are associated with judicial decisions to grant firearm removal pursuant to Ariz. Rev. Stat. § 13-3601. This thesis reveals how courts navigate competing concerns around victim safety and gun rights. Secondary qualitative and quantitative data collected as part of Dr. Alesha Durfee’s National Institute of Justice Researcher-Practitioner Partnerships Grant “Investigating the Impacts of Institutional and Contextual Factors on Protection Order Decision-Making” (Dr. Alesha Durfee, PI; Mesa Municipal Court and National Center for State Courts, co-PIs) (2015-IJ-CX-0013) are analyzed in this thesis. / Dissertation/Thesis / Masters Thesis Women and Gender Studies 2017

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Os paradigmas das relações de trabalho em que foram construídas as bases do Direito do Trabalho contemporâneo são oriundos de meados do século XX no período denominado de fordismo/taylorismo do sistema de produção. Entretanto a crise dos anos de 1970 induziram a metamorfose do capitalismo para sua sobrevivência e afetou diretamente o modo de como se desenvolve a relação entre o capital e o trabalho. Diante desses novos paradigmas é que se pode dizer que as relações de trabalho na pós-modernidade tornaram-se heterogêneas, fragmentadas, complexas, precarizadas e contraditórias. As relações entre o capital e trabalho são muito mais intensas e conflituosas na pós-modernidade e as estruturas jurídicas-trabalhistas constituídas na modernidade e que hoje estão ainda em vigor são insubsistentes para esses novos arranjos das relações laborais. Nas democracias ocidentais a jurisdição surge como principal forma de resolução dos conflitos e inevitavelmente os conflitos existentes entre o capital e o trabalho irão desaguar no Poder Judiciário trabalhista que detém, como uma de suas funções, a promoção da justiça social. Diante desse contexto o problema central da pesquisa reside na indagação: no atual ordenamento jurídico, conjugando-se os ideais do direito material e processual do trabalho, como se pode atribuir função social à decisão judicial trabalhista? Desse modo, foi estabelecido como objetivo geral analisar os possíveis elementos constitutivos de uma decisão judicial que atenda as perspectivas de uma função social. Para alcançar tal desiderato foi realizada uma pesquisa qualitativa, exploratórias e descritiva, com a obtenção de dados mediante uma pesquisa documental indireta. Ao final concluiu-se que o sentido de função social da decisão judicial trabalhista é verificado mediante dois aspectos. O primeiro, denominado de eficácia interna (efeitos inter partes) onde deverão ser asseguradas a garantia do trabalho digno, a tutela dos direitos fundamentais e de personalidade, assim como a observância do princípio protetivo. O segundo, denominado de eficácia externa (efeitos extra partes), deverão atender a preservação da segurança jurídica, a vedação de retrocessos sociais e proporcionar o combate à precarização das relações de trabalho. / The paradigm of labor relations in which were built the bases of Labor Law arise from the fordist period of production system. However, the crisis of the 1970s induced the metamorphosis of the capitalism for its survival and directly affected the way of developing the relationship between the capital and the labor. Faced with these new paradigms is that one can say that labor relations in postmodernity became heterogeneous, fragmented, complex, precarized and contradictory. The capital-labor relation is much more intense and quarrelsome in post-modernity and the legal structures of modernity in force today are at least unsubsistent for these new arrangements of labor relations. In western democracies, jurisdiction arises as the main form of conflict resolution and inevitably, conflicts between capital and labor will flow into the labor judiciary branch, which has, as one of its functions, the promotion of social justice. In face of this context, the central issue of the research lies in the question: In the current juridical ordainment, by conjugating the ideals of material and procedural labor law, is it possible to attribute a social function to the judicial labor decision? In that sense, it was established as a general objective to analyze the possible constitutive elements of a judicial decision that meets the perspectives of a social function. To achieve this desideratum, a qualitative, exploratory and descriptive research was conducted to obtain data through an indirect documentary research. At the end, it was concluded that the sense of social function of labor court decision is verified by two aspects. The first, called internal efficiency (inter partseffect), where there will be assured the guarantee of dignified work, the protection of fundamental rights of personality and observance of the protective principle. The second, called external efficiency (extra partseffects), must meet the preservation of legal safety, the fencing of social setbacks and provide the combat to the precarization of labor relations.