Consensus or Ambivalence? Why Court Traditions Matter

54 Pages Posted: 10 Jul 2011

Date Written: June 29, 2011

Abstract

National high courts must attempt to manage the tension between the strength of unanimity and the intellectual honesty of fragmented judgments. One obvious tool for balancing these needs is the consensual norm, which sets an informal level of institutional tolerance for publicized dissent. Here, this issue is investigated in comparative perspective using four cases: The High Court of Australia, the Supreme Court of Canada, the Law Lords division of the House of Lords in the United Kingdom, and the United States Supreme Court. Theoretical expectations for the empirical manifestations of consensus in each high court give special attention to the importance of institutional opinion writing traditions on the observable patterns of consensus. The results suggest that evidence that may support the hypothesis that a consensual norm is in operation in a majority opinion court may support the absence of a consensual norm in a seriatim court. When the normal way to communicate consensus is through a concurring opinion and concurring opinions are related to dissenting opinions, this provides evidence of ambivalence about dissent, not a norm of consensus.

Suggested Citation

Gill, Rebecca D., Consensus or Ambivalence? Why Court Traditions Matter (June 29, 2011). Available at SSRN: https://ssrn.com/abstract=1881961 or http://dx.doi.org/10.2139/ssrn.1881961

Rebecca D. Gill (Contact Author)

University of Nevada, Las Vegas ( email )

4505 S. Maryland Pkwy. Box 455029
Las Vegas, NV NV 89154
United States
7028952525 (Phone)
7028951065 (Fax)

HOME PAGE: http://www.rebeccagill.net

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