Academic journal article Law & Society Review

The Transmission of Legal Precedent across the Australian State Supreme Courts over the Twentieth Century

Academic journal article Law & Society Review

The Transmission of Legal Precedent across the Australian State Supreme Courts over the Twentieth Century

Article excerpt

This article considers several possible determinants of the transmission of legal precedent across Australian state supreme courts over the course of the twentieth century. The study finds that that the transmission of legal precedent is higher between State supreme courts that are more physically proximate and between state supreme courts in which a majority of judges in both courts are appointed by conservative governments. The study further finds that having an intermediate trial court and providing appointments to the High Court of Australia are correlated with whether a state is a source of interstate citations or a cue sender.

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Courts have derivative rather than primary authority (Friedman et al. 1981). As a consequence, courts justify their decisions by citing existing decisions in the same area of law. Some prior decisions are binding on the court. In Australia, as in other British Commonwealth countries, these are typically the court's own previous decisions and the decisions of courts that ''stand above'' the citing court and to which the litigants could seek leave to appeal. Decisions of other courts are not strictly binding and, as such, are of mere persuasive value. For state supreme courts, one such set of courts are the supreme courts of other states, which are situated in the same tier in the court hierarchy. Citations of the previous decisions of sister courts in other states is an important dimension of judicial communication (Harris 1982). However, communication between the state supreme courts is not symmetrical. Some state supreme courts are cue senders while others are cue receivers.

In the face of complex issues and low levels of information, organizations seek simple preformed solutions (Cyert & March 1963). In searching for simple, preformed solutions to policy choices, organizations will take their cues from reliable sources (Matthews & Stimson 1975). There are several factors relevant to determining the strength of communication between sister courts. Among these, differences in state social ecology, defined as largescale social, economic, and demographic characteristics of states, affect communication between courts. If the policies of state supreme courts are adapted to socioeconomic conditions and if socioeconomic policies are reflected in intercourt communication, then communication should be greater when socioeconomic structures are similar (Harris 1985). The reputation of the cited court is also important. Courts with greater stocks of reputation capital will be regarded as more innovative and as more reliable sources of preformed solutions. Caldeira (1983, 1985) and Walker (1969, 1971) have shown that, in the United States, the relative reputation of the sender and receiver of the cue is one of the most important determinants of the flow of political information between appellate courts and legislatures, respectively.

The factors that explain the pattern of citations is important because flows of political information between sister courts can have dramatic consequences for public policies. Such information flows represent networks through which judicial innovations can be transmitted (Canon & Baum 1981) and through which the success and failure of policies can be communicated (Shapiro 1970). The basis of judicial communication can provide insights into political leadership among state courts (Caldeira 1985). States with more innovative courts also tend to have more innovative legislatures. This is because progressive state legal cultures spawn both innovative courts and legislatures. Legislators over time develop relatively well-articulated ideas about the propriety of certain jurisdictions as vantages for comparison in making new public policy (Walker 1969). Policies flow from states with more innovative courts and legislatures to states with less innovative courts and less innovative legislatures, so that the latter take their cue from the former (Harris 1985). …

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