Abstract

CASTRO-MONTERO, José Luis  and  DURAN, Marco Proaño. Legal argumentation and judicial decision making: Empirical evidence from Ecuador. Rev. Derecho Estado [online]. 2018, n.41, pp.37-65. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n41.02.

Legal scholars often analyze argumentation from a formal perspective, mostly applied to judicial decision making. This article presents an alternative approach, as it empirically evaluates the quality of petitioners' legal argumentation within the context of abstract constitutional review proceedings. The quality of legal argumentation is herein defined as the ability of the petitioner to (i) identify the challenged norm and the potentially infringed constitutional norm, (ii) present clear and coherent arguments, and (iii) justify its arguments upon legal sources, such as jurisprudential precedents or legal doctrine. Original data on forty lawsuits presented before the Ecuadorian constitutional court between 2008 and 2016 is used to test whether legal argumentation determines the outcome of a decision. A novel measure of the overall quality of argumentation and strength of cases brought before the Ecuadorian constitutional court by both public and private parties is also developed in the form of an expert survey. The main findings suggest that plaintiffs' legal argumentation quality does not determine the outcome of the final decision of the Ecuadorian constitutional court, but rather the type of plaintiff (public or private) does.

Keywords : Legal argumentation; constitutional review; constitutional court; Ecuador.

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