David Erdos (University of Oxford – Centre for Socio-Legal Studies; Balliol College) has posted Judicial Culture and the Politicolegal Opportunity Structure: Explaining Bill of Rights Legal Impact in New Zealand (Law of Social Inquiry, Vol. 34, No. 1, 2009) on SSRN. Here is the abstract:
This paper argues that the cultural self-understandings of the judiciary can exert a profound effect on legal outcomes under a Bill of Rights. Utilizing the case of New Zealand, it demonstrates that confinement of expansive case law under the New Zealand Bill of Rights (NZBOR) to the criminal law and freedom of expression arenas is most significantly explained by a British-descended judicial culture that prioritizes, firstly, those civil liberty values already cognizable by the common law and, secondly, rights connected with the policing of parliamentary and legal processes. Nevertheless, judicial culture does not operate in a vacuum. Rather, the opportunity structure facing potential public interest litigants under NZBOR depends also on both their politicolegal resource set and the attitude of the political branches (legislature and executive) to the claim being forwarded.
Posted at 7:10 PM