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Vol 25 No 2 Feb/March 2020

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Values in the Supreme Court: Decisions, Division and Diversity

ISBN13: 9781509921850
Published: February 2020
Publisher: Hart Publishing
Country of Publication: UK
Format: Hardback
Price: £60.00

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This book draws on theories and techniques from psychology to understand the role of values in Supreme Court decision making. It centres on a novel method of content analysis of judgments to reveal the values that underpin decision making and discusses the potential implications this may have for developments in the law and the appointment of the judiciary.

The book examines those cases which divide judicial opinion, Dworkin’s hard cases “in which the result is not clearly dictated by statute or precedent”. In hard cases there is real uncertainty about the legal rules that should be applied and factors beyond the traditional legal sources may influence the decision making. It is in these uncertain cases, where legal developments can rest on a single judicial decision, that values are revealed in the judgments.

Constitutional and Administrative Law
1. A Theoretical Framework for a Role of Values in Judicial Decisions
I. Judicial Discretion and the Exercise of Choice in Uncertain Decisions
II. Defining Values
III. A Foundation for the Role of Values, Uncertainty and Intuition in Judicial Decision Making
IV. Evidence of Instinct and Values in the Supreme Court
V. Constraint on the Influence of Values
2. Finding Values in Legal Judgments: A Model and a Method
I. A Psychological Model of Personal Values
II. A Note on the Selection of Judgments: Hard Cases in the UK Supreme Court
III. A Method to Identify Values in Legal Judgments
IV. Values in Legal Judgments – Examples
V. Limits of the Coding Scheme
3. The Value:Decision Paradigm: Validating the Method
I. The Case – R (on the Application of E) v JFS Governing Body [2009]
II. Are the Values Affirmed by Opposing Decisions Reflective of Intrinsic Personal Values? The Experiment
4. Does the Value:Decision Paradigm Apply to all Indeterminate Cases? Division, Dissent and Judicial Values
I. Defining Dissent and Division
II. Division in the UK Supreme Court
III. What Motivates Dissent?
IV. The Psychology of Dissent
V. Case Selection and Analysis
VI. Values in Cases which Divided Judicial Opinion
VII. Values, Division and the Subject Matter of the Case
VIII. The Value:Decision Paradigm in Cases with a Single Dissent
IX. Concurring Judgments in Consensus Decisions – Another Form of Disagreement
X. Division, Dissent, Uncertainty and Values
5. Values and Individual Decision Making: Diversity of Values and Consistency in Decisions
I. The Role of the Individual in Judicial Decisions
II. Individual Difference – Tacit Diversity in Judicial Decision Making
III. Diversity of Values in the Supreme Court
IV. Values Priorities Reflected in Judicial Decisions
V. The Value:Decision Paradigm in Individual Legal Decision Making
VI. Individual Values and Decisions
6. Values and Panel Decision Making: Shared Value Priorities and Agreement in Hard Cases
I. Agreement in the UK Supreme Court
II. Calculating Agreement in the Supreme Court
III. Shared Judicial Value Priorities
IV. Values and Agreement in Cases which Divide Judicial Opinion
V. Values and Agreement in the Supreme Court
7. The Role of Values in Judicial Decision Making in the UK Supreme Court
I. Transparency
II. Judicial Diversity
III. Judicial Appointment