Showing papers on "Judicial opinion published in 2006"

Playing Dice With Criminal Sentences: The Influence of Irrelevant Anchors on Experts’ Judicial Decision Making

Abstract: Judicial sentencing decisions should be guided by facts, not by chance. The present research however demonstrates that the sentencing decisions of experienced legal professionals are influenced by irrelevant sentencing demands even if they are blatantly determined at random. Participating legal experts anchored their sentencing decisions on a given sentencing demand and assimilated toward it even if this demand came from an irrelevant source (Study 1), they were informed that this demand was randomly determined (Study 2), or they randomly determined this demand themselves by throwing dice (Study 3). Expertise and experience did not reduce this effect. This sentencing bias appears to be produced by a selective increase in the accessibility of arguments that are consistent with the random sentencing demand: The accessibility of incriminating arguments was higher if participants were confronted with a high rather than a low anchor (Study 4). Practical and theoretical implications of this research are discussed.

Systematic Content Analysis of Judicial Opinions

Abstract: Despite the interdisciplinary bent of legal scholars, the academy has yet to identify an empirical methodology that is uniquely its own. We propose that one standard social science technique - content analysis - could form the basis for an empirical methodology that is uniquely legal. It holds the potential for bringing social science rigor to our empirical understanding of caselaw, and therefore for creating what is distinctively a legal form of empiricism. To explore this potential, we collected all 122 examples we could find that use content analysis to study judicial opinions, and coded them for pertinent features. Legal scholars began to code and count cases decades ago, but use of this method did not accelerate until about 15 years ago. Most applications are home-grown, with no effort to draw on established social science techniques. To provide methodological guidance, we survey the questions that legal scholars have tried to answer through content analysis, and use that experience to generalize about the strengths and weaknesses of the technique compared with conventional interpretive legal methods. The epistemological roots of content analysis lie in legal realism. Any question that a lawyer might ask about what courts say or do can be studied more objectively using one of the four distinct components of content analysis: 1) replicable selection of cases; 2) objective coding of cases; 3) counting case contents for descriptive purposes; or 4) statistical analysis of case coding. Each of these components contributes something of unique epistemological value to legal research, yet at each of these four stages, some legal scholars have objected to the technique. The most effective response is to recognize that content analysis does not occupy the same epistemological ground as conventional legal scholarship. Instead, each method renders different kinds of insights that complement each other, so that, together, the two approaches to understanding caselaw are more powerful that either alone. Content analysis is best used when each decision should receive equal weight, that is, when it is appropriate to regard the content of opinions as generic data. Scholars have found that it is especially useful in studies that question or debunk conventional legal wisdom. Content analysis also holds promise in the study of the connections between judicial opinions and other parts of the social, political, or economic landscape. The strongest application is when the subject of study is simply the behavior of judges in writing opinions or deciding cases. Then, content analysis combines the analytical skills of the lawyer with the power of science that comes from articulated and replicable methods. However, analyzing the cause-and-effect relationship between the outcome of cases and the legally relevant factors presented by judges to justify their decisions raises a serious circularity problem. Therefore, content analysis is not an especially good tool for helping lawyers to predict the outcome of cases based on real-world facts. This article also provides guidance on the best practices for using this research method. We identify techniques that meet standards of social science rigor and account for the practical needs of legal researchers. These techniques include methods for case sampling, coder training, reliability testing, and statistical analysis. It is not necessary to practice this method profitably only at its highest level. Instead, we show that valuable uses can be made even by those who are largely innumerate.

Bargaining and Opinion Assignment on the U.S. Supreme Court

Abstract: We formulate a new game-theoretic model of bargaining on the U.S. Supreme Court. In the model, a degree of monopoly power over policy endogenously accrues to the assigned writer despite an "open rule" for the other justices. We assume justices are motivated ultimately by a concern for judicial policy, but that the policy impact of an opinion depends partly on its persuasiveness, clarity, and craftsmanship - its legal quality. The effort-cost of producing a high quality opinion creates a wedge that the assignee can exploit to move an opinion from the median without provoking a winning counter-offer. We use this bargaining model as the foundation for a formal analysis of opinion assignment. Both the bargaining and opinion assignment models display rich and tractable comparative statics, allowing them to explain well-known empirical regularities as well as generate new propositions, within a unified and internally consistent framework.

Defining Terrorism in International Law

Abstract: Introduction: Concepts of Terrorism 1. Reasons for Defining and Criminalizing Terrorism Nature of International Crimes International Criminological Policy Terrorism as a Discrete International Crime Elements of a Definition of Terrorism 2. Defending 'Terrorism': Justifications and Excuses for Terrorist Violence Common Justifications for Terrorism Criminal Law Defences to Terrorism Circumstances Precluding Group Responsibility 'Illegal but Justifiable' Terrorism Discretion and Law: Never Negotiate with Terrorists? 3. Terrorism in International and Regional Treaty Law Transnational Criminal Law Treaties Treaties of Regional Organizations Attempts at Definition in Treaty Law 1930 - 2005 4. Terrorism in Customary International Law UN General Assembley Practice UN Security Council Practice Judicial Decisions Defining Terrorism National Terrorism Legislation 5. Terrorism in International Humanitarian Law Early Developments 1919 - 1948 Second World War and Aftermath 1939 - 1948 1949 Geneva Conventions and 1977 Protocols International Criminal Tribunals since 1993 Individual Criminal Responsibility for 'Terrorism' Customary Crimes of Terrorism in Armed Conflict US Military Commissions and 'Terrorism' No Separate Category of 'Terrorist' Conclusion: Proving Terror, Avoiding Duplication CONCLUSION BIBLIOGRAPHY

Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases:

Abstract: The theoretical and empirical debate over the ability of the U.S. Supreme Court to influence public opinion through its decisions is far from settled. Scholars have examined the question using a variety of theoretical perspectives and empirical evidence, but there is no theoretical consensus, nor are the empirical studies without methodological weaknesses. We enter this debate in an attempt to bring some clarity to the theoretical approaches, overcome some of the methodological shortcomings, and bring a yet unstudied issue area, Court decisions on gay civil rights, under scrutiny. We argue that the ability of Court decisions to influence public opinion is a function of the salience of the issue, the political context, and case specific factors at the aggregate level. At the individual level these factors are also relevant, but citizen characteristics must also be taken into consideration. Our analysis of aggregate level and individual level opinion does indeed suggest that Court decisions can influence pu...

The Politics of Judicial Review

Abstract: This article marries the positive literature regarding judicial behavior to the normative literature regarding judicial review. Though scholars in the legal and political science academies both study judicial review, their approaches are dramatically different. Legal scholars tend to the normative, studying how judges should behave. Political scientists and political economists ask positive questions: how do judges behave, and why? The central thesis of the article is that normative literature about judicial review will remain impoverished until it takes account of the positive scholarship. Ought implies can; much of the positive literature suggests judges cannot or will not behave as normative scholars demand. The article proceeds in four parts. After an Introduction, there is a brief historical discussion to explain why normative and positive scholarship parted company in the early 1940s. The heart of the article follows. This part is a comprehensive examination of the political influences on the constitutional judges. Beginning with the politics of the judge herself, the article then moves out in concentric circles to examine (a) the politics of judging on a collegial court; (b) the difficulties the Supreme Court faces in managing a large judicial hierarchy; (c) the influences of the other branches on Supreme Court decisionmaking; and (d) the relationship between public opinion and judicial review. In each section the goal is to show how confronting normative aspiration with political reality refocuses the questions that ought to be asked about judicial review. A subsidiary goal is to introduce normative scholars who are unaware to the vast positive literature about judicial behavior. The final part examines how the political influences described here ought to bear upon normative scholarship on judicial review.

Complex Legal Legacies: The Native American Graves Protection and Repatriation Act, Scientific Study, and Kennewick Man

Abstract: Debates over disposition options for an inadvertently discovered set of early Holocene human remains known as Kennewick Man have fueled discussions about the scientific, cultural, and ethical implications of the anthropological study of human remains. A high-profile lawsuit over Kennewick Man has led to the most extensive judicial analysis to date of the Native American Graves Protection and Repatriation Act (NAGPRA), the primary law affecting access to, and the ultimate disposition of, ancient human remains found in the United States. However, despite years of litigation, some key questions remain unanswered. The judicial decisions in Kennewick address important questions about determining Native American status and assessing cultural affiliation under the law. However, the court opinions fail to address the role of scientific study within NAGPRA's confines. This article examines NAGPRA and concludes that two provisions in the law expressly permit the scientific study of human remains if certain conditions are met. Significantly, Kennewick Man might have qualified for study under NAGPRA even if found to be Native American and culturally affiliated with the claimant tribes, which would have enabled study to proceed from the outset while the parties debated the issues of Native American status and potential cultural affiliation.

What is Legal Doctrine

Abstract: Legal doctrine is the currency of the law. In many respects, doctrine, or precedent, is the law, at least as it comes from courts. Judicial opinions create the rules or standards that comprise legal doctrine. Yet the nature and effect of legal doctrine has been woefully understudied. Researchers from the legal academy and from political science departments have conducted extensive research on the law, but they have largely ignored each others' efforts.1 Unfortunately, neither has effectively come to grips with the descriptive meaning of legal doctrine. In this Essay, we propound various theories of how legal doctrine may matter and how those theories may be tested. Legal doctrine sets the terms for future resolution of cases in an area. Doctrine may take many forms; it may be fact-dependent, and therefore limited, or sweeping in its breadth. One doctrinal distinction commonly discussed in the law is the distinction between "rules" and "standards."2 Rules are strict requirements that define the answer to a dispute, once the predicate facts are established. A rule is something like "any subsequent and unauthorized use of another's mark constitutes trademark infringement." Standards, by contrast, are more amorphous guides to resolving disputes, often listing a set of factors to be considered and balanced. A standard would be a law that directed "trademark infringement occurs when there is a likelihood of confusion between the senior and junior marks, as determined by weighing the following factors . . . ." Both doctrinal approaches are found in the law, but there is little analysis of why one might prefer a rule or a standard and what the subsequent effects of the two types of doctrine might be.3 It is frequently presumed that standards leave space for more ideological judging, but this claim has never been demonstrated. Legal researchers have extensively dealt with doctrine as a normative matter but have given little attention to the manner in which it actually functions. Social scientists, who have done important descriptive work about how courts actually function, have largely ignored the significance of legal doctrine. Consequently, we are left with a very poor understanding of the most central question about the law's function in society. Fortunately, recent years have seen the beginning of rigorous research into this question. As legal researchers increasingly conduct quantitative empirical research and collaborate with social scientists, we may hope for an efflorescence of this research and greatly enhanced understanding of legal doctrine. This Essay sketches a theoretical outline of how that research might proceed. I. TRADITIONAL LEGAL VIEWS OF DOCTRINE The conventional legal approach to the law is all about doctrine. Legal academics understand that the language of judicial opinions represents the law. The classical form of legal scholarship was doctrinal analysis, in which a researcher examined the content of a legal opinion to evaluate whether it was effectively reasoned or to explore its implications for future cases.4 Doctrinal analysis was grounded in a descriptive premise that reasoned argument from doctrinal premises actually explained judicial decisions. This research was often evaluative and critical. It implied, however, only that courts had erred, such that a persuasive doctrinal analysis could show the judiciary the error of its ways and provoke a new course of legal reasoning. Legal academics, unsurprisingly, have focused on the traditional legal model of judicial decisionmaking based on "reasoned response to reasoned argument."5 Through this process, one obtains "legal reasoning that can generate outcomes in controversial disputes independent of the political or economic ideology of the judge."6 Central to this legal model is the basing of decisions on some neutral legal principles, free from any political or personal contamination. If the law rules, the identity of the judge should not determine the judicial outcome. …

The Law of the Word: Dictionary Shopping in the Supreme Court

Abstract: This article undertakes a critical evaluation of the Supreme Court's use of dictionaries. It does so by describing and applying principles of lexicography to show that dictionaries are not as authoritative, precise, or scholarly as we and the Justices often assume. Modern lexicographers see their task as describing how speakers of English use words. They do not seek or claim to prescribe how language should be used. Although modern dictionaries rely in part on other dictionaries' definition, they also develop an ongoing citation file, a collection of potential entries based on a variety of sources. Because of the constant change and growth of language, however, dictionaries are inevitably out of date by the time they are published. Moreover, definitions, which are abstracted from the survey of usages, are subject to stringent constraints on length. Technical vocabulary poses a particular challenge. Legal dictionaries, while they try to fill the gap in general dictionaries regarding specialized use of common terms, have their own limits. Black's Law Dictionary, for example has used judicial opinions as its primary citation source. The article applies such insights from lexicography to the Supreme Court's use of dictionaries in a number of cases, including Chisom v. Romer, National Organization for Women. v. Scheidler, MCI Telecommunications v. American Telephone and Telegraph, and Babbitt v. Sweet Home Chapter of Communities.

How Long is the Coastline of 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 that might illuminate the nature and structure of the legal system In this paper, we use data from the New York Court of Appeals and the Seventh Circuit regarding 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, although there appear to be significant sources of variability in these 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

Care of children : families, dispute resolution and the Family Court

Abstract: This study explored family members’ experience of, and satisfaction with, New Zealand Family Court dispute resolution processes concerning children’s care arrangements following parental separation. A qualitative method was employed, using individual interviews with 22 parents and 8 children from 15 families, in three court districts, during 2001-2002. Follow-up interviews were also conducted with the parents one year later to assess the factors affecting compliance with their agreements and court orders. Focus groups were held with 16 Family Court professionals (lawyers, counsellors, specialist report writers and judges) in two cities to obtain their views on the family members’ perspectives. Sociocultural and ecological theories, the sociology of childhood and the UNCRC provided the conceptual basis for the research. Historical developments in child custody and divorce laws, which provided the impetus for the establishment of Family Courts internationally, have also been reviewed. Each parent was legally represented, with 87% of the families also attending Family Court counselling and judge-led mediation conferences. Defended hearings occurred in 27% of the cases. Family members reported a broad range of views about their legal and court experiences. They valued their interactions with professionals who took an interest in them and their children, provided clear information and support, let them have their say, and competently managed the dispute resolution processes. Dissatisfaction was frequently expressed with the conduct of ex-partners and with professionals’ styles of practice, particularly where these involved erratic or uncompromising attitudes and adversarial tactics. The desire to respond to what was written in an expartner’s affidavit escalated some parenting disputes onto a litigation pathway. Delay, cost, gender bias, lack of enforcement of court orders, and inadequate opportunities to feel heard, understood and respected were also identified as problems associated with Family Court proceedings. Earlier access to a wider

The use of rhetorical sources by the U.S. supreme court

Abstract: This study considers whether U.S. Supreme Court justices use opinion content strategically, to enhance the legitimacy of case outcomes. This hypothesis is tested by examining the Court's use of rhetorical sources, which are references to esteemed figures and texts that corroborate the justices' views. The data are consistent with the position that justices use rhetorical sources strategically, citing them when the legitimacy of their actions is lowest, such as when they are overturning precedent, invalidating state or federal law, or issuing directives from a divided bench. The study also tests several other explanations for the use of these sources, such as legal considerations, the justices' ideologies, and efficiency concerns. Though sometimes overlooked, the language of court opinions can be as important as the disposition of cases, albeit for different reasons. The outcome of a case has the most direct impact on the parties and issues involved. It announces who wins and who loses, which laws and policies survive and which do not. But the language of opinions is often where the real work of courts is done. Judicial opinions can confine holdings to particular sets of claimants or announce more general principles. They can firmly endorse rules or they can equivocate, inviting relitigation. And opinions can persuade, building up coalitions of judges for majorities and earning the support of interpreting and implementing groups. This study investigates some of the language choices that U.S. Supreme Court justices make. Specifically, it focuses on what might be termed rhetorical sources: references to prominent authors and texts that are nonbinding on case outcomes. These sources include a wide range of materials, from interpretive authorities such as the Federalist Papers and Blackstone's Commentaries on the Laws of England to the writings of esteemed figures such as Thomas Jefferson and John Locke. Because their inclusion is optional, rhetorical sources can serve as a gateway to understanding how Supreme Court justices assemble their opinions. Why does one justice cite the Federalist Papers when another does not? Is it simply a matter of personal preference, or do legal considerations also matter? Are justices motivated by efficiency concerns, or by more complex interests? One possibility is that justices use rhetorical sources strategically, employing them most frequently when the legitimacy of their holdings is in doubt, such as when they are overturning precedents or invalidating statutes. When deciding hard cases, justices must know that their opinions are likely to be scrutinized by individuals both on and off the bench. Even if such scrutiny does not affect the outcome a justice chooses (Segal & Spaeth 1993), it may still affect the language used to defend it. Making an opinion as persuasive as possible can serve any number of useful functions. It can hold together a majority coalition or encourage a wavering justice to sign on. It can facilitate compliance by winning over interpreting and implementing groups. Or it can enhance the reputation of an opinion and its author in the legal community. For example, when the Court in Furman v. Georgia (408 U.S. 238 [1972]) declared that states could not impose the death penalty because, as applied, it constituted "cruel and unusual punishment," the justices did not simply present their views as raw expressions of judicial will. The separate opinions justify their expressed policy preferences by invoking such materials as Blackstone's Commentaries, John Stuart Mill's "On Liberty," the Magna Carta, and the writings of Thomas Jefferson, Joseph Story, and Oliver Wendell Holmes, among other legal authorities. Buckley v. Valeo (424 U.S. 1 [1976]), concerning the constitutionality of campaign finance legislation, contains references to Charles de Montesquieu, while Justice John Paul Stevens's majority opinion in U.S. Term Limits v. Thornlon (514 U. …

Empirically Testing Dworkin's Chain Novel Theory: Studying the Path of Precedent

Abstract: This article provides an empirical study of the effect of precedent on judicial decisionmaking. Precedent is much analyzed as a controlling factor for judicial decisions but rarely tested for its effect. Some have argued that reliance on precedent creates a system of path dependence of the law, which may yield undesirable herd behavior. As a framework for the study of precedent, we use Dworkin's metaphor of a chain novel, in which each deciding judge writes upon a background to which he or she must adhere, thereby influencing his decisions. This yields testable hypotheses about judicial decisionmaking. Given the considerable data on the ideological component of judicial decisionmaking, it provides a means to study the effect of precedent, as a constraint on judicial ideology. First, we examine cases of first impression, for which there is no controlling precedent, like the very first chapter of a chain novel. The hypothesis is that the absence of precedent in these cases frees judges to use their ideology to a greater degree than in other cases with precedents, and this hypothesis is confirmed. Judges render more ideological opinions in cases of first impression. The second study considers the growth of precedent over time in the context of 42 U.S.C. Section 1983 litigation. The hypothesis is that as precedents accumulate, they steadily narrow the range of judicial discretion, so the effect of ideology should dwindle over time, as might be expected from a chain novel. The data falsify this hypothesis, as ideology seems to increase somewhat as a determinant as more precedents build up. The results suggest that precedent acts as only a limited constraint on judicial decisionmaking and the path dependence of a system of stare decisis is exaggerated.

Justice for Sale? Campaign Contributions and Judicial Decision Making

Abstract: While federal judges are selected by appointment, many state judges are selected through competitive elections As state judicial campaigns become progressively more costly and political, judicial candidates have turned increasingly to lawyers and law firms as a source of campaign funds Given that contributing lawyers frequently appear in court, it is natural to wonder whether judges are more likely to rule in favor of attorneys who offered financial support to their campaign Looking at cases from the Supreme Court of Georgia's 2003 term, I show that campaign contributions are indeed correlated with judges' decisions Further, using a two-stage probit least squares estimator to address questions of causality, I show that the campaign contributions directly affect judicial decision making

Judicial Decision Making During Wartime

Abstract: The separation of powers becomes increasingly stressed during wartime, as power is traditionally accumulated by and consolidated in the executive. This article asks to what degree the separation of powers collapses by examining judicial deference to the executive during wartime. By analyzing a set of cases in the courts of appeals from a 100-year time period, this article demonstrates that while judicial preferences undergo a fundamental shift with respect to criminal cases, there is no evidence of heightened deference to the executive during wartime. These findings suggest that a state of war has a preference-altering effect on judicial treatment of criminal defendants. They further suggest that concerns about judicial deference to the executive during times of war may not be as serious as conventional wisdom suggests.

Systems, methods and interfaces for aggregating and providing information regarding legal professionals

Abstract: The present inventors devised systems, methods, interfaces, and software that can facilitate identification of law firms and/or legal professionals. One exemplary system receives queries from users regarding a legal topic and responds with a listing of attorneys or law firms that are associated with information ranking them based on their experience in handling matters related to the legal topic. The ranking information is based on links between attorneys and public legal documents, such as judicial opinions, court dockets, briefs, litigation documents, journal articles, patents, trademarks, and so forth that mention them by name.

Judicial Lobbying: The Politics of Labor Law Constitutional Interpretation

Abstract: This paper links the theory of interest groups influence over the legislature with that of congressional control over the judiciary. The resulting framework reconciles the theoretical literature of lobbying with the negative available evidence on the impact of lobbying over legislative outcomes, and sheds light to the determinants of lobbying in separation-of-powers systems. We provide conditions for judicial decisions to be sensitive to legislative lobbying, and find that lobbying falls the more divided the legislature is on the relevant issues. We apply this framework to analyze supreme court labor decisions in Argentina, and find results consistent with the predictions of the theory.

Intellectual Freedom and Libraries: Complexity and Change in the Twenty-First-Century Digital Environment.

Abstract: What is the state of intellectual freedom and libraries in the early twenty‐first‐century digital environment? This question is addressed largely in relation to public and school libraries, where more than 90 percent of documented challenges exist and at which most legislative and judicial actions relevant to intellectual freedom and libraries are directed. Analyses of changing perceptions of the intellectual‐freedom leadership role of women and children; of the relevant policy documents of the American Library Association; of recent legislation and judicial decisions, focused on both books and the Internet; and of the current public perception of libraries as a public good reveal the complexities and tensions that exist in the answer to this question. One possible explanation for the current state of intellectual freedom and libraries is offered through application of radical‐change theory. Changes in research, education, and practice are suggested based on the conclusions from these analyses.

The psychology of the Supreme Court

Abstract: 1. The Supreme Court: The Least Understood Branch 2. The Selective Nature of Supreme Court Justices 3. Steps in the Decision-Making Process 4. Day to Day in the Life of the Court 5. A Psychological Analysis of Decision Formation 6. The Rational-Choice Model in Judicial Decision Making 7. The Bush v. Gore Decision 8. How Individual Justices Affect Decisions 9. The Chief Justice: More Influential than Other Justices? 10. Can the Court's Decisions Be Predicted? 11. Evaluating the Process References Index

From Stonewall to the Suburbs? Toward a Political Economy of Sexuality

Abstract: INTRODUCTION In their articles,1 Carlos Ball and Sonia Katyal step back from the heat of the moment to place two recent United States court cases concerning the rights of sexual minorities - Goodridge v. Department of Public Health2 and Lawrence v. Texas3 - into a broader perspective. Ball takes up the dimension of time. Comparing the Massachusetts Supreme Court's decision in Goodridge to the U.S. Supreme Court's decision in Brown v. Board of Education,4 he examines the phenomenon of social and legal backlash against controversial judicial opinions in the arena of civil rights, and reminds us that backlash is foreseeable, for civil rights struggle in the United States typically consists of "moments of heartening progress followed by instances of discouraging setbacks."5 Katyal takes up the dimension of space, examining possible implications of the U.S. Supreme Court's decision in Lawrence for the civil rights struggles of sexual minorities in post-colonial nations, India in particular. Both Ball and Katyal are cautiously optimistic. Ball wants gay rights advocates not to despair over the recent state and federal legislative backlash against same-sex marriage, but to move the struggle from the courts to the culture, in order to persuade straight Americans that prohibitions on same-sex marriage are unacceptable restrictions on equality.6 Taking the long view, Ball argues that despite the current backlash, same-sex marriage advocates have won more than they have lost.7 Adopting the intonations of the civil rights movement, he exhorts gay and lesbian activists to win the "hearts and minds of straight Americans,"8 and, in the last line of his article, insists "that the backlash can be "overcome."9 Katyal, too, speaks with hope. She points out that the Lawrence Court did not grant protection to a "minority," but rather spoke in terms of privacy and liberty, principles that are broadly applicable to all persons.10 For Katyal, the Court in Lawrence quietly moved away from the equality-based, analogical identity reasoning that gay and lesbian activists have often been pressured into - "We are just like black people! Just like straight people!" - and toward a substantive vision of sexual self-determination, which Katyal names "sexual sovereignty."11 Though Katyal acknowledges the flaws of Lawrence - above all its connection of sexual sovereignty to the home, a site that many feminist/queer activists and theorists view as a place of danger rather than security12 - she nonetheless wishes to celebrate Lawrence as an anti-essentialist "triumph."13 Both articles are rich and thought-provoking, and there is much to praise in them. I think Ball and Katyal are right to place these court decisions in a larger context of civil rights struggle across both time and space. It is appropriate, for instance, to discuss these decisions as inseparable from questions of racial subordination and postcolonial struggle.14 It is also always appropriate to identify and celebrate openings of possibility and moments of hope. Commentary necessitates critique, however, and, in my role as commentator on these papers, I mean to offer a caution - not as a substitute but as a supplement to the posture of hope and celebration. I argue that a usefully corrective lens through which to see Brown, Lawrence, and Goodridge is the lens of political economy. This lens enables us to see different stories with different lessons than the ones Ball and Katyal extract. From a political economy perspective, Brown tells a story of the role law plays in accomplishing, to use Re va Siegel' s apt phrase, "preservation-throughtransformation."15 Through this lens, both Goodridge and Lawrence maybe seen as beacons of hope (as they surely are), but they can also be seen as invitations to what Andrew Sullivan calls (though to him it's a good, if slightly bittersweet, thing) "the end of gay culture":16 the end, that is to say, of a queer movement that means anything other than the reconsolidation of preexisting relations of privilege and subordination. …

The Supreme Court in the American Legal System

Abstract: The Supreme Court in the American Legal System. By Jeffrey A. Segal, Harold J. Spaeth, and Sara C. Benesh. New York: Cambridge University Press, 2005. 416p. 28.99 paper.If there is any example of a Kuhnian paradigm in political science, it would be the attitudinal model in Supreme Court decision making. Over a half century ago, C. Herman Pritchett boldly showed data that revealed “political” decision making by the justices of the nation's high court. Harold Spaeth was among the pioneers in this research and is now regarded as its strongest adherent. The justification for the Supreme Court Attitudinal Model, known to friends and foes alike by the acronym “SCAM,” is relatively simple: The preponderance of individual-level decision making can be explained as a function of the attitudes of the justices. Like the ideal model, it is parsimonious and explains a great deal of variance. Even those who have been critical of SCAM concede that the attitudes of the justices are the most important determinant of individual-level decision making at the Supreme Court level.

Blind or Biased? Justitia's Susceptibility to Anchoring Effects in the Courtroom Based on Given Numerical Representations

Abstract: This article presents an integrative review of recent research on anchoring effects in the courtroom as one example for the strong impact of representation norms on sentencing decisions. Anchoring effects – the assimilation of numerical judgments to a given standard – have been demonstrated in many judgmental domains. Even sentencing decisions are subject to anchoring effects. In court proceedings this gives disproportionate weight to the prosecutor, whose sentencing demand serves as an anchor. The prosecution’s sentencing demand even affects defense attorneys, who assimilate their own sentencing recommendation to it. This influence seems to remain outside of defense attorneys’ awareness. Expertise does not attenuate this bias. Accordingly, defendants might be better off if defense attorneys could make their final case prior to the prosecutor’s case. Sentencing demands that are presented in the courtroom may be seen as numerical representations of different perceptions of a given case. The prosecution expresses its view of the case via a concrete sentencing demand at the end of the trial process. Similarly, the defense summarizes its perspective by presenting a different sentencing recommendation. In the end, the judge decides on a specific sentence, which represents his final opinion about all the facts presented during the court proceedings. But to what extent do these numerical representations influence each other? In what way are the prosecutor’s sentencing demand, the defense attorney’s sentencing recommendation, and the judge’s decision intertwined? In this article, the focus is especially on the question of whether these numerical representations influence judicial decision making in an irrational or unexpected way. Anchoring effects in the courtroom may serve as an example of such numerical sentencing biases.

Intellectual freedom and libraries: complexity and change in the twenty-first-century digital

Abstract: What is the state of intellectual freedom and libraries in the early twenty-first-century digital environment? This question is addressed largely in relation to public and school libraries, where more than 90 percent of documented challenges exist and at which most legislative and judicial actions relevant to intellectual freedom and libraries are directed. Analyses of changing perceptions of the intellectual-freedom leadership role of women and children; of the relevant policy documents of the American Library Association; of recent legislation and judicial decisions, focused on both books and the Internet; and of the current public perception of libraries as a public good reveal the complexities and tensions that exist in the answer to this question. One possible explanation for the current state of intellectual freedom and libraries is offered through application of radical-change theory. Changes in research, education, and practice are suggested based on the conclusions from these analyses.

Modeling Motivations: A Method for Inferring Judicial Goals from Behavior

Abstract: The consensus among most scholars of American politics is that judges are policy seekers. Yet we know very little about what motivates judges in other parts of the world. To begin to address this gap, we develop a systematic method for inferring goals from behavior. Using a simple game-theoretic framework, we generate a series of testable propositions linking behavioral outcomes to goals for four ideal types of judges: loyalists, policy seekers, institutionalists, and careerists. We illustrate the power of our method with original data on individual and collective judicial decision making on the Argentine Supreme Court (1976–2000).

Strategy, careers, and judicial decisions: Lessons from the bolivian courts

Abstract: Using survey data from Bolivian trial courts, we explore the relationship between judicial decisions, career goals, and hierarchical pressures in continental legal systems. Based on a principal-agent approach, we hypothesize that inferior court judges are more likely to defer to superior courts when they share their interpretation of the law, when they anticipate reversals, and when they fear political manipulation of judicial careers. In turn, superior judges are likely to exercise informal pressures over inferior court judges who deviate from the former's legal views and do not anticipate their preferences. The conclusions emphasize the utility of survey research for the study of strategic compliance in judicial institutions.

Information, Litigation, and Common Law Evolution

Abstract: It is common in the legal academy to describe judicial decision trends leading to new common law rules as resulting from conscious judicial effort. Evolutionary models of litigation, in contrast, treat common law as resulting from pressure applied by litigants. One apparent difficulty in the theory of litigation is explaining how trends in judicial decisions favoring one litigant, and biasing the legal standard, could occur. This article presents a model in which an apparent bias in the legal standard can occur in the absence of any effort toward this end on the part of judges. Trends can develop favoring the better-informed litigant whose case is also meritorious. Although the model does not suggest an unambiguous trend toward efficient legal rules, it does show how private information from litigants becomes embodied in common law, an important part of the theory of efficient legal rules.

Same-Sex Relationships: From 'Odious Crime' to 'Gay Marriage'

Abstract: I FROM FELONY TO THE LOVE THAT IS PROUD TO SPEAK ITS NAME II PARTNERSHIP OR MARRIAGE: THE PROVISIONS OF THE CIVIL PARTNERSHIP ACT III THE FAMILY, PARTNERSHIP, AND THE JUDGES APPENDICES Text of The Civil Partnerships Act 2004, Parts 1 and 2, and Schedules 1 to 9 Report of the Committee on Homosexual Offences and Prostitution paras 1 - 147 and pp 130 - 135 Judicial Decisions Halpern et al v Attorney General of Canada et al, Court of Appeal for Ontario Lawrence v Texas, United States Supreme Court Hillary Goodridge & others v Department of Health and others, Supreme Judicial Court of Massachusetts Opinions of the Justices to the Senate, Supreme Judicial Court of Massachusetts Lofton v Secretary of the Department of Children and Family Services, United States Court of Appeals, Eleventh Circuit

Research Article: Cumulative Impact Assessment under the National Environmental Policy Act: An Analysis of Recent Case Law

Abstract: The assessment of cumulative impacts is one of the most difficult tasks a NEPA (National Environmental Policy Act) practitioner faces when preparing an Environmental Assessment or Environmental Impact Statement, and it recently has become an increasing focus area of legal challenges. Historically, federal agencies have a very poor track record in this litigation. This research examines 25 recent judicial opinions involving challenges to various NEPA documents' cumulative impact analyses, from the federal Ninth Circuit Court of Appeals. Challengers were victorious on their claims of inadequate analysis in 60% of the cases decided in the 10-year analysis period. In recent years, the success rate for challengers has risen even higher, to victories in eight of 11 cases (72%). The main reasons federal agencies have lost these court challenges is because they failed to present any cumulative impact analysis whatsoever in their NEPA document; they left out obvious past, present, or reasonably foreseeable future ...