Ch. 4 Judicial Decision-Making Flashcards Preview

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Flashcards in Ch. 4 Judicial Decision-Making Deck (40):

Tremblay v. Daigle

Tremblay applied to get an injunction because girl wanted an abortion. Quebec judge interpreted the fetus as a human. Daigle went and had an abortion. Case became moot. SC still looked at it and one guy was pissed but justice Justine told him to look at it from a women perspective.


Define De Novo

"as if it were new", as when an appellate court decides questions of law without reference o what the trail judge decided in a case.


Factors that influence/determine the path judges take in the importance of legal factors (2)

1) Traditional Approach - Emphasizes the importance of legal factors
2)Legal Realism - Argues other factors may play a prominent rile, including the judges own policy preferences, their personal attributes, & external factors


Decided to Take a Case: The Appellate Court's First Decesion. Two choices the courts can take

1) Appeal of leave
2) appeal of right


Discretionary Jurisdiction

Appeal by right - Courts can choose which cases they wish to decide from among the cases brought to them by litigants requesting a hearing.


Decided to Take a Case: The Appellate Court's First Decesion- What discoveries did Roy Flemming discover from the Supreme Court of Leave analysis (2)

The public importance
appeals linking the lower courts decision to provincial or federal government have interst were also more likely to be granted appeal of leave


What are the 3 important steps in a trial decision?

1) Identify relevant facts
2) Identify the relevant law
3) Combining the law & relevant facts to produce right job


What do appeal courts do? (3)

1) Review lower courts decision
2) Accept factums
3) hear oral arguments


What does the Supreme Court do?

They clarify the law of lower courts


Appeals by leave

The cases that require the courts spproval to be heard


Appeal by right

Court has to hear based on your right. Can exersice Jurisdictionary Discretion however.


The use of Panels at appeal courts. How many?

Heard typically by a panel of 3 judges to hear & decide a case. Clerks of court usually list a combination of judges.


What is En Banc?

The decision to have a case heard by a panel of justices rather, than by the Court En banc (9judges)



How many members of a panel have to hear a case at the Supreme Court Level usually?

May be heard by 5,7, and 9 but MUST BE ODD


Under what circumstances must the En Banc appear?(2)

all 9 judges must appear when...
1) Charter is at issue
2) Interverner is present


Oral Arguments & Preliminary Votes order for appellate courts

1) oral arguments
2) Preliminary vote


Oral Arguments & Preliminary Votes order for appellate courts- How does the Supreme Court judges craft an opinion (2)

1) Dissent - Justice disagrees
2) Concurring opinion - agrees with outcome but not rational (broad applications for future)


What are the determinants of judicial decision making?

Legal factors! (3)


What are the determinants of judicial decision making? What are the legal factors that contribute to judicial decisions?

Legal Factors
1) Status
2) Precedents
3) Consitutional Provision


Legal Factor that determine judicial decision
What is Stare Decisis ? (precedents) (2)

1) "Let the decision stand" A principle of judicial decision making suggesting that courts are bound by previous decisions & the decision of higher courts

2)Also means precedents


Legal Factor that determines a judicial decision. What is Ratio Decidendi? (precedents)

The legal reasoning for the decision reached by the courts. (oppsite to obider dictum)


Legal Factor that determine judicial decision- Obider Dictum (precedent)

Words found in a courts opinion that are not necessary to the decesion of the case. These worrds "said passively" are not part of binding precedent. (contrast to ratio decidendi)


What are the 8 characteristics of the Framers Intent

1) Interpretation inferred from intent of framers. Ask: "what did the goverment intent"
2) Reffered to as the "original intent: in U.S. and tjose justices, who focus on framers intent are considered "originalist"
3)Examing record surronding drafting of legislation or constititution & legislation history
4)Intent restricted to time it was passed
5) Supporters argue its natural interperation (legal positivism)
6) Allow for the removal of personal beliefs or preferences
7) Allows for decison- making democratically because decision- making operationalizes the will of those electted majority
8) Promotes stability, predictability over time for litigants and players


Opponents of Framers Intent

1) Meaning should be current & reflect todays societal values
2) Impossible to determine who the "framers" were
3) Intent of legislation is a group process not individual
4) Focus on the "intent" of an individual versus historical records produced by other allows for subjective jdugement


Persons Case (Henrreta Muir Edward V. Attorney General)

The JPC (private council) took a very broad approach to interpretting the "British North America BNA act in the person case.
Facts- PM refused to appoint women to canadian senate citing S.24 of the BNA Act that required the appointment of a 'qualified person" Interpreted person as men only lol


The living tree Doctrine - Describe

The living tree doctrine has been entrached into canadian constitutional law since the Edward v. Canada / "person case"

Sankey stated in the 1929 decision: "the british north america act planted in Canada [is] a living tree capable of growth & expension within its natural limits.

This is known as the DOCTRINE OF PROGRESS INTERPERTATION. This means that the constitution cannot be interpreted in the same way as an ordinary statue. Rather it must be read within the context of society to ensure that it adapts & reflects change.


What is the Frozen Concept?

The frozen concept reasoning runs contrary to one of the most fundamentsl principles of Canadian constitutional interpretation: Living tree doctrine


Statutory Interpretation: Legislative Intent & Textualism
Define the Cardinal Principle in Statutor Interpertation

A legislation provision should be contructed in a way that best furthers its objective...... A judge must ascertain the intent og legislature in enacting the statues.


How Should Justices Determine the Object of Statutory Person?

Through the Textual Approach


How Should Justices Determine the Object of Statutory Person? Define Textual Approach

The Textual Approach suggest that text in the provision is authoritative - meaning the only realible intent of legislation is the text itself.


Name the 3 characters of the textual approach

1) Plain/ clear meaning - justices interpertation of text is towards "ordinary sense"
2) Golden Rule - When text is obsurd/unjust use the golden rule to modify meaning.
3) Mischief rule - If the text is ambigious, the mischief rule allowss outside material to be introduced to guide the choice of the proper meaning


Strategic Model of Decision- Making
Name the two strategies

1) Attitudinal Model
2) Strategic Model


Strategic Model of Decision- Making
Describe the Attitudinal Model

The attitudinal model suggest that judicial outcomes are the product of the ideology of individual justices & the results of attidunial responses to specific case facts that can be triggered in different areas of law.


Strategic Model of Decision- Making
Describe the Strategic Model

Strategic justices will write decision as close to their ideal ideiology as possible without provoking the executive & legislative to overturn. It's basically modifying position to increase likelyhood for decision to be enforced


Strategic Model of Decision-Making
How does Role Orientation influence in judicial decision manifest itself (2)?

1) Activism orientated
2) Restrain orientated


Strategic Model of Decision-Making
How does Role Orientation influence in judicial decision manifest itself (2). Describe Activism

- Asseting an independent position in deciding cases, to review the action of the other branches vigoursly, to strike down acts the justice believes are unconstitutionaly
- Imposing far reaching remedies


Strategic Model of Decision-Making
How does Role Orientation influence in judicial decision manifest itself (2)? Describe Retrain orientated

Prefers to defer to the legislature when interpreting the legislatures outcome

Rejects broad remedies, only correcting when absolutely neccesary.


Is adjudicator of disputes, restraint or activist orientated?

Restraint orientated


Is policy-making-orientation, restraint oe activist orientated

activist orientated


Describe the Personal Attributes Model

The personal attributes model argues that judges career experience, education, partisan affiliation, social background, and other factors shape adjustices attitudes and those attitudes -- the mebbeded factors can influence that justices decision