Ch. 4 Judicial Decision-Making Flashcards
(40 cards)
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)
ALL 9 JUDGES ROLE UP
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
