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Showing papers on "Majority opinion published in 2005"


Book
15 Dec 2005
TL;DR: Canes-Wrone et al. as discussed by the authors studied the role of public opinion in contemporary American political processes and found that presidents rarely cater to the mass public unless they already agree with the public's preferred course of action.
Abstract: "Who Leads Whom?" is an ambitious study that addresses some of the most important questions in contemporary American politics: Do presidents pander to public opinion by backing popular policy measures that they believe would actually harm the country? Why do presidents "go public" with policy appeals? And do those appeals affect legislative outcomes? Analyzing the actions of modern presidents ranging from Eisenhower to Clinton, Brandice Canes-Wrone demonstrates that presidents' involvement of the mass public, by putting pressure on Congress, shifts policy in the direction of majority opinion More important, she also shows that presidents rarely cater to the mass citizenry unless they already agree with the public's preferred course of action With contemporary politics so connected to the pulse of the American people, "Who Leads Whom?" offers much-needed insight into how public opinion actually works in our democratic process Integrating perspectives from presidential studies, legislative politics, public opinion, and rational choice theory, this theoretical and empirical inquiry will appeal to a wide range of scholars of American political processes

226 citations


Journal ArticleDOI
TL;DR: In this paper, the authors describe and explain the political constraints that limit structural reform of the Supreme Court, using the failure of Roosevelt's 1937 court-packing plan as a running example.
Abstract: This essay describes and explains the political constraints that limit structural reform of the Supreme Court, using the failure of Roosevelt's 1937 court-packing plan as a running example. The thesis is that movements for structural reform of the Court have a self-negating tendency. The very conditions that produce demand for structural reform of the Court also tend to produce counterforces that block reform.

156 citations


Book
01 Jun 2005
TL;DR: In this paper, Pritchett, Schubert, and Murphy-Schubert's attitude-activation model of the Supreme Court decision-making has been examined.
Abstract: @fmct:Contents @toc4:List of Figures and Tables Preface Acknowledgments @toc1:Part I: Theories of Supreme Court Decision-Making @toc2:1 Introduction @toc3:Plan of the Book @toc2:2 Seven Distinctions in the Literature @toc3:Distinction #1: A Psychological Metaphor vs A Rational-Choice Metaphor Distinction #2: Theories of Attitude Activation vs Theories of Rational Choice Distinction #3: Theories of Choice vs Theories of Measurement Distinction #4: Explaining Final Votes vs Explaining What Final Opinion Is Adopted Distinction #5: Explaining Just the Final Vote vs Explaining All Five Stages of Decision-Making Distinction #6: Theories of "Sincere" Rational Choice vs Theories of "Strategic" Rational Choice Distinction #7: A "Status-Quo" Policy vs No "Status-Quo" Policy Conclusion @toc2:3 Assessing Previous Theories of Supreme Court Decision-Making @toc3:The Pioneers: Pritchett, Schubert, and Murphy Schubert's Attitude-Activation Model The Attitudinal Model Conceptual Problems with the Attitudinal Model Other Issues Involving the Attitudinal Model The Literature on Strategically-Rational Justices Conclusion @toc1:Part II: A Formal Model of Supreme Court Decision-Making @toc2:4 Why Formal Models? @toc3:The Role of Theories and Models in Empirical Research Some Potential Benefits from Formal Modeling Potential Costs and Other Criticisms of Formal Modeling How Can We Be Sure That the Potential Benefits Exceed the Potential Costs? Conclusion @toc2:5 Definitions and Assumptions @toc3:Lines, Points, and Utility Functions The Status Quo Policy Preferred-To Sets and Win-Sets The Number of Justices An Informational Assumption "Sincere" and "Strategic" Behavior The Independence of Cases Joining, Concurring, and Dissenting Costless Opinion Writing Conclusion @toc2:6 Coalition Formation and the Final Vote @toc3:When Can the Status Quo Policy Be Upset? What Are the Constraints on the Set of Policies Which Could Be Adopted? What Policies Do Different Majority Coalitions Prefer to SQ? How Do Justices Behave When They Dislike the Majority Opinion? The Agenda-Control Version The Open-Bidding Version The Median-Holdout Version Comparison of the Agenda-Control, Open-Bidding, and Median-Holdout Versions Is Agenda-Control Behavior Unstable? Summary of Major Results @toc2:7 Opinion Assignment @toc3:Self-Assignment As An Opinion-Assignment Strategy Alternative Opinion-Assignment Strategies Opinion Assignment by a Justice Outside WJmed(SQ) Opinion Assignment by a Justice Inside WJmed(SQ) Opinion Assignment by a Minority-Side Justice Would An Opinion Assigner Prefer Larger Coalitions? How Much Does Opinion Assignment Matter? Summary of Major Results @toc2:8 The Conference Vote @toc3:Different Kinds of Strategic Behavior from Different Kinds of Justices Strategic Behavior by the Chief Justice Strategic Behavior by an Associate Justice Who Could Become the Opinion Assigner Strategic Behavior by a Low-Seniority Justice Who Cannot Become the Opinion Assigner What If Everyone Behaves Strategically? When Does the Chief Justice Self-Assign? Will the Chief Justice Trust What Other Justices Say on the Conference Vote? Summary of Major Results @toc2:9 Certiorari @toc3:Sincere Behavior on Certiorari Decisions Strategic Behavior on Certiorari Decisions "Aggressive Granting" and "Defensive Denial" When Justices Are Strategic Summary of Major Results @toc1:Part III: Future Directions for Theories of Supreme Court Decision-Making @toc2:10 Empirical Implications @toc3:Understanding the Five Stages of Supreme Court Decision-Making "Non-Strategic" or "Sincere" Behavior on the Supreme Court "Vote Switching" between the Original and Final Votes Problems of Empirical Measurement Conclusion @toc2:11 Future Research @toc3:Do the Justices Have Perfect Information about Each Other's Preferences? Do the Justices Always Have Clear and Fixed Preferences? Are Supreme Court Cases Independent from Each Other? Regular and Special Concurrences How Many Issue Dimensions Are There? Costly Opinion-Writing Extensions of the Model Exogenous Preferences and the Impact of "The Law" Broader Applications Conclusion @toc4:Notes References Index

107 citations




Book
29 Aug 2005
TL;DR: This article examined how public finance shapes individual preferences towards immigration policy in the United States and found that there is no strong majority opinion about US immigration policy within a group whose members tend to agree on political issues (i.e., liberals, conservatives, isolationists, internationalists, environmentalists, free marketers).
Abstract: Immigration is an issue capable of dividing otherwise like-minded people. Identify a group whose members tend to agree on political issues - liberals, conservatives, isolationists, internationalists, environmentalists, free marketers - and one will tend to find that within the group there is no strong majority opinion about US immigration policy. This important new book examines how public finance shapes individual preferences towards immigration policy in the United States.

70 citations


Book
30 Jan 2005
TL;DR: Tushnet as mentioned in this paper reveals how the decisions of nine deeply divided justices have left the future of the Court; and the nation; hanging in the balance, revealing that the division was between those in tune with the modern post-Reagan Republican Party and those who represented an older Republican tradition.
Abstract: In this authoritative reckoning with the eighteen-year record of the Rehnquist Court, Georgetown law professor Mark Tushnet reveals how the decisions of nine deeply divided justices have left the future of the Court; and the nation; hanging in the balance. Many have assumed that the chasm on the Court has been between its liberals and its conservatives. In reality, the division was between those in tune with the modern post-Reagan Republican Party and those who, though considered to be in the Court's center, represent an older Republican tradition. As a result, the Court has modestly promoted the agenda of today's economic conservatives, but has regularly defeated the agenda of social issues conservatives; while paving the way for more radically conservative path in the future.

62 citations


Journal ArticleDOI
TL;DR: In this article, Epstein et al. examine sophisticated voting on the U.S. Supreme Court by empirically modeling justices' decisions to pass when it is their turn to vote during conference discussions and show that the chief justice may pass when one of the key conditions necessary for sophisticated voting certainty about the views held by other justices and the agenda is lacking.
Abstract: Analyzing strategic aspects of judicial decisionmaking is an important element in understanding how law develops. In this article, we examine sophisticated voting on the U.S. Supreme Court by empirically modeling justices' decisions to pass when it is their turn to vote during conference discussions. We argue that, due to the opinion assignment norm, the chief justice may pass when one of the key conditions necessary for sophisticated voting-certainty about the views held by other justices and the agenda-is lacking. By passing, the chief can view his colleagues' votes in order to determine which vote will allow him to assign the majority opinion and, ultimately, forward his policy preferences. Using data from Justice Lewis F. Powell's conference notes, we show that the chief passes for this purpose, and that doing so is an effective strategy. In addition, we show that the senior associate justice in a case, who has a nontrivial chance of assigning the majority opinion, also passes for strategic reasons. As we expect, the data indicate that the remaining associates seem not to pass for strategic purposes. In recent years, studies of law and courts have emphasized that judges are strategic decision makers. A strategic judge is one who understands that law on the books must be translated into law in action. Put another way, strategic judges acknowledge that they cannot act independently as they attempt to establish legal policy. Thus, a strategic judge's decisions on the bench are influenced in part by the preferences or anticipated choices of other relevant decision makers. While the efficacy of legal policies articulated in decisions depends on the choices made by a panoply of implementers, judges on collegial courts must confront the importance of choices made by their colleagues on the bench. In other words, before issuing a decision a judge must gain the support of his or her colleagues in order to speak for the court. Viewing judges as strategic actors is important because it sheds light on a judge's most important task: setting legal policy. Law develops as judges make choices in the process of deciding particular cases, and to understand legal development it is critical that we explain judges' decisions. Existing research, for instance, shows that when U.S. Supreme Court justices craft majority opinions they bargain, negotiate, and compromise in an attempt to bring legal policy as close as possible to their preferred alternatives (see Epstein & Knight 1998; Maltzman et al. 2000). While most research to date has focused on the U.S. Supreme Court (e.g., Caldeira et al. 1999; Epstein & Shvetsova 2002; Hansford & Damore 2000), comparative studies of law are ripe for consideration of the strategic elements of judicial decisionmaking (see, e.g., Helmke 2002, 2003; Iaryczower et al. 2002; Epstein et al. 2001). Vanberg (2001), for example, shows that the German Federal Constitutional Court acts strategically when deciding whether to strike down legislation. In addition, state court judges in the United States act strategically in response to whether, and when, they must stand for reelection (Brace & Hall 1997). In this article, we explore how justices behave strategically when casting votes at conference. After the Supreme Court hears oral arguments in a case, the justices gather at conference to cast preliminary votes. They express their views and cast their votes, in order of seniority, beginning with the chief justice (CJ) and moving down to the most junior justice. Under this voting rule, the CJ is the first to cast a vote and, arguably, has the most at stake. Indeed, when the chief is in the conference majority the task of assigning an author to write the majority opinion falls to him. This prerogative helps him influence the Court's agenda by selecting an author whose opinion is close to his own preferences, or who will minimize the prospective policy loss if the chief's preferred outcome does not prevail (Epstein & Knight 1998; Maltzman et al. …

56 citations


Posted Content
TL;DR: In this article, an empirical test of member-state influence on European Court of Justice decisions is presented, based on a dataset of all ECJ decisions over three years, demonstrating that the Court does temper its decisions to accommodate member state concerns.
Abstract: The European Court of Justice (ECJ) is commonly described as a powerful international force for legal integration. Indeed, past studies indicate that the ECJ has developed a supranational legal order that trumps national law in a broad range of economic policy areas. But this depiction of an autonomous Court driving European integration beyond the desires of the member-states is dubious. We would expect the Court, whose existence depends on an international treaty and whose authority depends on national enforcement, to have strong incentives to decide cases with an eye to concerns of national governments. We argue that past studies -- which were based on a small number of case studies -- cannot demonstrate whether the Court is or is not sensitive to member-state interests. Based on novel dataset of all ECJ decisions over three years, we develop an empirical test of member-state influence on ECJ decisions and demonstrate that the Court does temper its decisions to accommodate member-state concerns.

49 citations


Journal ArticleDOI
TL;DR: This paper found evidence that the use of the Federalist Papers represents externally and internally oriented strategic attempts by the justices to add legitimacy to constitutional interpretation, and to sway colleagues, and used a combination of descriptive and multivariate techniques to examine Federalist citations from 1953 to 1995 to demonstrate their interpretation.
Abstract: Many scholars of the Supreme Court and many justices assert the importance of the Federalist Papers. They provide important evidence of original meaning and interpretation of the Constitution, and there is evidence that there is an increase in citations to the Federalist Papers in Supreme Court opinions. While some may view this increased citation use as a positive development because it demonstrates reliance on legal authority in judicial decisions, we provide evidence that in a period marked by dissensus and controversy, the use of the Federalist Papers represents externally and internally oriented strategic attempts by the justices to add legitimacy to constitutional interpretation, and to sway colleagues. We use a combination of descriptive and multivariate techniques to examine Federalist citations from 1953 to 1995 to demonstrate our interpretation.

45 citations


Journal ArticleDOI
TL;DR: The most activist Supreme Court in history: The Road to Modern Judicial Conservatism by Thomas M. Keck as discussed by the authors is a seminal work in the history of the United States Supreme Court.
Abstract: The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism. By Thomas M. Keck. Chicago: University of Chicago Press, 2004. 370p. $65.00 cloth, $24.00 paper. The title of this work presents its thesis at the macrolevel, but it is with limited support that the author claims that the current Supreme Court is the “most activist.” The core argument of the book is actually presented in the last chapter in clear fashion. There, the author explicitly refers to the Court as the O'Connor Court since he determines that it is largely the blend of political conservatism and judicial moderation, long displayed by Sandra Day O'Connor, that encapsulates the modern Court. So the thesis is no more than stated as something of a straw man at the outset. Thomas Keck “reveals” that the political ideology (liberal/conservative) dimension of justices is not identical to the judicial activism/restraint dimension of their judicial perspectives. These are and always have been two separate dimensions, even if they may not be orthogonal. It is not clear why this is the first major point of the discussion.

Journal ArticleDOI
TL;DR: Oral arguments and decision making on the United States Supreme Court are used by the justices to help them arrive at substantive legal and policy decisions that closely parallel their preferred outcomes.
Abstract: Oral Arguments and Decision Making on the United States Supreme Court. By Timothy R. Johnson. Albany: State University of New York Press, 2004. 180p. $35.00. This book makes a persuasive thesis that the oral arguments presented in cases before the United States Supreme Court are used by the justices to help them arrive at substantive legal and policy decisions that closely parallel their preferred outcomes. Although that would seem to be logical, the author documents that many scholars who write about the Court do not share this thesis. Those scholars, such as the so-called attitudinalists, posit that oral arguments have no effect on justices' votes. In order to reinforce his thesis, Timothy Johnson uses the strategic model of decision making, namely, that justices are goal oriented, they are strategic, and they account for institutional rules. He then goes on to explain that because the briefs presented to the Court from both the litigants and from amici curiae are understandably biased in behalf of their particular points of view, the oral arguments serve to solve this problem.

Posted Content
TL;DR: This article developed an interpretive-structural theory that harmonizes these seemingly opposed views of the Supreme Court decision-making, which not only explains why the internal and external views often are both effective but also why, sometimes, one approach might be more effective than the other.
Abstract: Law professors and political scientists generally subscribe to opposed theories of Supreme Court decision making. Law professors, to a great degree, adhere to an internal view: Supreme Court justices decide cases according to legal rules, principles, and precedents. Political scientists follow an external view: justices decide cases according to their political ideologies or preferences. This Article develops an interpretive-structural theory that harmonizes these seemingly opposed views. This interpretive-structural theory not only explains why the internal and external views often are both effective but also why, sometimes, one approach might be more effective than the other. The Article concludes by comparing the interpretive-structural theory with the “new institutionalism” that is emerging in political science.

Journal ArticleDOI
TL;DR: In this article, the authors examined state supreme court implementation of Supreme Court precedent when deciding cases challenging state legislation and found that state courts are indeed constrained by both state and federal actors, and that policies are so salient to both state actors and to the U.S. Supreme Court that the influence of the state court's own policy preferences may be minimal.
Abstract: This article examines state supreme court implementation of Supreme Court precedent when deciding cases challenging state legislation. While previous research provides a wealth of insight into how state contextual and institutional features constrain state court decisionmaking and how lower courts respond to Supreme Court precedent, very little research explicitly examines state court decisionmaking when both constraints are present. By integrating the findings of previous research, I develop and test hypotheses about the effect of these different actors on state court decisionmaking. The results show that state courts are indeed constrained by both state and federal actors. The results also suggest that there may be instances where policies are so salient to both state actors and to the U.S. Supreme Court that the influence of the state court’s own policy preferences may be minimal. The findings provide important evidence about the importance of competing constraints on state supreme court decisionmaking.

Posted Content
Teemu Ruskola1
TL;DR: In the case of Bowers v. Hardwick, the question was not one of sodomy but of intimacy -of certain intimate sexual conduct which the Court did not even specify for the purposes of stating the constitutional issue.
Abstract: In 1986, the United States Supreme Court affirmed the constitutionality of a Georgia statute under which Michael Hardwick had been charged with committing sodomy in his home with another male. The majority opinion in Bowers v. Hardwick formulated its task in the following blunt terms: to determine whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy. The answer to that question could of course only be negative. Less than twenty years later, in Lawrence v. Texas the Court endorsed passionately homosexual intimacies and overruled Hardwick. What made this stunning judicial volte-face possible? It is a commonplace of legal advocacy that the framing of a question always already anticipates its answer. In Lawrence, the court effectively changed the question in its framing of the issue: The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. That is, the question was not one of sodomy but of intimacy - of certain intimate sexual conduct which the Court did not even specify for the purposes of stating the constitutional issue. This essay argues that Hardwick nevertheless got the constitutional question right (with some qualifications), even though the Court's answer to the question was obviously disastrously wrong. Admittedly, having been labeled as sodomites under the constitutional regime crowned by Hardwick, it is difficult to resist the Lawrence Court's interpellation of homosexuals as law-abiding subjects who are capable of intimacy and are entitled to respect for their private lives in the name of their dignity as free persons. But the respect and dignity offered by the Court will likely not come free. They will have to be earned, by leading respectable sex lives. The essay first examines the rhetorical and political conditions attached to Lawrence's offer of gay respectability and then turns to Bowers v. Hardwick and the possibility of redeeming its focus on sodomy. In a larger evaluation of the post-Hardwick landscape, it asks whether we have been liberated by the fall of anti-sodomy legislation. And if so, to what? From the perspective of queer theory, how should we view this victory for gay rights?

Book
06 Dec 2005
TL;DR: A year in the life of the Supreme Court under the media lens is described in this article, where the authors present a series of interviews with judges and journalists who report on the court through a political prism.
Abstract: Acknowledments Judgment Day: A Vignette Introduction: The Supreme Court Under the Media Lens 1 A Year in the Life of the Supreme Court 2 Equal in Alberta: The Vriend Case 3 Court and Spin Country: The Quebec Secession Reference 4 "Sea of Confusion": R. v. Marshall 5 "Parents Can Sleep Soundly": The Queen v. John Robin Sharpe 6 Judges and Journalists Conclusion: Reporting the Supreme Court through a Political Prism Appendix A: Interview Questions Appendix B: Method of Analysis -- Coding Instructions and Sample Code Sheet About the Authors Index

Journal ArticleDOI
TL;DR: The Hendricks and Crane decisions as mentioned in this paper, however, do not re-qualify that a sex offender is completely unable to control behavior, but require proof of serious diffi culty in controlling conduct.


Posted Content
TL;DR: This paper examined whether the end of the LDP's electoral lock changed the Japanese Supreme Court's promotion system, and found surprisingly little change in the court's promotion process, whether before or after 1993.
Abstract: Although the executive branch appoints Japanese Supreme Court justices as it does in the United States, a personnel office under the control of the Supreme Court rotates lower court Japanese judges through a variety of posts. This creates the possibility that politicians might indirectly use the postings to reward or punish judges. For forty years, the Liberal Democratic Party (LDP) controlled the legislature and appointed the Supreme Court justices who in turn controlled the careers of these lower-court judges. In 1993, it temporarily lost control. We use regression analysis to examine whether the end of the LDP's electoral lock changed the court's promotion system, and find surprisingly little change. Whether before or after 1993, the Supreme Court used the personnel office to 'manage' the careers of lower court judges. The result: uniform and predictable judgments that economize on litigation costs by facilitating out-of-court settlements.

Journal ArticleDOI
TL;DR: In this article, the authors examine the conventional positive political theory explanations for circuit court adherence to Supreme Court preferences based on a risk of reversal by the Court and propose an alternative explanation that considers the possibility of judges who possess both political and legal preferences.
Abstract: Why do lower courts follow precedent, or any law? Traditional rational choice theories that rely on presumptions of ideological decision making have struggled to explain the power of judicial hierarchy. This article addresses the issue in three components. The first two sections examine the conventional positive political theory explanations for circuit court adherence to Supreme Court preferences based on a risk of reversal by the Court. These sections explain how these conventional theories cannot be theoretically sustained under prevailing resource constraints. The next two sections set forth an alternative explanation that considers the possibility of judges who possess both political and legal preferences. Using linguistic theory, these sections explain how the two types of preference could interact to produce partial adherence to precedent. The final section empirically examines circuit court decision making. This analysis shows that both political and traditional legal considerations have a significant effect on circuit court decision making, while contemporaneous Supreme Court preferences exert no discernible influence. The theoretical and empirical evidence support a conclusion that lower courts adhere to the law out of an affirmative judicial preference for such adherence rather than out of a fear of reversal by a higher court.

Journal ArticleDOI
TL;DR: In the Supreme Court case Gonzales v. Raich, the justices ruled 6 to 3 that the federal government has the power to arrest and prosecute patients and their suppliers.
Abstract: In the Supreme Court case Gonzales v. Raich, the justices ruled 6 to 3 that the federal government has the power to arrest and prosecute patients and their suppliers. Dr. Susan Okie explains that it is not yet clear what effect the Court's decision will have on patients.


Journal ArticleDOI
TL;DR: In the case of Bowers v. Hardwick, the question was not one of sodomy but of intimacy -of certain intimate sexual conduct which the Court did not even specify for the purposes of stating the constitutional issue as discussed by the authors.
Abstract: In 1986, the United States Supreme Court affirmed the constitutionality of a Georgia statute under which Michael Hardwick had been charged with committing sodomy in his home with another male. The majority opinion in Bowers v. Hardwick formulated its task in the following blunt terms: to determine whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy. The answer to that question could of course only be negative. Less than twenty years later, in Lawrence v. Texas the Court endorsed passionately homosexual intimacies and overruled Hardwick. What made this stunning judicial volte-face possible? It is a commonplace of legal advocacy that the framing of a question always already anticipates its answer. In Lawrence, the court effectively changed the question in its framing of the issue: The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. That is, the question was not one of sodomy but of intimacy - of certain intimate sexual conduct which the Court did not even specify for the purposes of stating the constitutional issue. This essay argues that Hardwick nevertheless got the constitutional question right (with some qualifications), even though the Court's answer to the question was obviously disastrously wrong. Admittedly, having been labeled as sodomites under the constitutional regime crowned by Hardwick, it is difficult to resist the Lawrence Court's interpellation of homosexuals as law-abiding subjects who are capable of intimacy and are entitled to respect for their private lives in the name of their dignity as free persons. But the respect and dignity offered by the Court will likely not come free. They will have to be earned, by leading respectable sex lives. The essay first examines the rhetorical and political conditions attached to Lawrence's offer of gay respectability and then turns to Bowers v. Hardwick and the possibility of redeeming its focus on sodomy. In a larger evaluation of the post-Hardwick landscape, it asks whether we have been liberated by the fall of anti-sodomy legislation. And if so, to what? From the perspective of queer theory, how should we view this victory for gay rights?

Journal ArticleDOI
TL;DR: The definition of the rule of law is summarized at 202-3 as mentioned in this paper, and the definition of a rule-of-law is defined at 202−3 in the Law of the Constitution.
Abstract: Blake, Cassels & Graydon LLP, Toronto. ** Law clerk to Mr Justice Binnie of the Supreme Court of Canada. The views expressed here are personal and are not the views of Mr Justice Binnie or of the Court. 1 A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (London: MacMillan & Co., 1959) [Law of the Constitution]. The definition of the rule of law is summarized at 202–3.

Journal ArticleDOI
TL;DR: Several aspects of the University of Michigan Supreme Court cases regarding diversity in higher education are described, which provide a number of resources useful in shaping the rationale and institutional practices and policies for admissions and the recruitment and retention of diverse classes of students for the health professions.
Abstract: This article describes several aspects of the University of Michigan Supreme Court cases regarding diversity in higher education. It provides a number of resources that are useful in shaping the rationale and institutional practices and policies for admissions and the recruitment and retention of diverse classes of students for the health professions.

Posted Content
TL;DR: In the High Court of Australia, only one woman has been appointed to the Court, and only one of the 44 appointments to the court has been made by a woman as discussed by the authors.
Abstract: The judges of the High Court of Australia are appointed by the federal executive on the basis of 'merit' after an informal and secret consultation process. This system is anachronistic when compared with the judicial appointments procedures and ongoing reforms in other common law jurisdictions, and when considered against the minimum level of scrutiny and accountability now expected of senior appointments to other public institutions. It is also inconsistent with the role of the High Court in determining the law, including matters of public policy, for the nation as a whole. One consequence of the current system, including its reliance on the subjective concept of 'merit', is that, of the 44 appointments to the Court, only one has been a woman. The appointments process should be reformed to provide for the selection of High Court judges by the executive based upon known criteria after the preparation of a short list by a judicial appointments commission. Without this, the current executive appointments system threatens to undermine public confidence in the Court and the administration of justice.

Journal ArticleDOI
Sarah Williams1
TL;DR: In this article, the authors examined the decisions of the Special Court for Sierra Leone on the amnesty issue and evaluated the jurisprudence of the Court with reference to the current status of amnesties in international law.
Abstract: The Special Court for Sierra Leone, a hybrid criminal tribunal established to try persons accused of serious crimes during the conflict in Sierra Leone, has recently commenced its judicial operations. Several of the preliminary issues raised by various defendants have required the Court to examine the validity of the amnesty granted to combatants by the Lome Peace Agreement and the amnesty's impact upon the Court's jurisdiction to try the defendants. This article examines the decisions of the Court on the amnesty issue and evaluates the jurisprudence of the Court with reference to the current status of amnesties in international law.


Journal ArticleDOI
TL;DR: Public opinion holds great importance in democracies because a democracy, by its very definition, connotes a form of government that is responsive to the people (Williams & Edy, 1999).
Abstract: Public opinion holds great importance in democracies because a democracy, by its very definition, connotes a form of government that is responsive to the people (Williams & Edy, 1999) Alluding to such importance, Mill (1859/1975) observed the "ascendancy of public opinion" in modern democracies where "the idea of resisting the will of the public disappears more and more from the minds of practical politicians" (p 69) Bryce (1898/1927) similarly argued that in the United States, public opinion "rifles as a pervading and impalpable power, like the ether which passes through all things" (p 271) Contemporary political scientists have continued to find a strong, but often complex, link between public opinion and political decision making (Burstein, 2003) As Hanson and Marcus (1993) explain, in a democracy "everything depends on public opinion," and this is "the greatest strength--and also the chief weakness--of democratic politics" (p 6) Of course, to say that public opinion plays an important role in democratic governance begs the question of what exactly counts as "public opinion" The very meaning of "public opinion" has been contested over time (Herbst, 2001) Ancient Greeks, for example, associated public opinion with public rhetoric; in the Greek city-states the rhetoric of citizen assemblies constituted public opinion (Glynn, Herbst, O'Keefe, & Shapiro, 1999) Habermas (1962/1989) has illuminated a similarly strong connection between discourse and public opinion in eighteenth-century Europe In this particular historical context, public opinion emerged in the bourgeois public sphere Citizens created this vibrant public sphere as they came together in public spaces, such as coffee houses and salons, to discuss matters of public concern In more recent times, public opinion has lost this vital association with discourse The advent of George Gallup and modern public opinion polling techniques have transformed public opinion from a discursive process into an empirical product Today, polling has become the dominant definition of public opinion (Glynn et al, 1999) as well as a "cultural obsession" (Hogan, 1997, p 162) In response to this proliferation of polls, scholars across disciplines have attempted to reassociate public opinion with discourse In establishing this reassociation, rhetoricians have endeavored to reveal the rhetorical nature of publics For example, McGee (1975) has attempted to show how "the people are more process than phenomenon (p 242) In McGee's (1998) view, the term people actually serves as a "rhetorical device" that transforms individuals into a collectivity (p 116) Similarly, Willard (1996) has argued that publics are "rhetorically constituted" (p 228), Hauser (1999) has described publics as "emergences manifested through vernacular rhetoric" (p 14), and Olson and Goodnight (1994) have shown how a public can be "brought into being by oppositional argument" (p 272) Rhetoric not only creates and sustains publics, but also determines the very meaning of public opinion In this view, which I will refer to as the rhetorical view, public opinion is seen as "epiphenomenal, as arising out of the process of social and communicative interaction" (Lipari, 1999, p 86) This rhetorical construction of public opinion has vital implications for democratic governance (Herbst, 1998) For example, scholars have shown that rhetoric equating public opinion with poll results undermines the health of the public sphere and hence the overall health of a democracy (Goodnight, 1990; Hauser, 1999; Herbst, 1993; Hogan, 1997; Zarefsky, 1994) The rhetorical construction of public opinion also has significant implications for public policy The very nature of democratic governance necessitates an interrelationship between public opinion and public policy The rhetorical view refuses to see public opinion as an entity (citizens' individual, aggregated beliefs) outside the state that policy makers can choose to acknowledge or ignore; instead, policy argument shapes the very meaning and relevance of public opinion in the policy-making process …

Posted Content
TL;DR: The authors examines the political history of the judicial review of federal statutes by the Lochner Court, in particular between the years of 1890 and 1919, and suggests the extent to which the Court was operating in cooperation, rather than in conflict, with other national political officials during this period.
Abstract: This article examines the political history of the judicial review of federal statutes by the Lochner Court, in particular between the years of 1890 and 1919. In doing so, it situates this notorious Court within its political context and suggests the extent to which the Court was operating in cooperation, rather than in conflict, with other national political officials during this period. The article demonstrates that the invalidation of federal statutes rarely, if ever, pitted the Court against a clear majority of elected national officials. This article also exposes the more routine work that the Court does in exercising the power of judicial review, and suggests the value of that work.