Distinguished participants discuss 'How Judges Decide'
Apex court judges, legal academics and scholars gathered for a Foundation for Law, Justice and Society workshop at Wolfson College to discuss ‘How Judges Decide’, the day after a lecture of the same title.
Sir Stephen Sedley, former Lord Justice of Appeal and a Visiting Professor at the University of Oxford, opened the debate, which was chaired by Denis Galligan, Professor of Socio-Legal Studies at the University of Oxford and Director of the host, the Foundation for Law, Justice and Society.
Sir Stephen gave an eloquent response to the lecture but, having declared Chatham House Rules so he could be more open and frank during the discussion, the body of his presentation remains within the four walls of the discussion room.
This was followed by an informative and thought-provoking update by Professor Alan Paterson OBE, of Strathclyde University, on empirical research presented in his highly-praised 2014 book, Final Judgement.
Prof Paterson described the ever-changing Supreme Court and trends that are emerging (and disappearing) as the decision-making process continues to evolve.
He gave a fascinating insight into the process in the Supreme Court, which initially showed a greater commitment to teamwork and single judgements than had ever been practiced in the House of Lords (up from 20% to 55%).
Prof Paterson outlined the greater interaction between judges, including post-hearing conferences, more single rather than concurrent judgements and even more engagement with the judgement writer by email. He cited the example of 47 straight cases being heard without a single dissent.
He also outlined his research into the changing trends that have emerged since publication – the substantive increase in dissents and a marked increase in joint, rather than single dissents.
Dr Scot Peterson, of Balliol College, Oxford, then gave a presentation on empirical research into judicial attitudes, entitled Definitions of Attitudinalism - an Empirical Study of Judicial Behaviour.
Dr Peterson asked if precedent or attitudes were dictating outcomes or whether legal reasoning underlying the initial opinion was also consistent and/or observable.
He cited numerous cases, including two from the broad area of religious exemptions. The first, in 1963 (Sherbert vs Verner) was where the US Supreme Court overturned a lower court and employment division’s decision that a woman fired for refusing, on religious grounds, to work on Saturdays, was not entitled to employment compensation.
This historic ruling established the Sherbert Test, requiring demonstration of such a compelling interest and narrow tailoring in all Free Exercise cases where a religious person was substantially burdened by a law.
The second case cited was Employment Division vs Smith (1990) where the US Supreme Court did uphold a lower court’s decision that unemployment compensation could be denied to two drug misuse workers who were fired after themselves using the illegal drug peyote as part of their own religious rituals.
This case demonstrated the courts’ power to accommodate – or not – otherwise illegal acts as part of religious belief.
Prof Lindsay Stirton, of Sussex University, then gave a presentation entitled ‘The attitudinal model and the legal model reconsidered’. Prof Stirton began by examining the attitudinal model and British judges, looking through existing literature and academic research. He asked whether judges’ decision-making was so subtle and complex, it was possible, or not, to confer their legal ideology from their voting patterns.
Prof Stirton then deconstructed the attitudinal model, agreeing that judicial decisions reflecting judges’ personal attitudes could be given spatial representation, typically using statistical methods, to infer spatial locations from decisions.
He then argued that the interpretation of spatial locations as policy positions on a left/right or liberal/conservative scale could be substituted with a red/green light where the hypothesis is whether courts take a restrictive or permissive attitude to other state actors.
Prof Stirton gave details of his empirical study using 10 years of judgements given for or against the state and coded accordingly. He then showed diagnostic graphs in an attempt to locate judicial attitudes on a scale.
Professor Daniel Smilov, of the University of Sofia, began with a historical look at eastern European courts. In the past, he said, the higher courts were more political than ordinary courts in that the judges were appointed by other political bodies, although there was no guarantee that they would reflect their views.
The Bulgarian Constitutional Court in the 1990s, as an example, had an almost 100% correlation between the way a judge was appointed and their decision-making.
Prof Smilov went on to compare two types of approach in law and democracy: the rights-oriented approach and basis in common law and precedent, as in the US Supreme Court and the German approach, where legal codes set out the principles which the facts of the case can be set against and upon which judges must decide.
He went on to ask which approach was more political and whether the political background makes a difference in constitutional adjudication.
The workshop was enhanced by a number of invited guests around the table, who were able to join in the plenary sessions. These contributors were:
Justice Robert J Sharpe, of the Ontario Court of Appeal, who had presented the lecture the day before
Elham Fakhro, a DPhil Candidate at the Centre for Socio-Legal Studies, University of Oxford
Kent Roach, Professor of Law and Prichard-Wilson Chair of Law and Public Policy at the University of Toronto Faculty of Law
Akiko Ejima, Professor of Constitutional Law, Law School, Meiji University, Tokyo, Japan, and Visiting Scholar at Wolfson College
Katarína Šipulová, MSt student at Centre for Socio-Legal Research, University of Oxford and a PhD student at the Department of International Relations and European Studies at the Masaryk University.