Showing papers on "Judicial opinion published in 2000"

Crafting Law on the Supreme Court: The Collegial Game

Abstract: 1. Introduction 2. Selecting an author: assigning the majority opinion 3. A strategic response to draft opinions 4. The decision to accommodate 5. The politics of coalition formation 6. Conclusion.

Judicial Independence: The Politics of the Supreme Court in Mexico

Abstract: This article examines the role of the Supreme Court in the development of the Mexican political system. The judiciary provided an important source of regime legitimation, as it allowed for the consolidation of a state of legality and a claim to constitutional rule of law, at least in discourse. However, the judiciary was in effect politically subordinated to the logic of dominant party rule through both specific constitutional reforms since 1917 that weakened the possibility of judicial independence and a politics of institutional and political co-optation. The constitutional reform of 1994 has significantly altered the nature of the relationship between the executive and the Supreme Court.

An Attitudinal Theory of Expressive Law

Abstract: Economic analysis typically assumes that law changes the expected cost of behavior, and thereby changes behavior, only because it imposes legal sanctions. Another possibility is that law operates "expressively" - that it changes behavior by what it says rather than what it does. This article proposes an informal model to explain how law could have such an expressive effect. In the model, law changes the expected cost of behavior by signaling attitudes of approval or disapproval. The model assumes (1) that individuals value approval either intrinsically or instrumentally, (2) that individuals have only imperfect information about what others approve, and (3) that certain identifiable categories of legislation are positively correlated with diffuse public opinion. As a result, these categories of legislation cause individuals to update their prior beliefs about the approval pattern, and this updated belief produces behavioral change. As an example, anti-smoking legislation signals greater disapproval of public smoking, which raises the expected costs from public smoking, thereby decreasing such smoking independent of the legal sanctions. The article explores several implications of this attitudinal model of expressive law. One is that local ordinances have a greater expressive effect than state or federal laws, because most approval and disapproval occurs locally. Second, judicial decisions have an expressive effect because they are positively correlated with diffuse public opinion. Third, parties wishing to influence the behavior of others will invest in capturing the state's expressive power, with the result that there is substantial political conflict over what appear to be matters of pure symbolism.

Common Law, Common Ground, and Jefferson's Principle

Abstract: Thomas Jefferson's famous argument that "the earth belongs to the living" - and therefore no generation has the right to rule another - is a standing challenge to anyone who believes that written constitutions (or, in many instances, statutes) are binding. Most answers to Jefferson's challenge rely, in one way or another, on a claim that being an American means owing an obligation of some kind to previous generations. These accounts should not be disparaged, but in a large and heterogeneous nation the obligation to adhere to decisions made decades or centuries ago should rest on something less contested. Our written Constitution performs two functions that justify adherence to it, without relying on a contested conception of American citizenship. First, the text, and the judgments of those who wrote and ratified it, are a source of precedents, roughly on a par with certain judicial decisions. Second, the text provides what game theory calls a "focal point": it establishes common ground on questions (such as the length of a President's term) that need to be settled one way or another. There are no other justifications, beyond these two, for requiring adherence to the text of a document adopted long ago. But this account helps explain current practices that might otherwise seem unjustifiable: an emphasis on the words of the text often without regard to the intentions of the drafters, as evidenced, for example, in the debate over the incorporation of the Bill of Rights; the highly selective use of historical sources (what is often called "law office history"); the fact that the text of the Constitution matters most for issues that are the least important; and popular attitudes about constitutional amendment.

Once More Unto the Breach: PostBehavioralist Approaches to Judicial Politics

Abstract: The field of "public law" in political science is somewhat ill defined. Its practitioners range from political theorists interested in the normative underpinnings of the law to statisticians interested in the correlates of judicial voting. The output of the Supreme Court, however, looms large on the landscape for many approaches to the field. In the first decades of the century, political scientists were unlikely to focus specifically on the explanations for the Court's decisions but were more likely to be interested in a broad range of issues related to the courts and the law. Since the "behavioral revolution" that swept the social sciences in the 1950s, however, judicial decision making has been at the core of the field. Over the past several decades, substantial progress has been made in identifying patterns of judicial voting behavior and the determinants of Court decisions. That progress, though real, has also been narrow. The scholarly focus has been on individual justices and how they cast their votes, leaving a great deal of the judicial process relatively unexplored.

An Attitudinal Theory of Expressive Law

Abstract: Economic analysis typically assumes that law changes the expected cost of behavior, and thereby changes behavior, only because it imposes legal sanctions. Another possibility is that law operates "expressively" - that it changes behavior by what it says rather than what it does. This article proposes an informal model to explain how law could have such an expressive effect. In the model, law changes the expected cost of behavior by signaling attitudes of approval or disapproval. The model assumes (1) that individuals value approval either intrinsically or instrumentally, (2) that individuals have only imperfect information about what others approve, and (3) that certain identifiable categories of legislation are positively correlated with diffuse public opinion. As a result, these categories of legislation cause individuals to update their prior beliefs about the approval pattern, and this updated belief produces behavioral change. As an example, anti-smoking legislation signals greater disapproval of public smoking, which raises the expected costs from public smoking, thereby decreasing such smoking independent of the legal sanctions. The article explores several implications of this attitudinal model of expressive law. One is that local ordinances have a greater expressive effect than state or federal laws, because most approval and disapproval occurs locally. Second, judicial decisions have an expressive effect because they are positively correlated with diffuse public opinion. Third, parties wishing to influence the behavior of others will invest in capturing the state's expressive power, with the result that there is substantial political conflict over what appear to be matters of pure symbolism.

‘Condemn a Little More, Understand a Little Less’: The Political Context and Rights’ Implications of the Domestic and European Rulings in the Venables-Thompson Case

Abstract: In 1993 Jon Venables and Robert Thompson were found guilty of the abduction and murder of two-year-old James Bulger Aged ten at the time of the offence, the children were tried in an adult court before a judge and jury amidst a blaze of publicity They were named by the trial judge and sentenced to detention at Her Majesty's Pleasure [HMp] The Home Secretary set a minimum tariff of fifteen years imprisonment In December 1999 the European Court of Human Rights held that, in the conduct of the trial and the fixing of the tariff, the United Kingdom government was responsible for violating the European Convention on Human Rights This article maps how the case became a watershed in youth justice procedure and practice influencing Labour’s proposals for reform and the 1998 Crime and Disorder Act Examining the progression of appeals through the domestic and European courts, it explores the dichotomous philosophies separating the United Kingdom and European approaches to the age of criminal responsibility, the prosecution and punishment of children, and the influence of political policy on judicial decisions Finally, the ‘backlash’ against ‘threatening children’, the affirmation of adult power and knowledge, and the implications of the European judgments in the context of a rights-based agenda are analysed

Weber’s Misunderstanding of Traditional Chinese Law1

Abstract: Using his ideal‐types of the rationalization of legal systems, Max Weber classified modern Western European law as formally rational, traditional Chinese law as substantively irrational. In light of recent research by specialists in pre‐20th‐century Chinese law, Weber is shown to have had several serious misunderstandings. Chinese officials’ arbitrary discretion in judicial decision making was much more limited than Weber thought, and what limited it was not primarily “sacred tradition,” but officials’ obligation to adjudicate according to the written law. There was more legal expertise in the system than Weber realized. By the time of the Ch’ing dynasty (1644–1912), China’s legal system approximated Weber’s substantively rational type more than the substantively irrational type. Finally, Weber’s model for formally rational law—the “conceptual jurisprudence” of late‐19th‐century German civil law—is no longer regarded as the model for modern law. Therefore, students of comparative law who wish to build fro...

Judicial Hostility Toward Labor Unions? Applying the Social Background Model to a Celebrated Concern

Abstract: Brudney, Schiavoni, and Merritt address an important debate dividing lawyers and political scientists: To what extent do extradoctrinal factors such as political party, gender, and professional experience influence judicial decisionmaking? They analyze an area of law, decisions interpreting the National Labor Relations Act, that has long been characterized by assertions of judicial bias. By including every federal court of appeals decision applying the Act over a seven-year period, and controlling for both deference to the administrative agency and differences among issues arising under the Act, the authors are able to identify previously undetected influences on judicial decisionmaking. These include a strong interaction between gender and political party, the influence of prior experience representing management clients under the Act, and associations based on race, religion, and educational background. At the same time, the authors place those influences in context, suggesting the complex interweaving of doctrine and personal background in shaping judicial decisions.

The History of the Countermajoritarian Difficulty, Part Three: The Lesson of Lochner

Abstract: This project continues the history of the countermajoritarian difficulty, explaining that the long dominant "conventional" story about judicial review was born out of fights that took place at the turn of the century. For most of this century the lesson of the Lochner era has been clear: judges should refrain from imposing their own values on the meaning of the Constitution. From that era come all the conventional lessons about judicial restraint and the countermajoritarian difficulty. Now, convention is challenged by a large (and growing) body of revisionist scholarship. Lochner revisionists argue that the Lochner era decisions can be justified as consistent with doctrinal strains existing at the time. Some revisionists go so far as to argue that the conventional story is "winner's history" concocted by Progressive scholars after the battle over judicial review was won. This article challenges the revisionist project. Experience during the first third of the twentieth century shows that judges will be attacked and judicial review threatened so long as the public views judicial decisions as failing to meet social needs, regardless of whether there is doctrinal support for the challenged decisions. Thus, the conventional story is not "winner's history" but an accurate accounting of what happened at the time. And, for this reason even if the revisionists are correct that there was doctrinal support for Lochner era decisions, this only makes matters worse, for judges were attacked vociferously nonetheless. If there is a lesson to be learned from the Lochner era, it is from the attacks that were in fact leveled at judges at the time, rather than any doctrinal strains that might have supported those decisions. The legitimacy of judicial review inevitably rests in part on public reaction to judicial decisions.

How Long is the Coastline of the Law? Thoughts on the Fractal Nature of Legal Systems

Abstract: Although citation to precedent in judicial opinions is a critical component of the network of rules that comprise “the law” in any area, there have been surprisingly few systematic attempts to use the abundant data available on citation patterns to uncover general principles about the structure of the legal system. We examine data on the number of times judicial opinions cite to, and are subsequently cited as, precedent to test the hypothesis that legal arguments and legal doctrine have a kind of “fractal” structure. Our model provides a reasonable fit to the citation data that we examined. There do appear, however, to be significant sources of variability in the data that are not explained by our simple predictive framework, and it is clearly far too early to draw any robust conclusions about the hypothesis other than that additional work along these lines appears to be warranted.

Gender and judicial decisions: Do female judges decide cases differently than male judges?

Abstract: After more than thirty years of feminism and dramatic changes in the number of women entering the legal profession, legal scholars and researchers continue to debate the impact of women's presence on the administration of justice. Central to this debate is the question of whether gender affects legal outcome. Using data collected from state trial judges (N=195) in Pennsylvania, this study examines whether the gender of the litigant and/or judge affects case outcome. Findings show that while litigant characteristics do not affect judicial decisions, the gender of the judge does.

Consensus and suspicion : Judicial reasoning and social change in an Indonesian Society 1960-1994

Abstract: I draw on the archives from two Indonesian courts to analyze how judges have reached decisions in the face of conflicting legal norms. Judges in the town of Takengen, in the highlands of Aceh province, hear claims based on Islam and on local social norms (adat). Between 1960 and the mid-1990s, they changed the way they resolved disputes over inheritance cases, from accepting village settlements as valid, to rejecting those settlements as either contrary to Islam or as coercive. I examine the justifications offered in the earlier and the later periods for these decisions. I find that in both periods judges employed creative legal devices to resolve or bridge differences between Islam and adat, and that they consistently referred to broader cultural values of agreement and fairness. I suggest that the change in their decisions was due to the combination of political centralization, increased legitimacy of the Islamic court, and judges' perceptions of a more individualized society. Between 1960 and 1994, Islamic court judges in the Gayo Highlands of Central Aceh, Indonesia, radically changed the way they judged disputes over family property. Whereas once they had generally upheld local Gayo social norms (adat) about who received family property, by the early 1990s they consistently overruled settlements based on those same norms and redivided property according to Islamic law. From a conservative court that turned down requests to overturn past divisions of farm lands, the religious court became an activist court that routinely overturned such divisions. And yet over this time the relevant substantive law changed very little, and judges recognized that both adat and Islam provided legitimate bases for decisions. Why, then, and based on what reasons, did the court shift its overall stance so markedly? I take this question as my point of departure for exploring the recent social history of judicial reasoning in the Gayo Highlands, drawing on case dossiers, interviews with judges, and field research into the political and economic history of the region. The issues involved are broad ones. Judges everywhere find themselves having to select among competing legally relevant social norms, such as what counts as a contract, or where lie "the best interests of the child."1 Choosing among norms, or, more often, weighing them against each other, usually is shaped by a sense of community standards, by an estimate of how the choice will affect community life, or by policy preferences. Furthermore, this weighing is likely to change along with the social and political context in which judges live and work. Postcolonial societies offer particularly interesting places to study how judges have reasoned in the face of competing norms. Judges in these societies have been finding their interlegal feet amidst a multiplicity of statutes, court decisions, religious doctrines, and colonial-era treatises on "customary law."2 Their public statements on laws and customs often become flash points for national cultural debates. In most societies with large Muslim populations, these debates turn on judgments about the relative legitimacy of secular and religious sources of laws.3 In Indonesia, a multiconfessional state with the world's largest Muslim population, not only have there been extensive public discussions about the validity of claims based on customary norms, Islamic law, stat utes, and judicial decisions, but these discussions also have been part of a process of general, heightened reflection on the proper relation of Islam to national identity. In the Gayo courts judges have paid particular attention to local processes of reaching consensus, and their evaluations of such processes are of significance to broader political discussions in Indonesia. Achieving consensus through deliberation," musyawarah mufakat, a central element in Indonesian ideology, bears some relationship, not yet well understood, to local ways of resolving disputes. …

A Law of Her Own: The Reasonable Woman as a Measure of Man

Abstract: Despite the apparent progress in women's legal status, the law retains a profoundly male bias, and as such contributes to the pervasive violence and injustice against women. In A Law of Her Own, the authors propose to radically change law's fundamental paradigm by introducing a "reasonable woman standard" for measuring men's behavior. Advocating that courts apply this standard to the conduct of men-and women-in legal settings where women are overwhelmingly the injured parties, the authors seek to eliminate the victimization and objectification of women by dismantling part of the legal structure that supports their subordination. A woman-based legal standard-focusing on respect for bodily integrity, agency, and autonomy-would help rectify the imbalance in how society and its legal system view sexual and gender-based harassment, rape, stalking, battery, domestic imprisonment, violence, and death. Examining the bias of the existing "reasonable person" standard through analysis of various court cases and judicial decisions, A Law of Her Own aims to balance the law to incorporate women's values surrounding sex and violence.

Trademark rights in gray markets

Abstract: Parallel importation, the selling of trademarked products through unauthorized distribution channels, can erode trademark image, strain channel relationships and disrupt global planning efforts. With the recent changes in federal court precedent and the landmark 1998 L’Anza Supreme Court decision, the legal rights associated with trademarked products in gray markets have forever changed. Therefore, the authors review the current status of regulatory and judicial decisions affecting gray marketing activities to provide a practical framework for marketing managers. Legal and nonlegal suggestions, for the protection of trademarks in gray market competition, are offered.

Resolute ambivalence: Why judiciaries do not instititionalise their judicial decision support systems

Abstract: This article considers why judiciaries appear to be reluctant to institutionally legitimate judicial decision support systems. While representation of decision processes, design, judicial ownership, the apparent neutrality of data, and 'choice' are all crucial to allaying judicial concern about embracing technological support, it is suggested here that the deepest concern lies in the judicial discourse of 'balance' between formal and substantive visions of justice. Outlining the development of aggregate decision support systems, the article considers the case of New South Wales, which has the longest established judicial decision support system. Revealing a marked judicial ambivalence either to endorse officially, or, to dismiss that system the paper asks whether this ambivalence is simply a symptom of a deeper malaise, namely a 'jurisprudential incoherence' in judicial decisionmaking. Examining the notion of 'jurisprudential incoherence' in judicial thought and behaviour, the article reveals that the ass...

The International Court of Justice and Judicial Review: A Study of the Court's Powers with Respect to Judgements of the ILO and UN Administrative Tribunals

Abstract: Note by the Series Editor. Preface. Table of Cases. Table of Abbreviations. Part One: General. I. Introduction. Part Two: Judicial Review in Municipal and International Law. II. The Meaning of Judicial Review. III. Significant Features of Judicial Review in Municipal Law. IV. Judicial Review in International Law: The International Court and the International Legal System. V. Judicial Review, Advisory Opinions and Contentious Proceedings: A Brief Outline. Part Three: Judicial Review of Judicial Action. VI. The International Court of Justice and the UN and ILO Administrative Tribunals: Preliminary Remarks. VII. Legal Bases of the Court's Powers. VIII. Analysis of the Court's Powers under the Statute of the UN Administrative Tribunal and the Statute of the ILO Administrative Tribunal. IX. The Abolition of the UN Administrative Tribunal Review Procedure. Part Four: Conclusions. X. Conclusions. Annexe I. Annexe II. Annexe III. Select Bibliography. Index.

Sex & Surveillance: Gender, Privacy & the Sexualization of Power in Prison

Abstract: In prison, surveillance is power and power is sexualized. Sex and surveillance, therefore, are profoundly linked. Whereas numerous penal scholars from Bentham to Foucault have theorized the force inherent in the visual monitoring of prisoners, the sexualization of power and the relationship between sex and surveillance is more academically obscure. This article criticizes the failure of federal courts to consider the strong and complex relationship between sex and surveillance in analyzing the constitutionality of prison searches, specifically, cross-gender searches.The analysis proceeds in four parts. Part One introduces the issues posed by sex and surveillance. Part Two describes the sexually predacious prisoner subculture that frames the issue of cross-gender searches and demonstrates how the current doctrine participates in the allocation of power within prison without admitting it. Part Three presents the doctrinal background for cross-gender search cases. It traces the precedents that eroded the basic notion of prisoner privacy and charts the parallel ascendance of sex-based concerns in the regulation of prisons. It also demonstrates that the constitutional doctrine of cross-gender searches is in disarray and that the confusion within the doctrine centers on visual surveillance of male prisoners by female guards in “contact” positions. Part Four examines Johnson v. Phelan, one of the few judicial opinions to draw attention to the realities of prison life in its discussion of visual surveillance. This section credits Judge Richard Posner''s dissent for recognizing the limitations of privacy-based judicial approaches to cross-gender search cases, but criticizes it for blaming the doctrinal inadequacies on those who promote the entry of women into the field of corrections. Finally, this article concludes that judges need to take a new approach to prisoner privacy claims and look beyond traditional sex and power stereotypes.

The meaning of a precedent

Abstract: A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example both for officials and for a target population. Even precedents outside of law function as examples when they have conduct-guiding significance. Examples may be rule-like in their scope, but need not be. Their import is independent of their justification; this point has implications for coherence theories of precedent meaning. The content and scope of a legal decision’s extension is not set exclusively by officials. It is socially set and depends upon social salience.

The supreme court and the protection of minority rights: An empirical examination of racial discrimination cases

Abstract: This inquiry provides a basic assessment of the impact of three potential determinants of racial discrimination cases in the U.S. Supreme Court since 1954. The research design provides two improved methods of explicating this issue. First, the model allows for a comparison of basic Hamiltonian institutionalism (i.e., the bulwark thesis), majoritarianism, and attitudinalism in a single test, as opposed to previous studies that tended to examine only two theoretical approaches at a time. Second, the majoritarian approach is given more careful consideration through the use of theoretical and empirical evidence, which allows the subtleties of public opinion in this area to be assessed. The findings show some support for the basic bulwark prediction over majoritarianismdecisions fail to reflect majority opinion trends. The bulwark thesis fails to receive full support, however, since the ideologies of the Justices also display a significant influence on outcomes. Introduction The assessment of the determinants of U.S. Supreme Court decisionmaking remains an intensely controversial aspect of judicial studies. Advocates of several broad approaches continue to debate which is the principal impetus of outcomes both in general and in specific legal fields.1 My inquiry offers one perspective to help untangle this controversy in the domain of racial discrimination cases in the post-Brown v. Board of Education (1954) period. Although the findings will not end the long-standing debate over what determines decisional outcomes, they do provide a clarified picture of the racial discrimination subfield and a suggestion for studying other specialized areas. My basic approach and specific research design are premised on the assertion that a clear understanding of decisionmaking is obscured by previous studies (both general and particularized) that tend to inflate the influence of majority preferences (thus discrediting institutionalism to an unwarranted extent) and also fail to provide a full account by focusing only on two competing explanations at a time. The strategy for systematically interpreting outcomes in this area rests on two novel tactics. The first tactic is to expand consideration of the potential role played by majority opinion. (I furnish a complete description and justification of this approach later.) This tactic offers an improved test of the majoritarian thesis. The second approach of this inquiry allows for the explication of three potential determinants of decisionsthe rules and structure of the institution itself, majority public preference, and the ideological predilections of the Justices. It thus provides a core comparison of these broad categories rather bluntly defined, as opposed to an exhaustive assessment of all potentially meaningful determinants. Since such a basic measure of outcomes in this field has yet to be undertaken, however, this is a necessary first step. The results of this investigation of constitutional challenges to racial discrimination suggest that even though the Supreme Court is insulated from majority preferences, its decisions are influenced by Justices' ideological leanings. More specifically, although white Americans (who in this area represent the majority, as opposed to the African American minority) are much more amenable to government action designed to end blatantly discriminatory laws and practices (de jure discrimination) than to the eradication of entrenched patterns of inequity (de facto discrimination), this distinction is not reflected in the decision record. Whether a case represents a challenge to de jure or de facto discrimination does not significantly influence its outcome. Furthermore, fluctuations in the general ideological temper of the nation also fail to affect rulings. However, although distancing itself from majority influences, the Court is not consistently protective of minority rights. The ideological composition of the Court displays a significant influence on verdicts; thus, when the Court is relatively more conservative, cases are less likely to be decided in the minority interest. …

The Meaning of a Precedent

Abstract: A familiar jurisprudential view is that a judicial decision functions as a legal precedent by laying down a rule and that the content of this rule is set by officials. Precedents can be followed only by acting in accordance with this rule. This view is mistaken on all counts. A judicial decision functions as a precedent by being an example. At its best, it is an example for both officials and a target population. Even precedents outside of law function as examples when they have conduct-guiding significance. Examples may be rule-like in their scope, but need not be. Unlike rules, precedents have exemplar force, in which their conduct-guiding force may be restricted to partial categories, rather than whole ones. Their import is independent of their justification. The content and scope of a legal decision's extension is not set exclusively by officials. It is socially set and depends upon social salience.

State Courts and School Funding: A Fifty-State Analysis

Abstract: I. INTRODUCTION School funding became an issue of state law after the Supreme Court in San Antonio Independent School District v. Rodriguez(1) refused to declare education a fundamental right, and declined to find that school children in poorly-funded districts represent a suspect class.(2) High courts in forty-one states have considered the issue--seventeen courts finding state school funding systems unconstitutional, and twenty-four courts declining to make this ruling.(3) The purpose of this Article is to examine potential factors affecting these court rulings, and to develop a model that analyzes these factors to determine whether they are predictive of judicial decision making on the constitutionality of state school funding systems across the country. The models constructed to evaluate these state school funding cases will be based on the findings of prior research conducted in the judicial process field. Part II introduces various theoretical approaches that have analyzed judicial decision making and sets forth the framework and methodology upon which the instant school funding models will be created and tested. Based on these theories, Parts III through VII construct models utilizing factors relevant to each approach in anticipation of determining if any factors are predictive of judicial outcomes in school funding cases. Part VIII concludes with the empirical findings for each model, and then incorporates the independent models into a final integrated model--which predicts that a traditionalistic state which is less urban, has a higher per capita income, and a constitution with greater protection for education, will be the most likely to enter a decision for the plaintiffs in a school funding challenge. II. THE JUDICIAL DECISION LITERATURE The complicated nature of judicial decision research has generated multiple theoretical approaches. Until recently, each of the various theories has focused on the effects of only one set of influences on the judicial decision. Some researchers, for example, have argued that case facts and legal rules determine judicial votes.(4) Others conceptualize case outcomes as resulting from influences on the judicial perspective, such as the personality characteristics or political values of the jurists.(5) A third approach holds that influences on the judicial environment--like the actions of the other governmental branches, the economy, or social trends--sway the judicial decision.(6) Institutional features such as length of judicial term and selection method are a fourth source of potential influences on a judge's vote.(7) Recent scholarship, however, suggests that models dealing with only one set of explanatory variables fail to capture the complexities of the many influences on judicial decisions, and thus are underspecified.(8) These authors propose a fifth approach to the analysis of judicial decision making that integrates the previously described theories of judicial behavior into one model.(9) This type of integrated model would also take into account interactions among variables that might condition relationships among legal, personal, and environmental perspectives. As noted by one commentator, it is important for a fully specified model of judicial decision making to include these interactive terms, because they offer "an explanation of appellate court decision making that sufficiently reflects the complexity of the judicial calculus."(10) All of these theories will be discussed in greater detail below. In each of the models to be tested, the dependent variable will be the decision reached by the highest court in each state that has considered the constitutionality of the state's school funding system. Supreme courts in two states, Arizona and Ohio, originally declined to overturn their school funding systems,(11) but later overruled these decisions and found their systems unconstitutional.(12) As these two state decisions address the constitutional meaning of equal protection and education, both cases will be included in the models. …

The separating of conjoined twins.

Abstract: It is rare for judges to comment on the personal difficulties they face in reaching decisions. Unlike doctors, who can freely admit to the anxiety that difficult decisions may give them, judges are meant to remain tight lipped. The controversial case of conjoined twins, recently decided by the Court of Appeal in England, has been different.1 The twins, brought to Britain for medical assessment, need to be separated. Surgery can save one but will inevitably lead to the death of the other twin, who has no effective heart or lung function and who also seems to have brain damage. The parents do not want the twins separated if one twin has to die. At several points the judges involved in the decision made public remarks about sleepless nights. After all, judges are human, and nobody could have found this case anything but distressing. Now, after all the soul searching, we have a decision and, even if the case goes further on appeal, the tide of judicial opinion on this issue seems clear enough. The twins, Jodie and Mary, are to be separated, at the inevitable cost of the life of Mary, the weaker twin. What is the legal significance of this case? One thing is clear: this decision, the transcript of which runs to well over 100 pages, is likely to have an impact outside Britain. In looking at all the legal and moral issues involved, the judges took a broad view and looked to the laws of several countries. The judgment, therefore, speaks to doctors and lawyers abroad, even if ultimately it concentrates on what English law should do. This will certainly be a landmark decision in any future debate on the law and ethics of life and death decisions. The legal issues were complex. The parents did not want Jodie to be saved at the cost of Mary's life. They took the view that this would be to end a life—a position in which they were supported by their Catholic church. In these circumstances the first issue that the court had to address was whether parents could refuse to allow treatment. Here the court applied a well established principle of English law, which is that judges can overrule parental opposition to treatment if it is in the best interest of the child to do so. This is the so called “welfare principle,” which places the child's welfare above any parental interest. This principle usually gives a clear answer: doctors may be authorised by the court to treat a child if a parent refuses to sanction treatment that is clearly necessary for that child's welfare. Family law in many countries also endorses that principle unambiguously. In a normal case that would have been enough, but this was no ordinary case. Even if parental wishes were to be overruled the interests of each child had to be considered. This issue obliged the court to consider whether it could prefer the interest of one child over the interests of another. The judges were at pains to hold that Mary's life had intrinsic value, even if she was dependent on her sister and had no hope of a reasonable quality of life. But this, of course, did not provide an answer to the dilemma, and eventually the court had to consider the way in which each child would individually be able to exercise her right to life. The scales then came down in favour of the twin who could survive. There was still the issue of the criminal law. The judges might decide to favour one child over another, but they could not authorise a procedure that could amount to homicide. At this point the principle of necessity entered the court room. Necessity is a broad criminal law defence that may authorise an otherwise criminal act provided that the act is the lesser of two evils. This judgment holds that exceptional necessity may justify the taking of a life when an inescapable choice has to be made between two persons. Doctors should be wary, however, of reading too much into the court's conclusion on necessity. The judges have made it abundantly clear that the value of every human life must be upheld, and it is only when there is absolutely no alternative but to make a choice between lives that this will be permitted. Obviously these circumstances will be rare, although there are interesting issues here for decisions about resource allocation in the future. This decision acknowledges that the making of a hard choice in favour of one life over another may be defensible in legal terms. Critics of this decision will say that it represents a further step towards the legal recognition of euthanasia. This is not so. What it does is to endorse the position that, although human life is of the greatest value, no good end is necessarily served by taking an absolutist position. Life must be protected with great rigour, but there are some cases of dire necessity in which we may have to accept its loss.

An Empirical Analysis of Supreme Court Justices' Decision Making

Abstract: The intrinsic problem in empirically analyzing Supreme Court justices' decision making is that cases before the Court are not necessarily independent of the justices. When a justice has taken part in deciding a precedent of a current case, her present decision should be affected by her past decision. This effect, the most common feature under the common‐law system, would impose a difficulty in doing empirical research about judicial decision making. Thus, without controlling for this path‐dependent effect, any test cannot help but be incomplete. Focusing on the votes of justices categorized by ideological direction, in this paper I develop a model that explicitly considers individual justices' voting in the precedents. Using about 600 relations of Supreme Court cases between a later decision and a precedent, I quantify the effects of institutional and individual stare decisis and, furthermore, decompose various factors affecting individual justice's decision making.

Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve the Public Interest?

Abstract: There is a widely shared perception among lawyers, judges, and various public officials that government lawyers have greater responsibilities to serve the public interest than lawyers in private practice. This perception is reflected in judicial opinions, lawyer professional responsibility standards, and numerous other legal writings. Nonetheless, a number of academic critics have attacked what is described here as the "public interest serving" role for government attorneys. This Article provides a defense of the public interest serving role against its critics. While the critiques addressed are diverse, they often make the mistake of importing values from the context of private litigation into the quintessentially public context of government litigation. The Article concludes by offering three examples of the most common forms of government litigation—criminal prosecutions, lawsuits against executive branch agencies, and civil enforcement proceedings—in an effort to demonstrate how the public interest serving role ought to be pursued.

The Pay Gap between Male and Female Jobs: Organizational and Legal Realities

Abstract: Legalizing Gender Inequality results from a decade of research in which Robert Nelson, a sociologist of law, combined forces with William Bridges, a sociologist who has studied labor markets. This combination led to an unusual and creative approach. The authors chose four class-action court cases involving sex discrimination in pay, and did in-depth studies of the judicial decisions, testimony, exhibits, and depositions from each. They also obtained and reanalyzed statistical data sets involved in the cases and, where possible, interviewed key actors.

Exploring the Costs of Administrative Legalization: City Expenditures on Legal Services, 1960-1995

Abstract: The institutional environment in both the private and public sector, according to a wide range of observers, is increasingly "legalized": decisionmaking processes and substantive policies are increasingly subject to legal rules and procedural requirements that are enforceable in court. Although there is little dispute that legal liability has expanded in this way, there is great dispute about the effect of these changes, particularly their costs, on public organizations in practice. Some observers argue that legalization has imposed heavy costs, especially financial costs, on organizations; others, for a variety of reasons, argue that these costs are likely to be exaggerated. In this article I suggest that organizational expenditures on legal services are likely to be a valid indicator of certain important elements of the costs of administrative legalization. I present the results of a study of the legal services expenditures of 13 major U.S. cities over a 35-year period. The results indicate that legal services expenditures indeed have increased in many cities, although not as much as some commentators have speculated. Furthermore, there are significant variations in expenditure patterns among the cities, and a number experienced no long-term growth trend in legal services expenditures. It is widely recognized that the organizational environment in the United States has become more and more legalized, in the sense that decisionmaking processes and substantive policies in public organizations are increasingly influenced by legal rules and procedural requirements that are enforceable in the judicial system. As Rosenbloom and O'Leary (1997:v) observe, "In the aggregate, judicial decisions have required broad changes in administrative values, decision making, organization, processes, and policy implementation." Marc Galanter (1992) similarly has observed that life in the United States and several other societies is increasingly subject to legal forms and procedures, influenced by lawyers, and governed by formal regulations. A diverse range of scholars concur (Abzug & Mezias 1993; Edelman 1990, 1992; Friedman 1985; Sutton et al. 1994; Tate & Vallinder 1995; Teubner 1987). Tate (1995:28), for instance, has observed that a key element of "the judicialization of politics" is "the process by which nonjudicial negotiating and decision-making forums come to be dominated by quasi judicial (legalistic) rules and procedures." Similarly, Kagan ( 1991 ) has characterized American administrative processes as dominated by a culture of "adversarial legalism." While there is general agreement that the organizational environment has become increasingly legalized, the effects of legalization on organizations, particularly its costs, are a matter of great debate. Perhaps the most common view is that legalization has imposed increasingly heavy costs on organizations (see, e.g., Howard 1994; Olson 1991, 1997). Although these costs are not limited to monetary expenditures, most proponents of this interpretation posit that the monetary expenses of legalization are great and are indicative of other underlying costs (to organizational efficiency and the like). This view, though widely accepted, is not universally held. A diverse array of scholarship supports an alternative expectation: that we should find no substantial increase in costs, for one (or both) of two very different but not incompatible reasons. One of these reasons, according to some scholars, is that the costs associated with litigation and judicial orders are commonly exaggerated (see Duncombe & Straussman 1994; Eisenberg & Schwab 1987). The other reason that we may find little or no increase in costs is that some public organizations may have succeeded in instituting substantial reforms that have lessened their exposure to large expenses associated with legal liability. Although the question of financial expenditures associated with legalization is highly significant, there has, unfortunately, been very little systematic research on the matter. …

Sex, Lies, and Presidential Leadership: Interpretations of the Office

Abstract: Presidential leadership is, by definition, ambiguous From the founding to the present, presidential leadership has been defined, expanded, and limited through practice rather than theory The presidency as an institution means whatever the president, Congress, the courts, the media, and the American people at any given point in history agree that it means The processes of arriving at that agreement--which is never complete and is always a matter of debate--are a complex series of negotiations, which involve legislation, judicial decisions, media frames, and public opinion In this context, the plethora of arguments surrounding the events of the Monica Lewinsky affair and Clinton's resulting impeachment trial provide us with valuable material through which we can begin to understand the varying definitions of what the presidency is and how it should operate (Baas and Thomas 1999; Miller 1999) This is a particularly useful case for the rhetorical battle was waged not over the facts behind the accusations but over their meaning and relationship to a constitutionally mandated, historically established standard of behavior ("high crimes and misdemeanors") Arguments from the trial transcripts and reports in various media outlets provide perspective on the competing definitions of presidential power and the president's role in the national polity In other words, the arguments about the immediate fate of President Clinton reveal more than political predilections They also reveal deeply embedded definitions of presidential power, its limitations, and the proper function of the presidency in the contemporary political system (Olson and Goodnight 1994) We make no claim that the examples presented here are either systematic or exhaustive We examined arguments made by the major Washington players in the Lewinsky scandal and subsequent impeachment proceedings, editorials and letters to the editor in a wide variety of national and regional newspapers, the major news magazines, and other published sources What we present here is a distillation of comments on Clinton that reflect a certain set of views about the nature and meaning of the presidency The persuasive attempts that are presented here are not all equally relevant to all Americans For those--apparently the majority--for whom the scandal was "about a zealous prosecutor who had spent many of their tax dollars doing the dirty work of the far right wing of the Republican party" (Miller 1999, p 728), the question of Clinton's behavior was less relevant than for those who supported his removal In addition, Clinton's supporters, as defenders of the status quo, had less need to make public arguments advocating that position (Olson and Goodnight 1994, 251) Moreover, even when Clinton's defenders were moved to make arguments and were focused on the president rather than the special prosecutor, they were not inclined to defend that behavior (Miller 1999, 722) A similar analysis of the special prosecutor would probably appear similarly biased, although in a different direction (see, eg, Bookman 1998; Dionne 1998; Sharp 1998) In addition, the media were themselves overwhelmingly critical of the president (Miller 1999, 724) Thus, this analysis appears more critical than supportive of Clinton, a poor reflection of the bulk of public opinion throughout the scandal But we are not trying here to capture the public's opinions of the scandal but of the presidency through the lens of the scandal Many, if not all, of these positions may stem from political expediency and/or self-interest rather than from consistent and well thought out political theories This is not important to this analysis What is important is that the particular definitions are supported in the polity as reasonable ways of understanding the institution As Kathryn M Olson and G Thomas Goodnight (1994) argue, the analysis of social controversy can "open horizons for critical inquiry" as well as offer a lens into public persuasion (p …

The Greek Divorce Law Reform of 1983 and Its Impact on Homemakers : a Social and Economic Analysis

Abstract: In 1983, Greek Family Law was radically amended on the basis of gender equality and divorce law was liberalized, with the introduction of no-fault divorce and divorce by mutual consent. We aim to assess the potentially wide-ranging effects of the new divorce law on the social and economic status of homemakers in traditional, long-duration marriages. We reviewed a sample of 500 reported judicial decisions on maintenance and postdivorce distribution of marital property, finding that the new gender-neutral statutes on maintenance fail to protect the interests of homemakers after divorce. We identify judicial attitudes that misconstrue formal gender equality for substantive equality as a determining factor for such negative outcomes. We propose a new reliance-based model for Greek alimony law and illustrate that reliance is the most effective legal formula for acknowledging the nonpecuniary contributions of homemakers. Our research further demonstrates that homemakers are disadvantaged by the postdivorce distribution of marital property. We identified a number of problems that seriously compromise a homemaker's chances of receiving a fair share of marital acquests. The most prominent among them is that Greek courts do not apply clear-cut standards in evaluating a homemaker's domestic services, thus attaching a low value to their contributions within marriage. Yet another problem is that intangible assets (like the husband's postdivorce income and his pension benefits) are not designated as divisible marital property. We conclude by arguing that the reform was overall socially effective; however, it had an unintended negative impact on divorced homemakers. First, because the legislators did not include any special provisions on homemakers. Second, because judges have generally interpreted the new statutes as if men and women are always equal on divorce, and further, as if all women are similarly situated. To remedy these after-effects, we make specific proposals for future amendments. The central idea underlying these proposals is that divorce should be made more difficult for married couples with children. Lastly, we consider a number of measures that Greek policymakers can adopt in view of protecting divorced women and their children, while at the same promoting the social value of intact families. [This is an unpublished doctoral thesis submitted to the University of Chicago and supervised by Prof. Gary S. Becker, Judge Richard A. Posner and Prof. Mary A. Becker]