Showing papers on "Majority opinion published in 1999"

Court Performance around the World: A Comparative Perspective

Abstract: Increasing importance has been placed on an effective and efficient judiciary by governments and civil society. However, apart from decisions that they render, little is known about court performance trends. The judicial reform experiences so far have made it clear that more information is needed to review and compare trends among different countries. This paper addresses the efficiency aspect of court performance, as it can be quantitatively measured using objective data. In addition, congestion, cost, and delay are some of the problems most often complained about by the public. This paper reviews data collected from eleven countries on three continents and provides a description of performance. The main areas of comparison include the number of cases filed, resolved, and pending per judge, the clearance and congestion rates, time to resolve a case, the number of judges, and the cost of a case. The paper also reviews the recent trends within each country and discusses some possible reforms.

In Defense of a Political Court

Abstract: Can the Supreme Court be free of politics? Do we want it to be? Normative constitutional theory has long concerned itself with the legitimate scope and limits of judicial review. Too often, theorists seek to resolve that issue by eliminating politics from constitutional decisionmaking. In contrast, Terri Peretti argues for an openly political role for the Supreme Court.Peretti asserts that politically motivated constitutional decisionmaking is not only inevitable, it is legitimate and desirable as well. When Supreme Court justices decide in accordance with their ideological values, or consider the likely political reaction to the Court's decisions, a number of benefits result. The Court's performance of political representation and consensus-building functions is enhanced, and the effectiveness of political checks on the Court is increased. Thus, political motive in constitutional decision making does not lead to judicial tyranny, as many claim, but goes far to prevent it. Using pluralist theory, Peretti further argues that a political Court possesses instrumental value in American democracy. As one of many diverse and redundant political institutions, the Court enhances both system stability and the quality of policymaking, particularly regarding the breadth of interests represented.

Inviting Congressional Action: A Study of Supreme Court Motivations in Statutory Interpretation

Abstract: Theory: The Supreme Court's occasional "invitations" to Congress to reverse the Court's statutory decisions challenge two influential theories of the Court's behavior and thus merit attention. Hypotheses: Three altemative explanations for invitations are posited: low interest in certain cases on the part of the justices, a desire to maintain the Court's institutional standing, and a desire to achieve both good policy and good law. Methods: These altemative explanations are tested through a logit analysis of the Court's statutory decisions in the 1986 through 1990 terms; the dependent variable is the presence or absence of what we call a strong invitation to Congress in the majority opinion. Results: The results of the analysis give greatest support to the hypothesis that justices have an interest in achieving both good policy and good law. This finding underlines the need to take the Court's invitations into account in the debate over the impact of legal and policy considerations on Supreme Court decisions.

The International Criminal Court: a American view

Abstract: The international community has been chastened by the recent record of brutal civil wars. Violation of humanitarian standards has become a tactic of war. The attempt to strengthen enforcement of the law of war through a permanent international criminal court is thus a signal event. The negotiations conducted in Rome in 1998 did not solve all the difficulties that attend a permanent court. These include the problem of amnesties in democratic transitions, the necessary role of the Security Council in UN security architecture, the conflict between broad jurisdiction and developing the law, the role of consent as a treaty principle and third party jurisdiction, the handling of treaty amendments, and the inclusion of 'aggression' as a crime with no agreement on its definition. The necessary role of the United States in providing effective enforcement of ICC judgments warrants continued negotiation to overcome these differences.

The Opinion-Policy Relationship in Canada

Abstract: This note examines the consistency between Canadian public opinion and public policy over the period 1968-93 by matching responses to national survey questions on 348 issues with enacted public policy proposals on the same issues. Multivariate tests are used to explore the opinion-policy relationship in regard to the impact of issue salience, the extent of majority opinion, the type of issues (redistributive vs nonredistributive), various policy domains, and the partisan composition of government. There is little evidence of direct influence of public opinion on policy. Unlike previous results on the opinion-policy relationship in European countries, there is no evidence that organized elite groups and "bourgeois" political parties have been an obstacle to government enactment of mass preferences on redistributive issues. However, the findings strongly suggest that the change of government from Trudeau to Mulroney had an impact on consistency in regard to the economy.

Judicial Choice and the Politics of Abortion: Institutions, Context, and the Autonomy of Courts

Abstract: The power of courts to thwart the will of the popularly elected branches of government and to stand in direct contradistinction to the dominant political alliance has fascinated scholars of American politics since the nation's inception Although courts have been idealized as barriers to majority tyranny because of their seeming willingness to confront legislative majorities through the power of judicial review, serious questions have been raised about the actual nature of courts' countermajoritarian function and, in particular, the conditions under which courts are willing to challenge legislative majorities When are courts likely to take on legislatures in the game of separation of powers/checks and balances? Or, stated more broadly, to what extent are courts autonomous institutions whose functions are impervious to conditions in the external political environment? After all, the countermajoritarian function and the autonomy of courts are hampered if courts, or the individual judges casting votes in the cases, fear legislative sanctions and defer to legislative preferences to avoid them This Article seeks to explore fundamental questions about the nature of inter-institutional conflict by examining all cases decided since Roe v Wade(1) by state supreme courts in which direct challenges to state statutes regulating abortion services were raised As institutions with a diversity guaranteed by jurisdiction, state supreme courts are subject to virtually every force likely to affect judicial choice(2) Consequently, they offer an ideal laboratory for testing relevant contextual hypotheses Similarly, the abortion issue provides a manageable, yet highly charged, specimen with which we can conduct our analysis(3) In response to concerns about the basis of inter-institutional conflict with the courts, two different conceptualizations of courts as institutions have emerged in the scholarly literature based on studies of the United States Supreme Court(4) First, scholars working within the framework of attitudinal theory have posited that the Supreme Court is a highly autonomous institution whose decisions essentially reflect the aggregation of preferences of its members(5) Because various institutional arrangements (eg, lifetime tenure) insulate the Court from sanctions, the Supreme Court lacks incentives to respond to forces in the external environment, including Congress, except on the rarest of occasions(6) Given the highly insular nature of the Court, individual justices are free to cast votes in accordance with their preferences on issues of public policy(7) Therefore, the Supreme Court only overturns statutes under conditions where the preferences of the Court majority and Congress merely conflict, without reference to exogenous factors(8) Alternatively, scholars working within the rational choice framework have offered another conceptualization of the relationship between the Supreme Court and Congress that poses a serious challenge to the widely accepted principle of judicial autonomy and purely attitudinal voting(9) Positive theorists have argued that even when preferences conflict, the Supreme Court frequently will acquiesce to the legislative majority when the Court anticipates some possible reprisal or sanction for its actions(10) One particularly important reprisal is subsequent statutory revision Stated differently, positive theorists model the preferences of Congress as a significant constraint on judicial choice in the nation's highest court, and the power of Congress as a limit on the autonomy of the Supreme Court(11) While these two alternative perspectives on the status of the United States Supreme Court will continue to be debated as new evidence is brought to bear on the issue, some very recent research raises serious doubts about the utility of models derived from positive theory for explaining the Supreme Court's interaction with Congress(12) In a highly thought-provoking paper, Jeffrey Segal presents a convincing case that assumptions about the insularity of courts are theoretically sound and empirically correct for the Supreme Court, even in matters of statutory interpretation …

Bargaining on the U.S. Supreme Court: Justices' Responses to Majority Opinion Drafts

Abstract: Supreme Court opinions contain legal rules with broad policy ramifications, and justices try to shape the substance of the Court's opinions. Despite this expectation, scholars have neither systematically measured nor explained the extent to which justices attempt to affect majority opinions. We articulate and test a model that explains how justices respond to majority opinion drafts. Our argument is that justices decide how to respond based on the effect a choice will have on securing their policy goals. The costs or benefits of a choice, moreover, are a function of strategic and contextual factors, including a justice's agreement with an opinion, the collaborative decision-making setting on the Court, case characteristics, and attributes of the justices. Our data analysis strongly supports our argument showing that, among other considerations, justices' responses result from their disagreement with an opinion, the author's prior level of cooperation with them, and the salience of a case.

Jeremy Bentham and the Public Opinion Tribunal

Abstract: Well-known as the father of utilitarian philosophy, Jeremy Bentham (1748-1832) is less well-known as a pioneer theorist of public opinion. His work on the subject in the early nineteenth century was the first to tolerate the indeterminacy of public opinion in a liberal democracy. Where previous theorists had tried to specify the content of a "true" or "correct" public opinion, and most did so by imposing conditions on membership in "the public," Bentham argued that the public opinion necessary in a representative democracy must be unfettered and inclusive. For Bentham, the Public Opinion Tribunal, constantly judging government, was the most important social institution in preventing "misrule." As a liberal, Bentham championed public opinion as inherently progressive: he thought it would eventually coincide with his utilitarian ethical standard, the greatest happiness of the greatest number. Its operation, however, depends on the freedom of the press to investigate and publicize government actions in order to facilitate a form of public debate mediated through newspapers. Considered broadly, Bentham's public opinion has much in common with the arguments of much recent empirical work on the subject, such as Page and Shapiro's The Rational Public, Stimson's Moods, Cycles, and Swings, Popkin's The Reasoning Voter, and Zaller's The Nature and Origins of Mass Opinion. The theory is, however, dated by its inability to adequately consider some of the problems that occupy modern theorists of public opinion: deliberation, rational ignorance, media vacuity or manipulation, and the tyranny of the majority. For British observers in the early nineteenth century, the United States turned out to be a massive natural experiment in politics. Even Jeremy Bentham, whose confidence in his great projects was never in doubt, beFRED CUTLER is a doctoral candidate in political science at the University of Michigan and research associate at the Centre for the Study of Democracy, Queen's University, Canada. The author would like to thank Laura Moss, J. A. W. Gunn, and Kim Smith for comments that strengthened the article immeasurably; Maurice Cutler and Bob Burge for computing support; and George Perlin for providing a home for this research. This work was generously supported by a Social Sciences and Humanities Research Council of Canada doctoral fellowship and by a Donald Matheson Springer fellowship from the University of Toronto. Public Opinion Quarterly Volume 63:321-346 ? 1999 by the American Association for Public Opinion Research All rights reserved. 0033-362X/1999/6303-0001$02.50 This content downloaded from 157.55.39.215 on Wed, 31 Aug 2016 05:15:33 UTC All use subject to http://about.jstor.org/terms

Homosexuals and the Military: An Analysis of the Spiral of Silence

Abstract: This study examines Elisabeth Noelle-Neumann's spiral of silence theory in terms of the controversial issue of whether homosexuals should be allowed to serve in the U.S. military. The study tests the theory's hypotheses in light of a content analysis of the media's treatment of the issue. The findings offer tentative and qualified support for Noelle-Neumann's theoretical propositions about the relationship between individuals' perceptions of the issue and the media's tenor of the issue. The study departs from previous research by examining the influence of the media at different stages in the spiral of silence model. Results suggest that the mass media may have separate but similar effects on perceptions of majority opinion and personal opinions. Results further reveal that, in certain situations, individuals who feel that their position is beginning to lose public support may feel compelled to voice their opinions.

Beyond Unions and Collective Bargaining

Abstract: Franklin D. Roosevelt appointed ten justices to the U.S. Supreme Court - more than any president except Washington - and during his presidency from 1933 to 1945, the Court gained more visibility, underwent greater change, and made more landmark decisions than it had in its previous 150 years of existence. FDR challenged, confronted, and ultimately transformed the Supreme Court from a conservative, anti-interventionist institution opposed to government involvement in the economy to a liberal, activist Court that expanded government powers, protected civil liberties, and promoted civil rights. This collection of ten essays examines FDR's influence on the Supreme Court and the Court's growing influence on American life during his presidency. Subjects include the court-packing fight of 1937, the impact of the New Deal on the Court, key FDR appointments (Hugo Black, Felix Frankfurter, and William O. Douglas), and the Roosevelt Court's enduring legacy.

The Origins of Judicial Review Revisited,or How the Marshall Court MadeMore out of Less

Abstract: Alexander Hamilton called the judiciary the "weakest branch" of the three branches of government,1 but today we know better. To us not only does the unelected, life-tenured federal judiciary seem remarkably strong, but at times it actually seems bolder and more capable than the two elective branches in setting social policy. Certainly the federal judges, and especially the Justices of the Supreme Court, precisely because they do not have periodically to face an electorate, exercise an extraordinary degree of authority over our society and culture. The Supreme Court not only sets aside laws that popularly elected legislatures pass, but also interprets and construes the law with a freedom that sometimes is virtually legislative in scope. But it is not just the Supreme Court and other federal courts that are so powerful. Even the state courts, many of which are elected periodically, are extremely influential. Indeed, as Charles Ingersall pointed out as early as 1826, no where else in the modem world do courts wield as much power in shaping the contours of life as do the American courts.2 We have usually given the name "judicial review" to this sweeping judicial authority. But if by judicial review we mean only the power of the Supreme Court and of other courts to set aside legislative acts in violation of the Constitution, then the term is too narrow, for voiding legislation is only the most prominent part of a broader manipulative power that courts exercise over wide areas of American life. Commentators often have given the major responsibility for creating this power of judicial review to John Marshall, the great Chief Justice of the United States who served from 1801 to 1835. Marshall, nearly everyone acknowledges, was the greatest Chief Justice in American history. During his long career as Chief Justice of the Supreme Court, which spanned the administrations of five presidents, he helped to lay the foundations for both the Supreme Court's eventual independence and the constitutional supremacy of the national government over the states. But more important, at a stroke, his decision in Marbury v. Madison3 was supposed to have created the practice of judicial review. Even a constitutional scholar as sophisticated as Alexander M. Bickel thought that Marshall had done it all. "If any social process can be said to have been 'done' at a given time and by a given act," Bickel wrote in 1962, "it is Marshall's achievement. The time was 1803; the act was the decision in the case of Marbury v. Madison."4 Perhaps this is the way that many lawyers and jurists prefer to explain things. Perhaps they like to ransack the past in order to discover specific moments or concrete precedents, usually court decisions, which created important subsequent judicial practices and processes. The problem with this jurisprudential and unhistorical way of thinking is that it leaves its practitioners vulnerable to critics who can find other, more important precedents and moments in accounting for a practice or process. This has been the case recently with Marshall and judicial review. A number of revisionist legal scholars, including Christopher Wolfe, J. M. Sosin, and Robert Lowry Clinton, have argued that Marshall, in Marbury v. Madison or elsewhere, did not create the modern practice of judicial review.5 These revisionist scholars contend that the origins of judicial review can best be located in the years following the Marshall Court, in the post CivilWar era at the end of the nineteenth century. In these years, revisionist scholars argue, the modem image of the greatness of the Marshall Court was elaborated and expanded, culminating in Albert J. Beverage's monumental four-volume Lofe of John marshall.6 Not until the late nineteenth century did the Supreme Court cite the Marbury decision as a precedent for judicial review, and only in 1910 did the distinguished historian of the judiciary Edward Corwin actually com the term "judicial review. …

Science Court: A Case Study in Designing Discourse to Manage Policy Controversy

Abstract: Disagreement among experts is important to scientific progress, but it creates a dilemma for decision-makers who often depend on the authority those experts to render decisions. When experts disagree there seems to be no good way to incorporate expertise into decision-making. This study examines the "Science Court" proposed to facilitate the resolution of policy controversies involving expert disagreement. Science Court is examined here as a communication tool designed to (1) resolve disputes among experts so that (2) policy decision-making can proceed.The concern lies not so much in Science Court's design but with the rationale about designing communication tools to facilitate policy deliberations reflected in Science Court's design. Science Court The Science Court is an invention that makes a significant promise. It is designed to relieve decision-makers from the predicament of resolving differences in expert opinions when they are not themselves experts. Such an invention would be fortunate in an era where policy decisions are heavily dependent on expert authority but where expertise is fragmented among many competing disciplines. The Science Court, first proposed in the mid-1970s, is a procedure designed to improve the way experts and non-experts communicate in decision-making. The Science Court designers believed that the use of expertise in policy decision-making typically resulted in quarreling. This produced a"veil of disagreement" over factual matters that confused decisionmakers and invited opportunism by the powerful to influence decisions in their favor (Task Force, 1976). The court is designed to transform the escalation of expert claims and counter-claims in decision-making from quarreling that Mark Aakhus is an assistant professor of Communication at Rutgers University's School of Communication, Information, and Library Studies. His research addresses the role of communication and technology in learning, decision-making, and conflict-management. An earlier version of this article appeared in Argument and Values Proceedings of the Ninth SCA/AFA Conference on Argumentation, edited by Sally Jack

The European Court of Justice, More than a Teleological Court

Abstract: The judgments of the Community judicature are often subject to intense scrutiny by the media and by academic writers. The European Court of Justice, in particular, is regularly accused of being by and large an “activist” court, namely a court that construes EC law in the light of the objective the judges are trying to pursue. In particular, it is argued that the European Court uses the teleological method of interpretation to enhance the effectiveness of Community law at the expense of the written legal texts. Several studies have been published on the supposed “activist” role of the European Court and as many (or more) have been written in defence of the Court. The common denominator of all these works is that they are selective.

Litigating Federalism: The States Before the U.S. Supreme Court

Abstract: Introduction The States and the Commerce Power A Federalist Jurisprudence? The Evolution of Advocacy: The Offices of State Attorney General Patterns of State Participation Before the Court A Model of State Participation Before the Court The Recent Court and the Pro-State Bloc Conclusion Appendices Table of Cases Bibliographical Essay Bibliography Index

A Practical Companion to the Constitution: How the Supreme Court Has Ruled on Issues from Abortion to Zoning

Abstract: This is the most comprehensive and readable one-volume reference book in print, accessible to lay readers and specialists alike, on the meaning of the American Constitution as the Supreme Court has interpreted it. It is an indispensable tool for students and lay persons who want to understand today's constitutional controversies and their background in our history. It is equally useful to lawyers and other specialists who seek quick reviews of constitutional issues with immediate reference to cases for further research. Unlike conventional treatises that discuss the Constitution clause by clause or under a few broad concepts, this book uniquely treats every aspect of the Constitution and every constitutional topic in alphabetical order, in more than 1,000 short essays. It is extensively cross-referenced and exhaustively indexed, so that even a reader with only a minimal notion of the Constitution or constitutional law can quickly find clear answers to questions about pressing issues of the day. Among the other unique features: a set of introductory essays on the background of the Constitution and the many difficulties of interpreting it; a concordance to each word and phrase in the Constitution; a year-by-year chronology of justices who have served on the Supreme Court; and, a table of the more than 2,650 Supreme Court cases from 1792 to the present referred to in the book, listing the vote, the author of the majority opinion, the concurring and dissenting justices, and the length of the opinions.

The Supreme Court as a Policy Arena: The Strategies and Tactics of State Attorneys General

Abstract: Presently, state governments are more active and more successful in the U.S. Supreme Court than at any time since the New Deal. These rates of activity and success are a function of two coincident forces—the emergence of the Republican Court and the increased capacity of the states to pursue their policy goals aggressively before the High Bench. In this analysis, we seek to offer a better-defined portrait of the states’ evolving advocacy in the Supreme Court. Using archival and survey data, we find that, as a group, the states are more capable Supreme Court litigators, that their perceptions of the Republican Court have encouraged them to increase their pursuit of policy goals through litigation, and that they are “procedurally rational”—i.e., their estimates of success enter into their decisions to engage the Court.

Issue Fluidity and Agenda Setting on the Warren Court

Abstract: While justices have considerable discretion in the picking and choosing between cases in the creation of their agenda, how much discretion do they exercise in the picking and choosing between the issues that were presented by the parties, or even in developing new issues? Given the Warren Court's reputation for articulating broad rules that went beyond the particular circumstances of an individual case, especially in the area of civil rights and liberties, we would expect that this issue fluidity, particulary the expansion of issues, occurred with some frequency during this era. With an analysis of a random sample of 200 cases from the Warren Court, I found that the justices developed new issues in about one-fourth of all cases, while they suppressed issues that had been fully briefed and argued in over half of all cases. In addition, surprisingly, the Warren Court tended to suppress issues in civil rights and civil liberties cases, rather than expand them.

Kumho Tire Co., Ltd. v. Carmichael.

Abstract: The U.S. Supreme Court considered an appeal by the defendant, Kumho Tire, in a products liability action. The appeal resulted from a ruling by the Court of Appeals in the Eleventh Circuit that overturned the district court's exclusion of expert testimony. The plaintiff's expert had sought to testify regarding the reasons for a tire failure and blowout. The subsequent accident resulted in personal injury and the death of a passenger in the plaintiff's vehicle. The Supreme Court held that expert testimony, whether based on professional studies or on personal experience, is subject to the same standard of scrutiny for relevancy and reliability. This decision resolved a conflict that had arisen among the circuit courts of appeal with respect to this issue. The article first outlines the Court's decision, then considers the implication the decision has for the admissibility of expert opinion testimony in future cases.

The Continuing Judicial Assault on Patronage

Abstract: Notwithstanding the opinions of some observers, who felt that the U.S. Supreme Court might back away from its stand opposing patronage (Sylvia, 1994, 13; Boyd, 1992; Daniel, 1992), the Court is not only standing firm but is continuing its assault. Recent Court cases have expanded the prohibitions against the use of patronage. It seems that the Court takes full advantage of the cases it accepts in this area to reaffirm its opposition to patronage. Moreover, lower courts (at least those in the Seventh Circuit) seem to be taking their cue from the Supreme Court with interpretations of Supreme Court rulings that further restrict the use of patronage whenever possible. The majority of Supreme Court landmark cases extending patronage prohibitions originated in the U.S. District Court for the Seventh Circuit, and, more specifically, they were Illinois cases. A review of these cases and seventh circuit cases extending Supreme Court decisions shows the progressive judicial dismantling of patronage practices. Unlike Supreme Court decisions, which are binding nationwide, circuit court decisions are binding only within the area covered by the circuit. However, these cases are often used as guides by judges in other circuits in rendering decisions. Also, circuit court cases interpreting Supreme Court decisions are often an indication of future Court directions. Although the current direction seems clear, the Court often surprises observers by reversals and decisions that seem to be inconsistent with past decisions. Illinois has a long history of patronage practices. Chicago, under the mayoral regime of Richard J. Daley, gained notoriety as a patronage haven. Chicago was touted by both academics and practitioners as the place where patronage was developed to an art form (Royko, 1971; Rakove, 1975). The fact is less well known, but patronage was also an essential part of Illinois state government (Nowlan, Hanley, and Udstuen, 1991). Patronage was pursued vigorously by both political parties--the Republicans at the state level and the Democrats in Chicago. It is perhaps appropriate that both major political parties figured in significant patronage rulings. Chicago was where the judicial assault on patronage began. The most far-reaching decision on traditional patronage practices, however, involved Illinois state government under a Republican administration. The demise of patronage started with Elrod v. Burns in Cook County. The case banned political firing in positions that did not involve non-policy making. It progressed to the Rutan case, which banned most forms of politically motivated personnel practices in Illinois state government for nonpolicy positions. A significant case is the Shakman Decree, which imposed a court-supervised nonpatronage hiring system on Chicago. More recent Illinois court cases have prohibited patronage in the firing of outside contractors for strictly political reasons and banned the patronage hiring of temporary employees based on political affiliation. Most of the Illinois cases considered here are U.S. Supreme Court decisions that established nationwide precedence. Others are circuit or district court decisions that interpret and extend previous Supreme Court decisions on patronage. The court cases reviewed in this article are the Elrod case, the Rutan case, the O'Hare decision, the Shakman Decree, and the Vickery decision. The employment practice affected by each case is indicated in Table 1. With each case the Court cast the antipatronage net further. What began as a narrow ruling applicable only to the firing of employees who were not involved in policy making has now been broadened to include the hiring of full-time or temporary employees and the firing of independent contractors. Table 1 Illinois Court Cases and Their Contribution to Case Law on Banning Patronage Practices Name Year U.S. Court Employment Practice Elrod 1976 Supreme Firing Shakman 1983 District Court-monitored hiring system Rutan 1990 Supreme Hiring, promotions, transfers, recalls O'Hare 1996 Supreme Firing government contractors Vickery 1996 Circuit Hiring temporary employees The Judicial Attack on Patronage Patronage flourished from the early days of the American republic. …

The High Court of Australia: A Study in the Abuse of Power

Abstract: The functioning of the High Court is a matter of fundamental importance within the Australian constitutional polity. The positive and fundamental role of the High Court is to protect federalism but it is a common place in Australian constitutional commentary that the High Court has failed utterly to discharge its contemplated roles.

Who Says It's a Fair Deal?

Abstract: What people who write fairness opinions have at stake and what that means for investors and financial managers. Even though almost every SEC filing disclosing a change in corporate control includes a fairness opinion, these documents do very little for investors--the group disclosure is supposed to inform. Fairness opinions developed as legal protection for members of boards of directors against possible shareholder challenges to their decisions. However, the investment bankers typically preparing such opinions often have an inherent bias in favor of ratifying the transactions. When reviewing a fairness opinion as part of due diligence, investors and financial executives--especially CPAs in business and industry--need to know that these opinions can be highly subjective. Accordingly, they should consider the credentials and motives behind a fairness opinion while weighing its merits and temper the conclusions they draw from it. In the words of Phil Clements, CPA, the New York-based global leader of corporate value consulting at PricewaterhouseCoopers, "A fairness opinion is never a substitute for due diligence." WHAT IS A FAIRNESS OPINION? A fairness opinion is a written and signed third-party assertion certifying--some would say rationalizing--the price of a proposed deal involving a tender offer, merger, asset sale or leveraged buyout. It usually discusses the price and terms of the deal in the context of comparable transactions, drawing attention to strategic considerations that might make a particular transaction worth more or less than others. In many ways, it is an explanation of the deal price arrived at by the negotiating parties. For investors and financial executives, the most useful fairness opinions are detailed, well reasoned and convincing without being too restrictive about what might be fair. Rather than say the exact price of a deal is equitable, a typical fairness opinion outlines a range of fair prices. The actual deal price should fall in that range. Nonetheless, those reading fairness opinions should remain skeptical. Fairness opinions almost never are required as a matter of law although such avowals became customary after January 1985, when the Delaware Supreme Court ruled against the directors of Trans Union Corp. in Smith v. Van Gorkom. Aggrieved shareholders of that company had accused the company's directors of accepting a paltry sum when the company went private in a leveraged buyout. Justice Horsey's majority opinion on the case concluded that the directors hadn't bothered to inform themselves adequately about the company's value before agreeing to sell it. The court opened a safe harbor by implying that the liability could have been avoided had the directors elicited a fairness opinion from anyone in a position to know the company's value. Instead, they had relied solely on the unwarranted assertions of Trans Union's CEO, Jerome Van Gorkom. The boards of American corporations got the message. According to John C. Coffee, Jr., a securities expert teaching at Columbia Law School in New York, the fairness opinion became the established standard "as a minimum precaution." In addition, fairness opinions sometimes are used in contexts outside the SEC's jurisdiction. For example, insurance commissioners in Massachusetts recently called on PWC to assess whether a demutualization plan by an insurance company was fair to policyholders, according to that firm's Clements. WHO WRITES FAIRNESS OPINIONS? Van Gorkom emerged as "a full employment act for investment bankers," Columbia's Coffee says, only half-jokingly. Since the law seldom requires fairness opinions, no specific credentials are needed to write them. Traditionally, investment bankers have written most of them, but the high fees and low risks have attracted new competition-consultants and some CPA firms, for example. The new competitors may offer more independence, lower prices and different credentials. …

Should Justices Ever Switch Votes?: Miller v. Albright in Social Choice Perpsective

Abstract: This article will consider the implications of a rare, but conceptually significant, phenomenon in Supreme Court decision making. The Supreme Court has occasionally issued opinions in which the justices' own assessments of the relationships between and among identified dispositive issues, and the votes cast by the individual justices over those issues, demonstrate a logical voting path leading to the dissenting result. In an even rarer group of just three known cases, one or more justices has attempted to avoid the undesirable consequence of a Supreme Court ruling that is in a significant sense at odds with itself by conceding to a contrary majority on one dispositive issue, thus joining as part of a majority on the remaining dispositive issue or issues. This form of vote switching produces its own anomaly, albeit one that affects the internal logic of the opinion of the vote-switching justice, rather than one that affects the aggregate relationship between the underlying issue resolutions and the judgmen...