Academic journal article Melbourne University Law Review

Explaining Voting Patterns on the Latham High Court 1935-50

Academic journal article Melbourne University Law Review

Explaining Voting Patterns on the Latham High Court 1935-50

Article excerpt

[A number of studies in the United States have examined the reasons for variations in the level of agreement between judges using multiple regression. However, there are no studies of this sort for Australian courts. This study uses multiple regression analysis to explain differences in levels of agreement between the judges on the Latham High Court (1935-50) in terms of ideological differences, personality differences, legal complexity and the backgrounds of the judges. The finding of the study is that personality differences and the complexity of the legal issues in a case are the major reasons for differences in levels of agreement, while ideological differences and the socioeconomic background of the judge are not statistically significant indicators.]


   A judge is a black-robed homo sapiens. As such he is subject to the same
   general forces that condition and influence other men and their behavior.
   That is, judges, like other men, are born, develop, mature, and become
   socialized. Since all human behavior can be conceptualized as
   non-spontaneous responses to internal and external stimuli mediated by the
   properties of some ... system ... there is no ... bar to conceptualizing
   the behavior of the judge in the same fashion. (1)

A number of empirical studies of courts in the United States have examined either the reasons why judges dissent or why judges write separate concurring opinions rather than signing on to the majority opinion. These studies seek to explain consensual and non-consensual behaviour in terms of the relative importance of factors such as the social background of the judges, ideological and personal differences between the judges, and the institutional structure of the court. (2) There has, however, been little attempt to examine the relevance of findings from these studies of courts in the United States for courts in other countries that often have different institutional settings. As Atkins (3) and Tate (4) have argued on several occasions, social scientists have not been aggressive enough in examining the generalisability of most models of the judicial process that have emerged in the American context. This, in turn, has impeded attempts to build more general cross-national theories of the socio-politics of judicial decision-making.

There have been a few attempts by Blackshield, (5) Douglas (6) and Schubert (7) to analyse judicial decision-making in Australia using scalogram techniques. In the 1960s and 1970s, scalogram analysis was a popular quantitative methodology for examining the influence of background variables (such as political beliefs, religion and social upbringing) on judicial decision-making. However, there are various problems with using scalogram analysis. One of the main limitations is that it is impossible to consider the statistical significance of individual factors in explaining voting patterns. For this reason, over the last 25 years, as statistical methods have advanced, more precise statistical techniques such as multiple regression have been substituted for scalogram analysis in studies of judicial decision-making in the United States. In spite of the now widespread use of multiple regression analysis to examine differences in the level of agreement between judges in the United States, there are no studies of this sort for Australian courts.

This article examines the factors that determined voting patterns on the High Court in cases reported in the Commonwealth Law Reports during the period in which Sir John Latham was Chief Justice of the Court. This contributes to existing literature on the High Court in two ways. First, apart from the scalogram studies published in the 1960s and 1970s, there are few studies generally of the High Court which attempt to analyse decision-making from either an economic, political or sociological perspective. (8) This represents a significant deficiency in our understanding of how the High Court works on the eve of its centenary. …

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