American Bankruptcy Institute Law Review 17 Am. Bankr. Inst. L. Rev., No. 1, Spring, 2009. Boston College Law Review 50 B.C. L. Rev., No. 3, May, 2009. Boston University Public Interest Law Journal 18 B.U. Pub. Int. L.J., No. 2, Spring, 2009. Cardozo Journal of Conflict Resolution 10 Cardozo J. Conflict Resol., No. 2, Spring, 2009. Cardozo Public Law, Policy, & Ethics Journal 7 Cardozo Pub. L. Pol’y & Ethics J., No. 3, Summer, 2009. Chicago Journal of International Law 10 Chi. J. Int’l L., No. 1, Summer, 2009. Colorado Journal of International Environmental Law and Policy 20 Colo. J. Int’l Envtl. L. & Pol’y, No. 2, Winter, 2009. Columbia Journal of Law & the Arts 32 Colum. J.L. & Arts, No. 3, Spring, 2009. Connecticut Public Interest Law Journal 8 Conn. Pub. Int. L.J., No. 2, Spring-Summer, 2009. Cornell Journal of Law and Public Policy 18 Cornell J.L. & Pub. Pol’y, No. 1, Fall, 2008. Cornell Law Review 94 Cornell L. Rev., No. 5, July, 2009. Creighton Law Review 42 Creighton L. Rev., No. 3, April, 2009. Criminal Law Forum 20 Crim. L. Forum, Nos. 2-3, Pp. 173-394, 2009. Delaware Journal of Corporate Law 34 Del. J. Corp. L., No. 2, Pp. 433-754, 2009. Environmental Law Reporter News & Analysis 39 Envtl. L. Rep. News & Analysis, No. 7, July, 2009. European Journal of International Law 20 Eur. J. Int’l L., No. 2, April, 2009. Family Law Quarterly 43 Fam. L.Q., No. 1, Spring, 2009. Georgetown Journal of International Law 40 Geo. J. Int’l L., No. 3, Spring, 2009. Georgetown Journal of Legal Ethics 22 Geo. J. Legal Ethics, No. 2, Spring, 2009. Golden Gate University Law Review 39 Golden Gate U. L. Rev., No. 2, Winter, 2009. Harvard Environmental Law Review 33 Harv. Envtl. L. Rev., No. 2, Pp. 297-608, 2009. International Review of Law and Economics 29 Int’l Rev. L. & Econ., No. 1, March, 2009. Journal of Environmental Law and Litigation 24 J. Envtl. L. & Litig., No. 1, Pp. 1-201, 2009. Journal of Legislation 34 J. Legis., No. 1, Pp. 1-98, 2008. Journal of Technology Law & Policy 14 J. Tech. L. & Pol’y, No. 1, June, 2009. Labor Lawyer 24 Lab. Law., No. 3, Winter/Spring, 2009. Michigan Journal of International Law 30 Mich. J. Int’l L., No. 3, Spring, 2009. New Criminal Law Review 12 New Crim. L. Rev., No. 2, Spring, 2009. Northern Kentucky Law Review 36 N. Ky. L. Rev., No. 4, Pp. 445-654, 2009. Ohio Northern University Law Review 35 Ohio N.U. L. Rev., No. 2, Pp. 445-886, 2009. Pace Law Review 29 Pace L. Rev., No. 3, Spring, 2009. Quinnipiac Health Law Journal 12 Quinnipiac Health L.J., No. 2, Pp. 209-332, 2008-2009. Real Property, Trust and Estate Law Journal 44 Real Prop. Tr. & Est. L.J., No. 1, Spring, 2009. Rutgers Race and the Law Review 10 Rutgers Race & L. Rev., No. 2, Pp. 441-629, 2009. San Diego Law Review 46 San Diego L. Rev., No. 2, Spring, 2009. Seton Hall Law Review 39 Seton Hall L. Rev., No. 3, Pp. 725-1102, 2009. Southern California Interdisciplinary Law Journal 18 S. Cal. Interdisc. L.J., No. 3, Spring, 2009. Stanford Environmental Law Journal 28 Stan. Envtl. L.J., No. 3, July, 2009. Tulsa Law Review 44 Tulsa L. Rev., No. 2, Winter, 2008. UMKC Law Review 77 UMKC L. Rev., No. 4, Summer, 2009. Washburn Law Journal 48 Washburn L.J., No. 3, Spring, 2009. Washington University Global Studies Law Review 8 Wash. U. Global Stud. L. Rev., No. 3, Pp.451-617, 2009. Washington University Journal of Law & Policy 29 Wash. U. J.L. & Pol’y, Pp. 1-401, 2009. Washington University Law Review 86 Wash. U. L. Rev., No. 6, Pp. 1273-1521, 2009. William Mitchell Law Review 35 Wm. Mitchell L. Rev., No. 4, Pp. 1235-1609, 2009. Yale Journal of International Law 34 Yale J. Int’l L., No. 2, Summer, 2009. Yale Journal on Regulation 26 Yale J. on Reg., No. 2, Summer, 2009.

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Current index to legal periodicals

Research on the legitimacy of the US Supreme Court has blossomed of late, with scholars investigating many different hypotheses derived from legitimacy theory. As the theory has been pushed, a number of new controversies have emerged. Here, we identify four such debates: (a) whether the Court's legitimacy rests on satisfaction with its performance, (b) whether support for the Supreme Court reflects the polarization of politics in the contemporary United States, (c) whether the Court's legitimacy requires belief in the “myth of legality”, and (d) whether judicial decisions can change public opinion. Our analysis of these issues generally concludes that the Supreme Court's legitimacy is reasonably secure, in part because individual rulings have little impact on support for the institution, in part because the Court has access to powerful and influential symbols of judicial authority, and in part because the current Supreme Court issues roughly equal numbers of conservative and liberal decisions.

/pdf/the-legitimacy-of-the-us-supreme-court-conventional-wisdoms-24d4mapk8b.pdf

The Legitimacy of the US Supreme Court: Conventional Wisdoms and Recent Challenges Thereto

This text explores how jurors try to do justice in the wake of accidents, and reveals much about the overall psychology of jury decision-making. Neal Feigenson, a professor of law, offers a framework for how jurors deploy their common sense, together with the law and the facts, to produce what the author refers to as "total justice". Feigenson analyzes both the words lawyers use to help jurors assign blame and the words jurors themselves use as they make decisions. With a minimal use of jargon, he summarizes the leading research from social and cognitive psychology to show how everyday habits of thought and feeling inform jurors' decisions. Contrary to common stereotypes about jurors, jurors integrate their thoughts and feelings to reach decisions that are usually correct enough by legal standards, although not always for what the law would consider the right reasons. This text provides a nuanced appreciation of the civil jury, with examples and in-depth analysis of how jurors help make tort law.

Legal Blame: How Jurors Think and Talk about Accidents

This article describes and critiques the judicial reasoning of Indonesia’s Supreme Court, through the lens of the Court’s reviews of subnational laws during 2011–17. The resulting picture is a negative one. Most of the Court’s decisions were critically flawed, with either very little or no reasoning, and inconsistencies with past decisions. Worse, the Court appears keen to avoid hearing important cases that raise difficult political issues, even though the law governing those issues is clear and easy to apply. These inadequacies are perpetuated by genuine uncertainty about the precise jurisdiction of the Court in judicial review cases. However, the Court has not sought to resolve this uncertainty. Indeed, these decisions appear to reflect a court paying little regard to judicial transparency and accountability, and unwilling or unable to act as an effective check on government power.

/pdf/judicial-reasoning-and-review-in-the-indonesian-supreme-50i91zl9d0.pdf

Judicial Reasoning and Review in the Indonesian Supreme Court

Is Supreme Court legitimacy affected by the way justices explain their decisions to the public? Existing work shows a link between legitimacy and case outcomes but often overlooks the impact of opinion content. Using a novel experimental design, the author measures the effect of three different types of judicial arguments on public support for the Court. The results suggest that the rationales used by justices in their opinions can affect institutional legitimacy, but to a lesser degree than conventional wisdom suggests. Taken together with other recent legitimacy research, these findings have important implications and set the stage for follow-up research.

Do Reasons Matter? The Impact of Opinion Content on Supreme Court Legitimacy:

I. IntroductionIn A Political Court, Judge Richard Posner dismisses the reasoning of many Supreme Court opinions as "professional varnish"1 and a "mask,"2 behind which the real work of deciding cases takes place. Like Judge Posner, many readers of the Court's decisions believe we can distinguish between two kinds of reasons: (a) those that do the work of deciding the cases, and (b) those that are put forward for the purpose of creating an impression of judicial deference to text and history.3 These are the work horses and the show horses of constitutional argument. The work horses consist largely of value choices between competing political and social goals, while the show horses include, at least some of the time,4 the "intent of the framers," precedent, and the application of multi-part tests. Scholars have accumulated considerable evidence of the existence of show horses: The Court advances historical arguments when doing so suits the Court's purpose and ignores them when they are inconvenient.5 It cites precedents to support its rulings, yet acknowledges that precedent is a weak constraint in constitutional cases.6 Its formulae amount to "an attempt to achieve one effect: that the words, once in place, will do the work as the judges watch, recording the score."7 Meanwhile, the majority's political and social aims may drive the outcomes of hard cases even when they receive comparatively little attention in the opinions.8 Commentators give short shrift to the show horses. They argue over whether a given argument falls into the show horse or the work horse category, lambaste the show horses, and then set them aside in order to pursue serious constitutional analysis.9 A widelyshared premise of constitutional scholarship is that the Court ought to give true rather than false reasons.This Article rejects that premise. My thesis is that the Court's opinions may serve worthy goals and earn our respect even if other reasons account for outcomes. To borrow Judge Posner's metaphor, I believe that the Court's professional varnish and its masks deserve more scholarly attention and a kinder assessment than they have received. Deployed with skill and prudence, false (but widely acceptable) reasons help maintain the appearance that the Court is in step with the broad public, to whom it is ultimately accountable. Adept appearance management can succeed even when segments of the public differ sharply among themselves as to the norms of constitutional adjudication. In this way, putting an attractive face on its rulings may serve the Court's vital institutional need for public confidence. Appreciating the role of appearance management in ensuring the Court's institutional effectiveness enhances our understanding of the opinions and opens the door to a whole new set of criteria for evaluating them. In making these points, I borrow Richard Fallon's illuminating distinction between "legal legitimacy" and "sociological legitimacy."10 Legal legitimacy requires that an opinion candidly state the reasons for the outcome.11 Sociological legitimacy is achieved by an opinion that secures public acceptance of the Court's rulings.12 Badly-reasoned opinions may lack legal legitimacy, yet succeed in winning sociological legitimacy. There may be a difference between reasons that will please the Court's audience and those that do the work of deciding cases.As the term "sociological legitimacy" signals, this Article treats the Justices as social actors who have a common interest in the Court's success as an institution. Like anyone who does not live on a desert island, the Court, in order to achieve its goals, has to be concerned with what other people think of it.13 In any given case, and especially in the most prominent ones, the Court must take care to behave in a way that inspires or maintains public confidence, even as it insists on a large role for itself. In the course of resolving a case, the Court needs to make not only legal decisions, but also strategic choices as to the contents of the opinion. …

/pdf/sociological-legitimacy-in-supreme-court-opinions-2z3o3y8nqv.pdf

"Sociological Legitimacy" in Supreme Court Opinions

i. FORM AND FUNCTION IN THE AMERICAN OPINION ........................ 85 A. Aims of the Reasoned Opinion .................................. 86 1. Guidance ............................................ 86 2. Persuasion .......................................... 87 3. Judicial Accountability ................................... 88 4. Legitimacy .......................................... 89 B. A Note on the Importance of Candor ............................. 91

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French and American Judicial Opinions

Whether the Supreme Court should look to international law in deciding constitutional issues depends largely on what is meant by "looking to" international law. Some international norms are legally binding on American courts, either because we have agreed to follow them by adopting treaties or because they form part of the federal common law. I certainly agree that the Supreme Court, like the rest of us, ought to obey these aspects of international law. But the role of international norms in American courts has recently attracted attention for a different reason. In Lawrence v. Texas the Supreme Court, overruling Bowers v. Hardwick, struck down a statute that prohibited anal and oral sex between members of the same sex, on the ground that the statute violated the due process clause of the Fourteenth Amendment. In the course of the opinion, the Court cited a number of authorities, including a ruling by the European Court of Human Rights, in Dudgeon v. United Kingdom, that had invalidated similar laws. Other recent Supreme Court cases have made reference to decisions by international tribunals and other international norms, and Supreme Court justices, in their extracurricular writings, have championed the practice. Since nobody asserts that these rulings are legally binding on American courts, the Court's recent practice raises the question of why we should pay any attention to them.

/pdf/international-norms-in-constitutional-law-3ojx09sku8.pdf

International Norms in Constitutional Law

/pdf/the-governmental-proprietary-distinction-in-constitutional-58899jj0me.pdf

The Governmental-Proprietary Distinction in Constitutional Law

/pdf/scientific-policymaking-and-the-torts-revolution-the-revenge-4h4v3ean54.pdf

Michael L. Wells

Papers

"Sociological Legitimacy" in Supreme Court Opinions

French and American Judicial Opinions

International Norms in Constitutional Law

The Governmental-Proprietary Distinction in Constitutional Law

Scientific Policymaking and the Torts Revolution: The Revenge of the Ordinary Observer