Tom Clark has fulfilled a dual role in the development of the American legal system: He has served as a moderating influence, often arbitrating the differences between opposing factions on the Court; and, he has served as a figure of caution and restraint upon the members of the Court, developing a judicial philosophy which is deferential to other units of government.

Depuis l'adoption de la nouvelle Constitution démocratique du Brésil en 1988, la Cour suprême joue un rôle de plus en plus significatif au sein du système politique brésilien. Constamment sollicitée pour contrôler la constitutionnalité des lois, le renforcement de ses attributions en matière de contentieux constitutionnel fait aujourd'hui de la Haute juridiction un organe législateur partiel participant, aux côtés du chef de l'État et du Congrès, à la formation de la volonté générale. Dans ce cadre, comme dans toutes les démocraties contemporaines comprenant un mécanisme de garantie juridictionnelle de la Constitution, le développement de la justice constitutionnelle au Brésil conduit à une remise en cause de la démocratie classique de type électorale fondée sur une confusion entre la volonté du peuple et celle des gouvernants élus. Partant du postulat que le fonctionnement démocratique s'inscrit désormais dans une perspective réflexive, cette thèse propose d'analyser, à travers l'étude de la jurisprudence de la Cour suprême, les changements opérés au sein du régime démocratique brésilien afin de savoir si les modifications qui en découlent ont entraîné un dépassement du modèle démocratique traditionnel ayant donné lieu à une démocratie dite « réflexive ». / Since the adoption of the new democratic Constitution of Brazil in 1998, the Supreme Court has played an increasingly significant role within the Brazilian political system. Constantly asked to review the constitutionality of laws, the further extension of its jurisdiction in constitutional law, currently renders the High court a partial legislative body involved, along with the Head of State and Congress, in the formation of general will. In this context, as in all contemporary democracies containing a mechanism of judicial review that guarantees the supremacy of the Constitution, the development of the constitutional justice of Brazil has led to a questioning of classical electoral democracy based on a confusion between the will of the people and that of electected officials. Based on the premise that the functioning of democracy must be understood as reflexive, this thesis proposes to analyze, through the study of the jurisprudence of the Supreme Court, the changes made within the Brazilian democratic system in order to determine if the modifications have resulted in an overtaking of the traditional democratic model that has given rise to a democracy called « reflexive ».

This comparative legal analysis evaluates the issue of terrorism and how it has been dealt with respectively by the United States and Israeli Supreme Courts. Since the events of 9/11, combating terrorism has become one of the primary concerns of the US government while it is a matter that has pervaded Israeli policy since its birth as a nation-state. The analysis is centered on examining how each state‘s Supreme Court has confronted the issue with the Israeli Supreme Court using a ―Business as Usual‖ model and the US taking an ―Emergency Powers‖ approach. It is argued that terrorism is an ongoing issue that cannot be justified as an emergency and the US Court would do better in adopting Israel‘s method of adjudication in these matters. It is also suggested that the US could learn from Israel‘s policy towards torture as the US policy has largely been cruel and unsuccessful.

This comparative legal analysis evaluates the issue of terrorism and how it has been dealt with respectively by the United States and Israeli Supreme Courts. Since the events of 9/11, combating terrorism has become one of the primary concerns of the US government while it is a matter that has pervaded Israeli policy since its birth as a nation-state. The analysis is centered on examining how each state‘s Supreme Court has confronted the issue with the Israeli Supreme Court using a ―Business as Usual‖ model and the US taking an ―Emergency Powers‖ approach. It is argued that terrorism is an ongoing issue that cannot be justified as an emergency and the US Court would do better in adopting Israel‘s method of adjudication in these matters. It is also suggested that the US could learn from Israel‘s policy towards torture as the US policy has largely been cruel and unsuccessful.

This dissertation engages previous research in political science and psychology by arguing for the importance of oral arguments from a communication perspective, examining justices' rhetorical discursive interaction in oral arguments, introducing Sensemaking as a new model of judicial decision making, and discussing the legal and cultural impact of justices' rhetorical discursive interaction in Morse v. Frederick, Kennedy v. Louisiana, and District of Columbia v. Heller. In contrast to the aggregate behavioral models and longitudinal studies conducted by political scientists and psychologists, this study examines these specific cases in order to gauge each justice's individual interaction in oral argument and to determine how certain justices may have controlled the discursive flow of information within oral arguments, which in turn may have influenced the Court's decision making ability. The dissertation begins with an introduction, providing an overview of the development and study of legal rhetoric from the Greeks to present day. A review of prior literature in law, political science, and psychology displays how fields outside of communication view oral arguments and reveals where communication may provide valuable contributions to the study of Supreme Court oral arguments. Theoretical and methodological approaches adopted for the study of oral arguments are discussed. Analysis within the dissertation begins with an overview of the inherent complexity found within oral arguments and applies the previously discussed theoretical and methodological approaches to the case of Morse v. Frederick as a means of determining theoretical and methodological validity. Following analysis of Morse v. Frederick, a second case, Kennedy v. Louisiana is analyzed to determine if similar results will occur. Final consideration is given to a third case, District of Columbia v. Heller, to understand whether justices' behavior may deviate in more socially and politically sensitive cases. The dissertation concludes with suggestions for lawyers and judges based upon this study's findings and makes recommendations to scholars for further areas of research.

The presence of the Charter of Rights and Freedoms in the Constitution of Canada has transformed the historic discourse about what types of people should be appointed to the Supreme Court and the manner in which they should be selected. During the period between 1949, when the Supreme Court replaced the Judicial Committee of the Privy Council in Britain as Canada's highest appellate body, and the Charter's entrenchment in 1982, the debate centered almost exclusively on questions of federalism. Specifically, the provinces argued that in a federal country, it is inappropriate that the status and composition of the court of last resort be left to the sole discretion of the central government. The Charter, with its enumeration of a variety of social categories, has produced new demands that the Court be more socially representative. Feminist legal scholars and women’s advocacy groups claim that a more representative judiciary in general and Supreme Court in particular would perform both symbolic and instrumental functions, while ethno cultural organizations have to date concentrated almost solely upon the symbolic dimension. By contrast, claims for self-government and separate justice systems illustrate that many aboriginal leaders believe their peoples’ grievances can best be met through disengagement from, rather than further integration into, Canadian political and legal processes. The Charter's presence also has conditioned demands for are formed appointment process. Now that the Court is to serve as the arbiter of citizen-state relations, many suggest, it is improper for the state to have sole control over who is appointed to that body, and therefore a more participatory and pluralistic appointment process is advocated. Clearly, these two broadly-defined reform agendas can conflict with one another. While the provinces demand more diffuse government involvement in the appointment of judges, those concentrating on the Court's Charter responsibilities believe that the state already unduly dominates the process. However, the current debate has further, largely unexplored consequences for potential reform. The failure of most participants in the debate, be they governments, scholars or advocacy groups, to articulate coherent approaches to questions of jurisprudential theory, combined with the difficulties inherent in applying the concept of representation to a judicial body, renders their critiques less valuable as guides to reform. Worse, their inadequate treatment of these issues often results in such critics undermining the legitimacy of the institution whose reform they seek.

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

This dissertation examines the behaviour of the Supreme Court of Canada in cases involving electoral/referendum laws and the alleged violation of freedom of expression and/or the right to vote. In 2007, it declared that the judiciary should adopt "a natural attitude of deference" towards Parliament's decisions about the democratic process when determining, under section one of the Canadian Charter of Rights and Freedoms, whether the infringement is reasonable and justified. This declaration reflected institutional concerns about judicial competence to review legislative choices in this area of public policy and the democratic legitimacy of it doing so. It was made even though the Court had found laws unconstitutional in a majority of the cases that it had heard to date. Deference is often simply equated with government 'wins' in court. Such an equation ignores the effect that the decision has on judicial reasoning. It sets the standard of review the court uses when applying the Oakes test, the framework within which the section 1 analysis occurs. It also establishes the standard of proof that the Crown must meet to demonstrate that an infringement is justified. The outcome of constitutional disputes can turn on the decision about deference, pointing to a need for structure and coherence in the judiciary's approach. A review of the Court's jurisprudence shows that this need has not been met. In spite of its importance to constitutional adjudication, the analytical process by which the decision is made has garnered little attention from those who study the Charter. This dissertation seeks to fill this gap by examining deference theory and the use of deference in disputes involving the democratic process and by proposing an approach for specific use in these cases. The approach links the decision to the nature of the legislation, the nature of the right and the nature of the parliamentary discourse that preceded the enactment or amendment of the impugned law. Before setting the standards of review and proof used during the Oakes test, courts should determine whether: they have the necessary competence and legitimacy to act; the right warrants stringent constitutional protection; and parliamentarians engaged in serious deliberations that included the Charter and the reasonableness of any infringements. / Thesis (Ph.D, Political Studies) -- Queen's University, 2011-12-23 12:12:53.51

There is no abstract available for this thesis.

The specialized role of the solicitor general has been a topic of much discussion and research within the past, but the task of the solicitor as amicus curiae has been overlooked. A content analysis of Court majority opinions and their corresponding solicitor general amicus briefs for the terms of 1987, 1995, and 2003, allows us to examine the flow of language from brief to opinion, as well at its possible incorporation into legal doctrine and the creation of law. Through implementing Crawdad Text Analysis System© software, the percentage of identical language contained in each corresponding set of documents is reported in the form of a resonance score. Invitation amicus briefs, which are extremely rare and have not been present much within past literature, were also examined in the same manner. Findings show small to medium resonance scores between amicus and Court opinions, with averages between 26 to 33 percent. Invitation amicus have a higher percent of language overlap with averages from 31 to 43 percent. The way the Court implements language contained in amicus briefs shows that the Court might not be as independent as scholars such as Dahl had previously thought.