Using Process Theory to Explain Judicial Decision Making.

Abstract

This article is part of an effort to place current research on the Canadian judicial process into a broader theoretical context. This effort developed first from a sense that the legal and behavioural frameworks that have dominated the explanation of judicial decision making in the United States Supreme Court obscure more than they illuminate about judicial decision making in Canada; and second from the realization that the most illuminating American studies — those that trace the process by which major cases are brought before the courts and decided — are seen as interesting but atheoretical, as journalism not science. Perhaps our theory is out of joint. And perhaps an effort to understand how American theories and research on judicial decision making can inform Canadian research may be instructive both to American judicial studies and to the work of those outside the United States who are continually tugged toward American approaches that promise liberation from traditional legal analysis.