Showing papers on "Majority opinion published in 1998"

The Public’s Conditional Response to Supreme Court Decisions

Abstract: To investigate the effect of the Supreme Court on public opinion, we offer the conditional response hypothesis based on a theory of Supreme Court legitimacy and a microlevel social-psychological theory of attitude formation. Together these theories predict that the Court may affect public opinion when it initially rules on a salient issue, but that subsequent decisions on the same issue will have little influence on opinion. To test our predictions, we analyze public opinion data before and after the Supreme Court ruled in a highly visible abortion case (Webster v. Reproductive Health Services [1989]) and before and after three key capital punishment rulings (Furman v. Georgia [1972], Gregg v. Georgia [1976], and McCleskey v. Kemp [1987]). The results suggest that our theory is not issue bound but is generally applicable to how the Supreme Court affects public opinion when it rules in highly salient cases.

Accuracy Motivation, Consensus Information, and the Law of Large Numbers: Effects on Attitude Judgment in the Absence of Argumentation

Abstract: This study examined the influence of majority opinion on attitudes in the absence of persuasive argumentation. Participants who were either high or low in accuracy motivation were presented with an opinion poll that conveyed consensus information and the sample size of the poll. According to the law of large numbers (LLN), large polls provide more reliable estimates of consensus than smaller polls. Results generally supported predictions. Less-motivated participants tended to be influenced by consensus regardless of poll size, whereas highly motivated participants based attitudes on this information only if the poll was reliably large. Thus, participants who were highly motivated seemed to appreciate the LLN when making their attitude judgments. Consistent with the heuristic-systematic model, process measures indicated that consensus influenced attitudes through both heuristic and biased systematic processing under high motivation, but it influenced attitudes only via heuristic processing when motivation ...

Do Attitudes Toward Specific Supreme Court Decisions Matter? The Impact of Webster and Texas v. Johnson on Public Confidence in the Supreme Court:

Abstract: In this article, we revisit the question of whether, and in what manner, attitudes regarding specific Supreme Court decisions influence subsequent levels of confidence in the Court itself. Analysis centers on the impact of the 1989 Webster abortion decision and Texas v. Johnson, the flag-burning edict released immediately prior to Webster. Using data from three Harris polls, one conducted just before the two decisions, and two conducted soon after, we design a quasi-experimental test in which data are ana lyzed using ordered logistic regression. Results demonstrate that agree ment with the rulings did affect perceptions of the Court, and that the pattern of effects is indicative of a negativity bias; that is, disagreement with one or both decisions substantially reduced confidence in the Court, but agreement with both edicts brought only a marginal gain in confi dence. Results also reveal that these effects did not decay in strength from the time of the first postdecision poll (conducted immediately after...

Marshalling the Court: Bargaining and Accommodation on the United States Supreme Court

Abstract: Theory: Supreme Court opinion authors make strategic calculations about the need to craft opinions that are acceptable to their colleagues on the bench. Hypotheses: The willingness of justices to accommodate their colleagues depends upon the size and ideological makeup of the majority conference coalition and the number of suggestions and threats issued by their colleagues. These strategic considerations are important even after controlling for a series of nonstrategic factors, such as case complexity. Method: To examine the extent of accommodation in Supreme Court cases, we examine the number of draft opinions circulated by the majority opinion author. We use a Generalized Event Count model to determine whether strategic or nonstrategic efforts influence the amount of accommodation that occurs. Results: We show that accommodation is influenced strongly by strategic concerns-including the size of the majority conference coalition, the ideological distance of the author from the majority coalition, the ideological heterogeneity of the conference majority coalition, and the positions taken by majority coalition members and by nonstrategic factors, including the author's workload and the complexity of a case.

The European Court of Justice: The Politics of Judicial Integration

Abstract: English translation of the French book version 'La cour de justice des Communautes europeennes', Montchrestien, 1994 (2707606081)

Of time and consensual norms in the Supreme Court

Abstract: Theory: We argue that levels of concurrence and dissent on the U.S. Supreme Court are functions of "consensual norms." These norms arise from, and are influenced by, the behaviors of the individual justices, including the actions of the chief justices. In turn, they cause concurrences and dissents to fluctuate around a common level. Hypotheses: If consensual norms are a substantial influence on the behavior of the Court, the long-run extent of concurrence and dissent on the Court will covary substantially, and will do so to varying degrees under different chief justices. Methods: To test our hypotheses, we use cointegration and error-correction analyses of the number of Supreme Court cases from 1800 to 1991 with concurring and dissenting opinions. Because of the dramatic increase in concurrences and dissents during the 1940s, we make use of recently-developed methods for detecting cointegrating relationships in the presence of structural breaks. Results: Consistent with our expectations, dissents and concurrences move together over time; thus consensual norms appear to influence substantially both concurrences and dissents on the Court. The effects of such norms vary in the long term under different Chief Justices.

Television News and the Supreme Court: All the News that's Fit to Air?

Abstract: List of tables Acknowledgements 1. Television news: a critical link between the Supreme Court and the American public 2. The Supreme Court beat: a view from the press 3. Television news and the Supreme Court: opportunities and constraints 4. A tale of two cases: Bakke and Webster 5. A tale of two terms: the 1989 and 1994 court terms 6. 'The Supreme Court decided today ...' - or did it? 7. Which decisions are reported? It's the issue, stupid! 8. Television news and the Supreme Court: all the news that's fit to air? Appendix: schedule of interviews Notes References Index.

Ambiguity, Distorted Messages, and Nested Environmental Effects on Political Communication

Abstract: In this paper we are concerned with the clarity of political signals transmitted through political conversation and the accuracy with which those signals are perceived. The social communication of political information is subject to distortion effects that arise due to skewed expectations on the part of the receiver and ambiguous representations on the part of the sender. Indeed, communication that occurs between two citizens might be distorted either by characteristics of the individuals who are transmitting and receiving messages, or by characteristics of the setting in which the information is being transmitted. We argue that the power of majority opinion is magnified by the inferential devices that citizens use to reach judgments in the face of ambiguous political messages and hence the use of a personal experience heuristic gives rise to a political bias that favors the continued dominance of majority opinion.

Measuring the Influence of Supreme Court Justices

Abstract: This empirical study measures the influence of ninety-nine retired Supreme Court justices, analyzing over 1.2 million citations to over 24,000 opinions of the Court written between 1793 and 1991. It models the appointment process as the selection of a capital investment, treating a justice's output as the precedents generated each term and using citations as a proxy for an opinion's value. This model is applied to the retired justices and their opinions, and its consistency is tested by independently analyzing citations by subsequent Supreme Court and circuit court opinions. Influence values also demonstrably track the results of a well-known survey of judicial greatness. The study challenges several common assumptions. Older appointees have been no less influential than young appointees, and, on an annual basis, older appointees have actually been more influential. Private attorneys have made the most influential appointees, and former judges show no special advantages.

The development of a legal rule : The federal common law of public nuisance

Abstract: Scholars from across disciplinary lines are interested in understanding legal development. One impediment to the quest for a systematic explanation has been measures of legal change. Indicators like whether a court overturns an earlier ruling capture one facet of legal change but fail to capture the full range of courts' actions to develop legal doctrine. I introduce an alternative measure of legal change here-one based on Levi's (1949) focus on whether factual circumstances are or are not encompassed by the law. I use the U.S. Courts of Appeals decisions on the federal common law of public nuisance to illustrate this measure. Utilizing a multinomial logit model to explore the appellate judiciary's decisions to develop this legal doctrine, I find that the judges' decisions to develop the federal common law are explained by the judges' policy preferences; the litigation environment consisting of party resources, attorney experience, and amicus support; as well as the broader political context of public opinion and Supreme Court rulings. Judicial scholars have not often systematically examined changes in the courts' policy product-legal rules (Epstein & Kobylka 1992; Walbeck 1997). While Spaeth (1965) and others (Peltason 1955; Schubert 1965) state their preference for moving away from doctrinal analysis, imbued as it often is in normative issues, the policy significance of legal rules adopted by courts has not been ignored. Indeed, Segal and Spaeth (1993:261) recognize that the Supreme Court's opinion "constitutes the core of the Court's policy-making process." This is because court opinions affect more than the parties to the current litigation. The rules articulated bv courts, like other institutions, guide behavior by providing information about mutual expectations and providing sanctions for noncompliance (Knight 1992). Hurst (1956), in discussing the development of law governing the institution of private property, maintained that "legal procedures and tools and legal compulsions. . . create a framework of reasonable expectations within which rational decisions could be taken for the future" (pp. 10-11). As Justice Holmes put it, a person's compliance with his or her legal duty is based on "a prophecy that if [that person] does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money" (1897:461). In this respect, court decisions derive significance from the impact of their rules on expected patterns of behavior and their sanctions for violations of those patterns. If the policy significance of court decisions lies in the legal rules they contain, it is important to understand what influences the law's development. Although there are numerous accounts of events surrounding important court decisions (see, e.g., Faux 1988; Friendly 1981; Kluger 1975; Lewis 1964), few systematic attempts have been made to examine legal development. Some scholars have studied the Supreme Court's decision to overturn past decisions (Brenner & Spaeth 1992; Kemper 1997; Spriggs & Hansford 1998). These studies examine explanations for whether the Court overturns a particular decision. Epstein and Kobylka (1992) examine doctrinal change in the Supreme Court's abortion and capital punishment decisions, exploring the influence of the Court's composition, the political environment, and the arguments presented to the Court by the litigants and amici. I have developed a measure of legal change and applied it to the Supreme Court's search and seizure decisions to test the influence of judicial preferences, the litigation environment, and the political environment (Wahlbeck 1997). These studies all investigate legal development in the Supreme Court but overlook the substantial role played by lower federal courts in the formation of legal doctrines. As reflected in the judicial impact literature, much of legal development occurs in the lower courts. The judicial impact literature reveals that lower courts often have substantial authority to modify the law (Mather 1995; Murphy 1959). …

Judges as Advicegivers

Abstract: Since Alexander Bickel, scholars have understood the Supreme Court to have a threefold power: striking down acts for unconstitutionality, legitimating them, or employing the passive virtues. Professor Katyal contends that the Court wields a fourth power: advicegiving. Advicegiving occurs when judges recommend, but do not mandate, a particular course of action based on a concern for rule or principle. Courts have been giving advice, consciously at times, unconsciously at others, and this article seeks to provide a normative justification for the practice. Professor Katyal breaks down advicegiving into several categories and explains how advice, when given to the political branches, can engender a colloquy that maximizes respect for the coordinate branches while also serving the goals offederalism, enhancing political accountability, and encouraging judicial candor. In particular, Professor Katyal explains how advicegiving can become an alternative to aggressive forms of judicial review while simultaneously maintaining constitutional fidelity.

The Supreme Court, 1888–1940: An Empirical Overview

Abstract: Studies of decision making on the modern Supreme Court have drawn on readily available empirical data to explore the details of how the Court conducts its business (Segal and Spaeth 1993; Spaeth 1995). Sadly, however, such empirical studies have not been plentiful for periods of the Court’s history before the appointment of Chief Justice Earl Warren. Some discussion has occurred dating from the chief justiceship of William Howard Taft beginning in 1910, but these studies have limited scope (Bowen and Scheb 1993; Leavitt 1970; Pritchett 1948; Renstrom 1972; Slotnick 1979; Tate and Handberg 1991). The result is a plethora of studies concerning the modern Court and a dearth of systematic information on earlier Courts (Aliotta 1988; Brenner and Spaeth 1995; Epstein and Kobylka 1992; George and Epstein 1992; Handberg 1976; Schubert 1965, 1974; Segal 1984; Tate 1981; Ulmer 1970). The picture we do have concerning earlier Courts is largely drawn from biographical or doctrinal studies. While both of these enterprises are immensely useful, they lack the systematic quality of an empirical analysis that considers all cases (not just the important ones) and all justices (not just the intellectual or social leaders). We seek to create an empirical context out of which those outstanding justices and decisions arose. Our study allows confirmation of findings of previous studies of individuals and doctrine and provides a more complete picture of the Court during a tumultuous time in its history.

Tadic, the Anonymous Witness and the Sources of International Procedural Law

Abstract: On May 7, 1997, Trial Chamber II of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia released its verdict in its first trial. While the proceedings of the International Tribunal were commended for their fairness, criticism quickly erupted as a result of the Trial Chamber's decision to allow anonymous testimony to be used in the Tadic trial. This article explores the Trial Chamber's decision to allow the use of anonymous testimony as a protective measure. It focuses on the challenge of defining the sources of procedural law to apply in making procedural and evidentiary determinations. Both the majority opinion of Judge McDonald and the dissenting opinion of Judge Stephen reveal that the role of international standards in procedural decision-making is a deeply contested and unsettled area of international procedural law.

Lochner v. New York: Economic Regulation on Trial

Abstract: "Lochner v. New York" (1905), which pitted a conservative activist judiciary against a reform-minded legislature, remains one of the most important and most frequently cited cases in Supreme Court history. In this concise and readable guide, Paul Kens shows us why the case remains such an important marker in the ideological battles between the free market and the regulatory state. The Supreme Court's decision declared unconstitutional a New York State law limiting bakery workers to no more than ten hours per day or sixty hours per week. By evoking its "police power," the state hoped to eliminate the employers' abuse of these workers. But the 5-4 majority opinion, authored by Justice Rufus Peckham and renounced by Justice Oliver Wendell Holmes, cited the state's violation of due process and the "right of contract between employers and employees," which the majority believed was protected by the Fourteenth Amendment. Critics jumped on the decision as an example of conservative juidicial activism promoting laissez-faire capitalism at the expense of progressive reform. As series editors Peter Hoffer and N.E.H. Hull note in their preface, "the case also raised a host of significant questions regarding the impetus of state legislatures to enter the workplace and regulate hours, wages, and working conditions; of the role of courts as monitors of the constitutionality of state regulation of the economy; and of the place of economic and moral theories in judicial thinking." Kens, however, reminds us that these hotly contested ideas and principles emerged from a very real human drama involving workers, owners, legislators, lawyers, and judges. Within the crucible of an industrializing America, their story reflected the fierce competition between two powerful ideologies.

The Competence of International Organizations and the Advisory Jurisdiction of the International Court of Justice

Abstract: The International Court of Justice's 1996 Nuclear Weapons Advisory opinions raise a number of questions relating to the competence of international organizations and the Court's own advisory jurisdiction. The author argues that actions of an international organization directed at achieving the fulfilment of the purposes of the organization and which would promote its effectiveness are within the implied powers of the organization. Thus, the decision that the WHO had no competence to deal with the leglity of nuclear weapons (or other hazardous substances) departs from the established law, including the Court's previous jurisprudence. It is argued that a broad, rather than a narrow, competence for international organizations is more consistent with principle and practice as well as with the Court's jurisprudence. In relation to the Court's advisory jurisdiction, the author argues that (contrary to the implications in the WHO opinion,) it is always within the competence of UN specialized agencies to seek opinions on the interpretation of their constitutions and that requests from the General Assembly do not have to relate to the work of that organ. The concluding section sets out the circumtances in which the Court ought to exercise its discretion to refuse to render an opinion requested of it It is argued that the fact that a request relates to an abstract question, unrelated to any particular factual situation, ought not to debar the Court from exercising its jurisdiction. However, the Court ought to decline to provide an opinion where It does not have before it sufficient factual material to enable it to form an opinion or where It is in danger of giving an incomplete answer that can be misconstrued.

An Integrated Model of Privacy Decision Making in State Supreme Courts

Abstract: This study predicts state supreme court judges' votes on claims based on a right to privacy by estimating an integrated model that incorporates contextual, attitudinal, and legal variables, includi...

Judicial Review and Political Accountability: The Case of the High Court of Justice in Israel*

Abstract: The inter-relation between government policies, public opinion and court decisions are the subject of intense discussion in academic literature. Constitutional theorists maintain that courts are required to defend individual rights, especially minority rights. Courts are also expected to refrain from excessive interference in decision-making processes conducted by the other two branches of government. Both these themes are derived from the assumption that courts, unlike the legislature and the executive branch, are not representative institutions. They are not required to reflect the preferences of the majority in their decisions. Rather, the reverse is expected: to confront decisions which endanger the rights of minorities. The “success” of courts in maintaining their institutional autonomy — according to this view — is evaluated by their ability to withstand political pressures and effect their counter-majoritarian role.Political scientists, on the other hand, are concerned with the extent to which courts in fact fulfill this counter-majoritarian role. Some argue that the counter-majoritarian function of the court is no more than a doctrinal aspiration, perhaps even a myth. Constitutional courts, they argue, serve more to legitimize socio-political reforms and broader cultural propensities which were previously endorsed by the political establishment and public opinion, than to confront majoritarian decisions. Others maintain that, while courts are not wholly insulated from public opinion, they still manage, on many occasions, to retain their institutional autonomy vis-a-vis political pressures.

Nuclear weapons and the World Court

Abstract: Is the threat or use of nuclear weapons ever permissible? This question was, at the request of the United Nations General Assembly, put before the International Court of Justice in 1996 for an advisory opinion. An evenly divided Court concluded that "the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law" -not an outright condemnation, but certainly strong enough to set in motion the serious initiative to outlaw nuclear weapons currently before the nations of the world. The Court's advisory opinions are considered non-binding, and yet this is the only statement by the world's highest tribunal on this question. Thus, as the only authoritative pronouncement on the subject, it carries great weight for the future of nuclear weapons and international law itself. In a broader sense, the Court's Opinion has considerable significance regarding the future of the international order and even the survival of humanity. In an historical context, the authors of this deeply engaged book examine the Court's Opinion and the logic leading to its conclusion. They study the implications of the Opinion for the future of nuclear weapons policy, the law of armed conflict, and the role of the Court's advisory jursidiction, especially on issues that affect the future of humanity. They also study separate and dissenting opinions, as well as the role of citizens groups in bringing this crucial question before the Court.

Two Different Worlds: The Relationship Between Elite and Mass Opinion on American Foreign Policy

Abstract: In June 1989, when Chinese citizens were massacred at Tiananmen Square, and in August 1991, when antireform Communists attempted to lead a coup against Soviet President Mikhail Gorbachev, the American public in unusually high numbers paid attention to the crises; the public s views on policy matters were recorded in public opinion surveys; press coverage of both crises was exhaustive; and elite opinion about U.S. policy was widely aired through the media, exposing the American public to the full spectrum of elite opinion. In both cases elite opinion (voiced in the media and measured through content analysis) was compared with public opinion (measured in public opinion surveys) to test the theories of Walter Lippmann and others that the elites lead public opinion about American foreign policy. In neither case could the dependence of mass opinion on elite opinion be demonstrated. The two bodies of opinion appear to have formed and been expressed in two different, nonoverlapping worlds.

Judicial Sentencing Policy, Criminological Expertise and Public Opinion*:

Abstract: The first part of this article asks whether judicial sentencing can be regarded as founded on a well-informed policy. An analysis of the character of sentencing policy as it is to be found in sente...

Seriatim: The Supreme Court Before John Marshall

Abstract: Seriatim: The Supreme Court Before John Marshall Edited by Scott Douglas Gerber. (New York: New York University Press, 1998. Pp. xi, 362. $50.00.) The custom of English appellate courts was that participating judges wrote and delivered orally individual opinions in cases before the court. This practice, known as "seriatim" opinion writing, was adopted in early American appellate courts, including the United States Supreme Court. John Marshall thought the authority of the Supreme Court would be enhanced if it spoke with one voice, so the practice was abandoned early in his tenure as chief justice. Seriatim was appropriately selected the title for this useful collection of essays on Supreme Court justices appointed before Marshall's ascendancy to the high court. The title underscores that, before Marshall's appointment, the justices almost always spoke as individuals. The demise of "seriatim opinion writing meant that the contributions of individual justices were difficult, if not impossible, to discern" (20). This volume covers a much-neglected chapter of American judicial history and effectively dispels the notion that the Court made few substantive contributions to American law and politics prior to Marshall. The collected essays explore the constitutional and political thought of ten Supreme Court justices in the Court's first decade. With the exceptions of Thomas Johnson and Alfred Moore, a chapter is devoted to each justice who served prior to Marshall. Each chapter includes a brief biographical sketch and outlines the main contours of the profiled justice's political and judicial philosophy. A superb company of senior and junior scholars, representing the disciplines of history, law, and political science, contributed to the volume. Among the contributors are leading historians of the American judiciary and authorities on the profiled judges. Although the chapters are similarly structured, diverse disciplinary perspectives and methodological approaches are reflected in the collected essays. Seriatim: The Supreme Court Before John Marshall is as much about the founding of the American Republic in general as it is about the creation of judicial institutions in particular. Several profiled justices, such as James Wilson, William Paterson, and Oliver Ellsworth, were founding fathers both of the Republic-its political charters and institutions-and of the federal judiciary. Their contributions to the judiciary were made both on and off the bench. For example, as principal framers of the Judiciary Act of 1789, which shaped the federal judiciary, Ellsworth and Paterson made a significant contribution to the judiciary independent of their Supreme Court service. Most of these jurists were prominent figures in the Constitutional Convention (most notably Wilson, Ellsworth, Paterson, and John Rutledge) and/or their respective state ratifying conventions (notably William Gushing in Massachusetts, James Iredell in North Carolina, and Wilson in Pennsylvania), and their tenure on the high court merely capped the pursuits and themes of earlier political lives. Although substantial attention is appropriately focused on political service, each chapter includes a discussion (sometimes brief] of the jurists' involvement in leading cases, including participation in lower court proceedings as judge or advocate. A few among the profiled justices, in candor, exercised negligible influence on federal constitutional law or the Supreme Court as an institution. Prior to Marshall's ascendancy, the role of Supreme Court justices was very different than from today. …

General Electric Co. v. Joiner: lighting up the post-Daubert landscape?

Abstract: The U.S. Supreme Court considered an appeal by the defendant, General Electric Co., in a products liability action. The appeal resulted from the ruling by the Court of Appeals for the Eleventh Circuit that overturned the district court's exclusion of evidence of cancer causation. The Supreme Court held that questions of the admissibility of such evidence are reviewable under the same standard--abuse of discretion--as are other decisions regarding evidentiary issues and are not subject to a more stringent standard of review. The Court further held that whether or not the evidence is excluded or is dispositive of the case does not change this standard of review. The Court then examined and upheld the decision by the trial court rather than remanding the action to the circuit court for reconsideration in light of the decision. Coupled with a series of recent circuit court of appeals decisions, the case establishes some guidance for the basis and methodology to be used to admit social science evidence in future cases.

Reframing the Misappropriation Theory of Insider Trading Liability: A Post-O’Hagan Suggestion

Abstract: For almost two decades, the United States Supreme Court was silent as to the validity of the so-called 'fraud on the source' misappropriation theory of insider trading liability. This changed in June 1997 when the theory received a resounding endorsement from the Court in United States v. O'Hagan. Critics of O'Hagan have argued that the Court's decision reaches too far. However, this Article contends that the Court actually endorsed a theory that does not reach far enough. By analyzing and critiquing the reasoning of the majority opinion in O'Hagan, this Article demonstrates that the Court's unnecessarily restrictive misappropriation theory will frustrate the prosecution of future cases involving trading on misappropriated information and may generate public mistrust of the SEC. This Article suggests a broader 'fraud on investors" version of the misappropriation theory, contending that investors in the marketplace are also deceived and defrauded when a person purchases or sells securities based on material, nonpublic information that has been misappropriated from the information's source.

Explorations in Public Opinion-Presidential Power Linkages: Congressional Action on Unpopular Foreign Agreements

Abstract: This article explores the effect of public opinion on congressional action on foreign agreements, focusing on the Panama Canal treaties of 1977 and the North American Free Trade Agreement of 1993. The two agreements are highly suited to comparison, and provide an excellent test of how shifts in public opinion influence shifts in congressional support. Two types of opinion are included: (1) the general rating of the President's job performance, and (2) opinion on the foreign agreement being debated in Congress. Using quantitative methods, I test the respective influence of each of these types of opinion on congressional action. Both types of public opinion are regressed on head counts and votes taken on the two agreements, with the expectation that the more specific opinion data will be more influential.