1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l

Taking Rights Seriously

Social capital - in the form of general trust and strong civil norms that call for cooperation when large-scale collective action is needed - can improve government performance in three ways: 1) It can broaden government accountability, making government responsive to citizens at large, rather than to narrow interests. 2) It can facilitate agreement where political preferences are polarized. 3) It is associated with greater innovation when policymakers face new challenges. Consistent with these arguments, Putnam (1993) has shown that regional governments in the more trusting, more civic-minded northern, and central parts of Italy provide public services more effectively than do those in the less trusting, less civic-minded southern regions. Using cross-country data, La Porta and others (1997), and Knack and Keefer (1997), obtained findings consistent with Putnam's evidence. For samples of about thirty nations (represented in the World Value Surveys), they found that societies with greater trust tended to have governments that performed significantly better. The authors used survey measures of citizen confidence in government as well as subjective indicators of bureaucratic inefficiency. The author further analyzes links between social capital and government performance, using data for the United States. In states with more social capital (as measured by an index of trust, volunteering, and census response), government performance is rated higher, based on ratings constructed by the Government Performance Project. This result is highly robust to including a variety of control variables, considering the possibility of influential outlying values, treating the performance ratings as ordinal, rather than cardinal, and correcting for possible endogeneity.

https://papers.ssrn.com/sol3/Delivery.cfm/1314.pdf?abstractid=632574&mirid=1

Social Capital and the Quality of Government: Evidence from the United States

Social capital - in the form of general trust and strong civi norms that call for cooperation when large-scale collective action is needed - can improve government performance in three ways: 1) It can broaden government accountability, making government responsive to citizens at large, rather than to narrow interests. 2) It can facilitate agreement where political preferences are polarized. 3) It is associated with greater innovation when policymakers face new challenges. Consistent with these arguments, Putnam (1993) has shown that regional governments in the more trusting, more civic-minded northern, and central parts of Italy provide public services more effectively than do those in the less trusting, less civic-minded southern regions. Using cross-country data, La Porta and others (1997), and Knack and Keefer (1997), obtained findings consistent with Putnam's evidence. For samples of about thirty nations (represented in the World Value Surveys), they found that societies with greater trust tended to have governments that performed significantly better. The authors used survey measures of citizen confidence in government as well as subjective indicators of bureaucratic inefficiency. The author further analyzes links between social capital and government performance, using data for the United States. In states with more social capital (as measured by an index of trust, volunteering, and census response), government performance is rated higher, based on ratings constructed by the Government Performance Project. This result is highly robust to including a variety of control variables, considering the possibility of influential outlying values, treating the performance ratings as ordinal, rather than cardinal, and correcting for possible endogeneity.

Social capital and the quality of Government : evidence from the U.S. States

Participation as amicus curiae has long been an important tactic of organized interests in litigation before the U.S. Supreme Court. We analyze amicus curiae briefs filed before the decision on certiorari and assess their impact on the Court's selection of a plenary docket. We hypothesize that one or more briefs advocating or opposing certiorari increase the likelihood of its being granted. We test this hypothesis using data from the United States Reports and Briefs and Records of the United States Supreme Court for the 1982 term. The statistical analysis demonstrates that the presence of amicus curiae briefs filed prior to the decision on certiorari significantly and positively increases the chances of the justices' binding of a case over for full treatment—even after we take into account the full array of variables other scholars have hypothesized or shown to be substantial influences on the decision to grant or deny.

https://www.jstor.org/stable/pdfplus/1961752.pdf

Organized Interests and Agenda Setting in the U.S. Supreme Court

We examine Supreme Court-circuit court interactions from a principal-agent perspective, employing a fact pattern analysis to determine the extent to which circuit courts follow their own policy preferences versus the extent that they follow the policy dictates of the Supreme Court. We then examine whether monitoring by the Supreme Court can affect those interactions. We find that the courts of appeals are highly responsive to the changing search and seizure policies of the Supreme Court. Nevertheless, the strong independent effect of the ideologies of the judges gives evidence that judges do find opportunities to "shirk" to satisfy their own policy interests. We also find strong evidence that litigants play an active role in influencing monitoring by the Supreme Court.

http://www.jstor.org/stable/pdfplus/2111602.pdf

The Hierarchy of Justice: Testing a Principal-Agent Model of Supreme Court-Circuit Court Interactions

Widely praised in its first edition fourteen years ago and now thoroughly updated in a new edition, "Judicial Policies" assesses the implementation, impact, and consequences of judicial rulings. It systematically explores the effects of judicial decisions on the people who carry them out, and the individuals and organizations who feel their impact. This second edition discusses and responds to the significant research that has been published since the first edition appeared. Arguing that judicial policies in the United States are substantially influenced by how the courts and other political actors respond, authors Canon and Johnson employ a heuristic model of different populations and their responses to judicial decisions as a means of: explaining the implementation of judicial policies as a political process, examining the events that usually follow judicial decisions, and organizing the literature in the field. The concluding chapter addresses the important question of whether the judiciary actually makes a difference in the American political system. Canon and Johnson delineate examples where the courts have clearly had an impact and those where they have had little influence.

Judicial Policies : Implementation and Impact

Political Culture in American States: Elazar's Formulation Examined

A solution to get the problem off, have you found it? Really? What kind of solution do you resolve the problem? From what sources? Well, there are so many questions that we utter every day. No matter how you will get the solution, it will mean better. You can take the reference from some books. And the the american courts a critical assessment is one book that we really recommend you to read, to get more solutions in solving this problem.

The American courts : a critical assessment

Law, Politics, and Judicial Decision Making: Lower Federal Court Uses of Supreme Court Decisions

This article tests the widely assumed proposition that the greater the original support for a decision at the Supreme Court level, the greater the subsequent compliance with that decision by the lower courts. Five indicators of support were used in the analysis-size of the voting majority, size of the opinion majority, number of dissenting justices, number of dissenting opinions, and author of the majority opinion. Indexes of compliance, evasion, and discord based on Shepard's Citations listings of lower court reactions to 1961-1963 Supreme Court decisions from 1963 to 1967 were used as measures of lower court responses to Supreme Court decisions. The analysis failed to support any of the hypothesized relationships.

Charles A. Johnson

Papers

Judicial Policies : Implementation and Impact

Political Culture in American States: Elazar's Formulation Examined

The American courts : a critical assessment

Law, Politics, and Judicial Decision Making: Lower Federal Court Uses of Supreme Court Decisions

Lower Court Reactions to Supreme Court Decisions: A Quantitative Examination