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COMBINING COMMITMENT AND COOPERATION

One may then be able to situate the high courts of different countries relative to each other on Figure 1-1 based on the commitment and cooperation of the judges on each court. We call this the “CC Space" Further, the CC Space in Figure 1-1 can be divided into four types of courts by identifying how committed and cooperative they are: the attitudinal court, the positivist court, the strategic court, and the deliberative court.

An attitudinal court consists of judges that are both politicized and independent. Judges on an attitudinal court look to their personal views on the outcome when deciding the appeal. Each justice places little or no value on cooperating with other justices and does not sign onto judgments by another judge unless there is a high level of ideological alignment or agreement with that judge. They do not even seek to cooperate or align with other judges to fulfill their personal preferences about the outcome. In the event of a disagreement between judges, each writes his or her own opinion rather than attempt to persuade or compromise with colleagues. These courts are therefore likely to have multiple opinions on each appeal, either through concurrences (separate opinions agreeing in the result but for different reasons) or dissents.[1]

On a positivist court, judges are independent and ground their decisions in legal considerations. As on an attitudinal court, judges on a positivist court place little value on attempting to reach agreement with their colleagues. However, unlike the attitudinal court, judges decide independently based on the legal merits of the appeal rather than on their own personal views of the best outcome. They may view cooperation with other judges as compromise, raising the risk of not deciding on the “true” legal merits. Judges on a positivist court may disagree less than judges on an attitudinal court if the judges differ more in personal views than in independent assessments of the law.

A strategic court is composed of judges who are politicized but also collegial. The judges are strategic in that they seek to advance their personal views and preferences, which may require them to cooperate with other judges.[2] They may deliberate together in an attempt to understand and use each other’s personal views to produce either an agreed result or well-reasoned, sharply divided opinions. Alternatively, the judges may trade votes on cases they care less about to achieve their own preferred results in other cases, reflecting a decisionmaking process that resembles that of a legislature. The judges on a strategic court agree more (have lower rates of concurrences and dissents) than those on an attitudinal court. However, there may still be dissents and concurrences if the judges are unwilling to trade-off outcomes because they have very strong differences of opinions about outcomes of appeals.

Finally, on a deliberative court, judges try to find the best answer based on the law and are collegial in the search. They focus on the legal merits of the case and yet are open to discussing and working with their colleagues on the outcome and reasoning. These judges dissent less than positivist courts and produce fewer independent opinions. At best, then, deliberative courts have a high level of agreement and produce decisions with a high quality of legal reasoning resulting from a deliberative and inclusive process. The risk is that the drive to cooperation and agreement may be so strong that it undermines the benefits of disagreement, such as where dissents point toward future directions in the development of the law.

  • [1] The increase in the number of opinions would in this case occur despite such factors asworkload or leisure preference of the judges, which may increase the opportunity cost of writing a separate judgment. See Lee Epstein & Jack Knight, The Choices Justices Make (Washington,DC: CQ Press, 1998) [Epstein & Knight, Choices]; and Tracey George & Albert Yoon, “ChiefJustices: The Limits of Attitudinal Theory and the Possible Paradox of Managerial Judging”(2008) 61 Vanderbilt Law Review 1.
  • [2] For discussions of the strategic model of judicial decision-making, see e.g. Melinda GannHall & Paul Brace, “Order in the Courts: A Neo-institutional Approach to Judicial Consensus”(1989) 42 Western Political Quarterly 391; Epstein & Knight, Choices, supra note 8.
 
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