How To Win Friends and Influence People--When You're a Judicial Opinion

Michael J. Nelson, Pennsylvania State University, Department of Political Science, and Rachael K. Hinkle, University at Buffalo, have published Crafting the Law: How Opinion Content Influences Legal Development. Here is the abstract.

Why are some judicial opinions widely cited while others languish in disuse? We theorize that both efficiency and persuasiveness structure the effect an opinion has on legal development. Precedents that are both unanimous and well-grounded in the law have greater persuasive value while citation to precedents that are easier to read allows a judge to craft an opinion more efficiently. We estimate the effect of an opinion's readability, the number of footnotes it contains, its use of precedent, and whether it contains a dissenting opinion on the number of times each year the opinion is cited and its vitality in the United States Supreme Court, the precedent's own court, the precedent's sister courts, the precedent's directly subordinate courts, and all remaining state and federal courts. We thus track vertical influence both up and down the judicial hierarchy and evaluate horizontal influence both within the precedent's jurisdiction and across jurisdictional lines.

Download the article from SSRN at the link.

The Independent Judiciary: South Africa Today and England in the Seventeenth Century

David Hulme, University KwaZulu-Natal, and Stephen Allister Pete, University of KwaZulu-Natal, School of Law, have published Vox Populi? Vox Humbug! – Rising Tension between the South African Executive and Judiciary Considered in Historical Context – Part One, in volume 15 of Potchefstroom Electronic Law Journal (2012). Here is the abstract.

This article takes as its starting point a controversy which has arisen around a proposed assessment by the South African government of the decisions of the Constitutional Court, giving rise to concerns that this will constitute undue interference with the independence of the judiciary.
Part One of this article traces and analyses the developing controversy. It then compares the current clash between the South African Executive and Judiciary to a similar clash which took place in seventeenth century England, between King James I and Chief Justice Edward Coke. Such clashes appear to be fairly common, particularly in young democracies in which democratic institutions are yet to be properly consolidated.
Although not immediately apparent, the similarities between the situation which existed in seventeenth England at the time of James I and that in present-day South Africa are instructive. In tracing the development of these two clashes between the executive and judiciary, Part One of this article lays the foundation for a more in-depth comparison in Part Two.

Download the article from SSRN at the link. 

Judicial History In Medieval and Early Modern England

Edward Peter Stringham, Fayetteville State University School of Business and Economics, and Todd J. Zywicki, George Mason University School of Law, have published Rivalry and Superior Dispatch: An Analysis of Competing Courts in Medieval and Early Modern England as George Mason University Law & Economics Research Paper No. 10-57. Here is the abstract.

In most areas, economists look to competition to align incentives, but not so with courts. Many believe that competition enables plaintiff forum shopping, but Adam Smith praised rivalry among courts. This article describes the courts when the common law developed. In many areas of law, courts were monopolized and imposed decisions on unwilling participants. In other areas, however, large degrees of competition and consent were present. In many areas, local, hundred, manorial, county, ecclesiastical, law merchant, chancery, and common law courts competed for customers. When parties had a choice, courts needed to provide a forum that was ex ante value maximizing.

Download the paper from SSRN at the link.