Institutional Considerations in Locating Norms of Consensus: A Cross-National Investigation

Abstract

This paper is an investigation of the judicial norm of consensus in four national high courts: the High Court of Australia, the Supreme Court of Canada, the South African Supreme Court of Appeals (and Constitutional Court) and the House of Lords (Law Lords) in the United Kingdom. Research on consensual norms in the U.S. Supreme Court is outlined first. Then, after reviewing the methods of cointegration and suggesting an alternative to the Caldeira and Zorn (1998) procedure, this paper will explore the applicability of these methods to the location of consensual norms in different institutional contexts. Specifically, the importance of opinion-writing tradition and institutional legitimacy will be highlighted. Finally, aggregated opinion-writing data for each court will be analyzed. The results illustrate the importance of considering institutional variations when searching for evidence of consensual norms cross-nationally.