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Showing papers on "Majority opinion published in 2008"


Journal ArticleDOI
TL;DR: In this article, the authors examine how threats of noncompliance and legislative override influence decisions by the European Court of Justice (ECJ) and find that the preferences of member-state governments have a systematic and substantively important impact on ECJ decisions.
Abstract: The actual impact of judicial decisions often depends on the behavior of executive and legislative bodies that implement the rulings Consequently, when a court hears a case involving the interests of those controlling the executive and legislative institutions, those interests can threaten to obstruct the court's intended outcome In this paper, we evaluate whether and to what extent such constraints shape judicial rulings Specifically, we examine how threats of noncompliance and legislative override influence decisions by the European Court of Justice (ECJ) Based on a statistical analysis of a novel dataset of ECJ rulings, we find that the preferences of member-state governments—whose interests are central to threats of noncompliance and override—have a systematic and substantively important impact on ECJ decisions

258 citations


Journal ArticleDOI
TL;DR: In this article, public support for capital punishment has no measurable effect on nonelective state supreme courts and judge willingness to uphold death sentences, while mass opinion and the institution of electing judges systematically influence court composition and judge behavior.
Abstract: Do state supreme courts act impartially or are they swayed by public opinion? Do judicial elections influence judge behavior? To date these questions have received little direct attention due to the absence of comparable public opinion data in states and obstacles to collecting data necessary for comprehensive analysis of state supreme court outcomes. Advances in measurement, data archiving, and methodology now allow for consideration of the link between public opinion and judicial outcomes in the American states. The analysis presented considers public opinion's influence on the composition of courts (indirect effects) and its influence on judge votes in capital punishment cases (direct effects). In elective state supreme courts, public support for capital punishment influences the ideological composition of those courts and judge willingness to uphold death sentences. Notably, public support for capital punishment has no measurable effect on nonelective state supreme courts. On the highly salient issue of the death penalty, mass opinion and the institution of electing judges systematically influence court composition and judge behavior.

216 citations


Journal ArticleDOI
TL;DR: The authors explored the two causal pathways suggested to link public opinion directly to the behavior of justices and the implications of the nature and strength of these linkages for current debates concerning Supreme Court tenure.
Abstract: There is wide scholarly agreement that the frequent replacement of justices has kept the Supreme Court generally attuned to public opinion. Recent research indicates that, in addition to this indirect effect, Supreme Court justices respond directly to changes in public opinion. We explore the two causal pathways suggested to link public opinion directly to the behavior of justices and the implications of the nature and strength of these linkages for current debates concerning Supreme Court tenure. The recent increase in the stability of Court membership has raised questions about the continued efficacy of the replacement mechanism and renewed debates over mechanisms to limit judicial tenure. Our analysis provides little evidence that justices respond strategically to public opinion but provides partial support for the idea that justices' preferences shift in response to the same social forces that shape the opinions of the general public. Our analysis offers preliminary evidence that—even in the absence o...

115 citations


Journal ArticleDOI
TL;DR: In this paper, the effects of law and policy preferences on the U.S. Supreme Court's decision-making process are analyzed using the positions taken by political actors outside of the court who put less emphasis on legal considerations.
Abstract: To understand and assess the impact that the law has on judicial decision-making on the U.S. Supreme Court, one must disentangle the effects of law and policy preferences. In this paper, we elaborate the fundamental character of this challenge, and then present a novel approach to measuring the effect - if any - of the law on justices' decisions. Key to our approach is the use of positions taken by political actors outside of the court who put less emphasis on legal considerations. The positions taken by these actors allow us to pin down policy elements of voting. We use these elements to identify statistically the effects of legal forces including adherence to precedent, judicial restraint in the form of deference to Congress and a strict interpretation of the First Amendment's protection of speech clause that may guide judicial decision-making. The evidence suggests that legal factors play an important role and that their effects vary across the justices in interesting ways.

96 citations


Journal ArticleDOI
TL;DR: It is found that the underlying network can be self-organized into connected communities with like-minded individuals belonging to the same group; thus a broad variety of opinions coexist and an increasing tendency to redirect to neighbors of neighbors is more likely to result in a consensus of opinion.
Abstract: We investigate the coevolutionary dynamics of opinions and networks based upon majority-preference (MP) and minority-avoidance (MA) rules. Under MP, individuals adopt the majority opinion among their neighbors; while in MA individuals can break the link to one holding a minority and different opinion, and rewire either to neighbors of their neighbors with the same opinion or to a random one from the whole population except their nearest neighbors. We study opinion formation as a result of combination of these two competing rules, with a parameter tuning the balance between them. We find that the underlying network can be self-organized into connected communities with like-minded individuals belonging to the same group; thus a broad variety of opinions coexist. Diverse opinions disappear in a population in which all individuals share a uniform opinion, when the model parameter exceeds a critical value. Furthermore, we show that an increasing tendency to redirect to neighbors of neighbors is more likely to result in a consensus of opinion.

94 citations


Posted Content
TL;DR: The Court's decision in District of Columbia v. Heller as mentioned in this paper was seen as a modern version of Marbury v. Madison, speaking neutrally for the text, structure, and original understanding of the Constitution.
Abstract: The Court's decision in District of Columbia v. Heller might be taken in three different ways. First, it might be seen as a modern version of Marbury v. Madison, speaking neutrally for the text, structure, and original understanding of the Constitution. Second, it might be seen as analogous to Lochner v. New York, in which a majority of the Court invoked a dubious understanding of the Constitution in order to override the democratic will. Third, it might be taken as analogous to Griswold v. Connecticut, in which a majority of the Court, proceeding in minimalist fashion, used the Constitution to vindicate the contemporary judgments of a national majority. It is true that in emphasizing constitutional text and structure, the Court spoke in terms close to those in Marbury; indeed, Heller is the most self-consciously originalist opinion in the history of the Supreme Court. It is also true that many historians reject the Court's understanding of the Second Amendment, making it plausible to see the ruling as a modern incarnation of Lochner. But the timing and context of the decision suggest that Griswold is the most illuminating analogy. In both cases, the Court spoke on behalf of the contemporary sentiment of a national majority against a national outlier. The claimed analogy between Griswold and Heller fits well with the fact that Heller is a narrow ruling with strong minimalist elements. No less than the right of privacy, and notwithstanding the backward-looking nature of the Court's opinion, the right to have guns is likely to evolve over time through case-by-case judgments made under the influence of contemporary social commitments.

93 citations


Journal ArticleDOI
TL;DR: In this paper, the authors argue that the parties through the briefs submitted on the merits have the ability to influence the content of the opinions of the Supreme Court, through the submission of arguments.
Abstract: Do parties' briefs influence the content of Supreme Court opinions? The author contends that the parties, through the briefs submitted on the merits, have the ability to influence the content of op...

90 citations


DOI
09 Feb 2008
TL;DR: The authors found that leaders overrule their teams in 35% of cases and such decisions are primarily driven by divergent preferences of leaders and the other team members, and that male, younger and more risk seeking (as opposed to female, older, more risk averse) leaders over-approximate decisions of ordinary team members more often.
Abstract: In hierarchical organizations the role of a team leader often requires making decisions which do not necessarily coincide with the majority opinion of the team. However, these decisions are final and binding for all team members. We study experimentally why, and under which conditions, leaders resort to such decisions. In our experiment, teams are presented with several paired lottery choices. They decide by majority voting which lottery from the lottery pair they prefer to be played out. After all members of the team have made their choices, the team leader is informed about the outcome of the vote and has an opportunity either to confirm or to alter the majority decision. We find that leaders overrule their teams in 35% of cases and such decisions are primarily driven by divergent preferences of leaders and the other team members. Male, younger and more risk seeking (as opposed to female, older and more risk averse) leaders overrule decisions of ordinary team members more often. We discuss the implications of our findings for the management of organizations.

84 citations


Journal ArticleDOI
TL;DR: The authors found that although many factors affecting diffuse support for state courts parallel the determinants of such support for the nation's high court, important differences exist between explanations of citizen support for other American courts and the Supreme Court.
Abstract: Since the United States Supreme Court's decision in Bush v. Gore, the public's support for the judicial system looms as an especially important concern. Although studies have confirmed that the Supreme Court's reservoir of public goodwill has remained largely intact following the politically divisive decision, the status of public support for other American courts has received little attention. This reflects a broader trend in judicial politics scholarship toward placing inordinate attention on explaining public support for the U.S. Supreme Court while largely ignoring the courts where most of the policymaking in the nation occurs—state courts. We use a national survey to assess the factors influencing diffuse support for state courts. We find that although many considerations affecting diffuse support for state courts parallel the determinants of such support for the nation's high Court, important differences exist between explanations of citizen support for state courts and the Supreme Court. Most notab...

75 citations


Journal ArticleDOI
TL;DR: In this paper, the authors address the issue of whether conduct in international peace operations is attrib- fable to the troop contributing states or to the United Nations, taking the European Court of Human Rights'admissibility decision in the Behrami and Saramati cases as a point of ref- erence.
Abstract: The article addresses the issue of whether conduct in international peace operations is attrib- utable to the troop contributing states or to the United Nations, taking the European Court of Human Rights ' admissibility decision in the Behrami and Saramati cases as a point of ref- erence. The Court concluded that conduct by UNMIK and KFOR troops in Kosovo is attrib- utable to the United Nations. The article examines the content of the ' ultimate authority and control ' test that is applied by the Court, and argues that the Court should have taken a different approach. The Court's test is in the author's view diffi cult to reconcile with the International Law Commission's work on the responsibility of international organizations, with United Nations practice on responsibility for unlawful conduct in peace operations, and with the Court's own jurisprudence concerning attribution of conduct to the state. The author argues further that the Court's arguments are incomplete even if the Court's approach were to be considered correct. The article concludes by expressing concern that the Court's deci- sion, when seen in connection with previous case law, in practice renders the European Con- vention on Human Rights irrelevant in international peace operations.

74 citations


Journal ArticleDOI
TL;DR: For example, the authors traces the history of judicial discourse to understand the reason for dissents and shows that the change in judicial discourse was made in an attempt to increase the power of law courts over other forms of dispute resolution.
Abstract: Why do judges dissent? There are several conventional answers. One is that dissents communicate legal theories to future judges, litigants, or politicians in the hope of becoming law later. Another is that dissents reveal the internal deliberation of courts, thus increasing their legitimacy in a democratic society. Both of these suggest that dissent improves the law making process. Other theories are potentially less benign. For example, dissents are inevitable given the ego and life-tenure of Article III judges or dissents enable majorities to be bolder in their holdings, thereby creating more law than is necessary. Chief Justice Roberts adheres to this latter view, and therefore has called for more unanimity on the Court. Before we can say whether Roberts's goal is worth pursuing, we must have a full account of the reason for dissent. This paper traces the history of judicial discourse to understand the reason for dissent. Over the past several hundred years, the Supreme Court and its predecessors in England have sometimes issued dissents and sometimes spoken largely with one voice. A specific change in the delivery of opinions has happened at least three times on a grand scale: (1) Chief Justice Mansfield's change from traditional seriatim opinions to an "opinion of the court" in England circa 1760; (2) a similar change in the United States Supreme Court upon the ascendancy of John Marshall to Chief Justice in 1801; and (3) the development of a tradition of writing separately during the New Deal era of the Supreme Court, which has persisted to the present. This paper shows that in each case the change in judicial discourse was made in an attempt to increase the power of law courts over other forms of dispute resolution. For example, Mansfield and Marshall moved from seriatim opinions to an "opinion of the court" to bring certainty to decisions and thereby increase the power of their courts, whereas the modern move away from unanimity is about achieving the same goal, but by using dissent to placate losers and protect the Court's jurisdiction over politically contentious issues like abortion or affirmative action. In short, history shows that judicial discourse, be it unanimity or seriatim or something in the middle, reflects court power, and those who want to change court power did so through a change in judicial discourse.

Journal ArticleDOI
TL;DR: This paper examined how media coverage of the Supreme Court can influence procedural perceptions and subsequent support for the Court and found that the media's portrayal of procedural information as either fair or unfair influences public evaluations of procedural fairness and subsequently support of the Court as an institution and the individual justices serving on the Court's bench.
Abstract: This paper examines public support toward the U.S. Supreme Court. Although previous scholars have rightly focused on policy outcomes in explaining public attitudes toward the Court, outcome-based theories are unable to explain why support for the Court remains high despite public disagreement with Court decisions. Some scholars argue the low visibility of the Court shields it from public scrutiny. The exposure explanation, however, is inconsistent with the empirical finding that to know the Court is to love it. This paper reconciles these differences by showing how media coverage of the Court can influence procedural perceptions and subsequent support for the Court. Expanding on recent studies examining media coverage of the Court and perceptions of fairness, this study examines how procedural perceptions mediate support for the Court. An experimental design shows that the media's portrayal of procedural information as either fair or unfair influences public evaluations of procedural fairness and subsequently support for the Court as an institution and the individual justices serving on the Court's bench.

Journal ArticleDOI
TL;DR: The role of organized interests in contributing to a Justice's decision to write or join a separate opinion is discussed in this article. But the authors do not consider the role of interest group amicus curiae participation in the Court.
Abstract: A great deal of empirical research has focused on explaining why U.S. Supreme Court Justices partake in nonconsensual opinion writing. However, little attention has been paid to the role of organized interests in contributing to a Justice's decision to write or join a separate opinion. I argue that a Justice's decision to engage in this behavior is a partial function of interest group amicus curiae participation in the Court. By providing the Justices with a myriad of information regarding how cases should be resolved, organized interests create ambiguity in the Justices' already uncertain decision making, at the same time providing them with a substantial foundation for concurring or dissenting opinions. I subject this argument to empirical validation by examining the Justices' decisions to author or join regular concurring, special concurring, and dissenting opinions during the 1946–1995 terms. The results indicate that organized interests play a considerable role in increasing dissensus on the Supreme Court.

Journal ArticleDOI
TL;DR: In this article, a simple spatial model of Supreme Court decision making in the presence of executive discretion over compliance with the Court's rulings is developed and analyzed, and empirical evidence consistent with the argument that the Supreme Court's ability to constrain executive discretion depends critically upon the public being aware of and understanding the ramifications of the case at hand.
Abstract: Existing work on the U.S. separation of powers typically views the Supreme Court as the final arbiter of constitutional and statutory disputes. By contrast, much comparative work on institutional politics explicitly recognizes the role of executives in enforcing and implementing court decisions. Drawing on that work, this study relaxes the assumption that executives must comply with Supreme Court rulings, and instead allows the propensity for executive compliance to depend upon indirect enforcement by the public. We develop and analyze a simple spatial model of Supreme Court decision making in the presence of executive discretion over compliance with the Court's rulings, and demonstrate that such discretion can act to restrict substantially the Court's decision making. Relying upon data collected for the Warren and Burger courts, we find empirical evidence consistent with the argument that the Supreme Court's ability to constrain executive discretion depends critically upon the public being aware of and understanding the ramifications of the case at hand.

Journal ArticleDOI
TL;DR: Norrander and Wilcox as mentioned in this paper found strong links between public opinion and state death penalty enforcement and abortion policy and found that public opinion is especially strong on morality policy, and the "debate over first principles" and the legal sanction of right and wrong increase issue salience and ease.
Abstract: ideologies and beliefs of a state's citi zens, especially with regard to simple, politically salient issues that are the focus of highly visible legislative action. Accord ing to Norrander and Wilcox (1999, 708), "the effect of public opinion is thought to be especially strong on morality policy." The "debate over first principles" and the "legal sanction of right and wrong" increase issue salience and ease (Mooney 1999, 676, 675). Scholars have documented strong links be tween public opinion and state death pen alty and abortion policy, for instance (Nor rander and Wilcox 1999; Mooney and Lee 2000; Norrander 2000). Three studies of state laws on employment discrimination, same-sex marriage, and sodomy laws have found little


Posted Content
TL;DR: In this article, the authors provide a long-overdue critical analysis of the most influential source of data about the Supreme Court, the Original Supreme Court Database, created by political scientist Harold J. Spaeth.
Abstract: In recent years, the legal academy has experienced a surge of interest in quantitative empirical analysis. Unfortunately, this enthusiasm has not always been accompanied by careful analysis of what the tools and resources of quantitative analysis can tell us about law and legal doctrine. As this Article demonstrates, the findings of some studies therefore unwittingly reflect the limitations of those tools and resources rather than providing insight into the workings of courts.Specifically, this Article provides a long-overdue critical analysis of the most influential source of data about the Supreme Court, the Original Supreme Court Database, created by political scientist Harold J. Spaeth. The Database, which codes every opinion issued by the Supreme Court since 1953, contains coding for legal provisions considered by the court and for what Spaeth calls issue and issue area. Although numerous scholars - within both political science and law - rely on them, these codes do not report reliable information about the role that law and legal doctrine plays in the Supreme Court's cases. The Database does not reliably report the legal provisions or doctrines relied upon or at issue; it does not attempt to report legal issues at all, instead describing the "public policy context" of the case; and by design, it generally reports only one issue per case. These limitations have important, but poorly understood, implications for the many, many scholars who rely on the Database, and the Article describes a number of specific studies whose results are unreliable because of the way they use the Database.This critique of the Database and the ways scholars use it can help scholars to be smarter and more accurate in their use of the Database. At the same time, the Article explores ways to incorporate law and legal doctrine into empirical legal scholarship. To further both goals, the Article presents the results of my Recoding Project of a random sample of recent Supreme Court cases. The findings of the Recoding Project confirm that significant information about law and doctrine is omitted from the databases. Furthermore, the findings suggest that the databases systematically underreport law and doctrine related to courts in particular and to the structure and operations of government in general - issues that may be very salient to the justices in at least some cases. By demonstrating what information is missing or misstated in the Database and by exploring ways to develop more comprehensive and law-focused coding protocols, this Article helps positive scholars - whether political scientists or legal academics - to consider how to take account of law. The Article concludes by discussing implications for future research.

Journal ArticleDOI
TL;DR: In this paper, the authors examine the theory and evidence behind patent holdup concerns as they relate to patent relief policy and find that the holdup theory justifying categorical limitations on injunctive relief rests upon overly narrow assumptions.
Abstract: The Supreme Court's 2006 eBay ruling marked a turning point in injunctive relief policy. Unfortunately, there seems to be considerable confusion about the implications of the decision. Some authors, concerned over patent holdup and excessive royalty rates, interpret the eBay decision as giving a green light to district courts to deny injunctive relief to “non-manufacturing patent owners.” Using an error-cost framework, we examine the theory and evidence behind patent holdup concerns as they relate to injunctive relief policy. We find that the holdup theory justifying categorical limitations on injunctive relief rests upon overly narrow assumptions. As a result, categorical limitations are likely to result in substantial “false positives,” where patent holders with no designs of patent holdup are nonetheless denied injunctive relief. Instead of advocating categories of denial, we argue that the majority opinion in eBay can and should be read as a return to a balancing test, where costs and benefits are weighed carefully before granting or denying a patent injunction.

Journal ArticleDOI
TL;DR: This paper examined the coverage of the Supreme Court of Israel functioning as the High Court of Justice in the popular and elite press over a period marked by growing activism of the Israeli Supreme Court and an increasingly adversarial and critical media.
Abstract: This study examines the coverage of the Supreme Court of Israel functioning as the High Court of Justice (HCJ) in the popular and elite press over a period marked by growing activism of the Israeli Supreme Court and an increasingly adversarial and critical media. Our results show that more prominent coverage of the HCJ over time, especially in the elite press, accentuates the salience of the Supreme Court in public life. In addition, the topics, the stages of the HCJ proceedings, the petitioners, and the outcome of the cases covered by the press, as well as the generally uncritical reporting of the Court decisions help create the frame of an autonomous, powerful Court that frequently opposes and restrains the government. We suggest that this pattern of media coverage of the HCJ benefits both the Court and the media: it reinforces the image of the media as a critical watchdog of the government, while at the same time it legitimates the Court's expansion of power and strengthens its image as an apolitical and independent institution.

Journal ArticleDOI
TL;DR: In Boumediene v. Bush, the Supreme Court held that noncitizens detained at Guantanamo Bay have the constitutional privilege of habeas corpus as mentioned in this paper, and the case can be given multiple interpretations, including a narrow reading under which it follows straightforwardly from Eisentrager.
Abstract: In Boumediene v. Bush, the Supreme Court held that noncitizens detained at Guantanamo Bay have the constitutional privilege of habeas corpus. The case can be given multiple interpretations, including a narrow reading under which it follows straightforwardly from Eisentrager. But Justice Kennedy's majority opinion omits consideration of a factor that plays a role in Eisentrager, namely, the limited constitutional status of the noncitizen. For this reason, the most distinctive element of Justice Kennedy's reasoning is its cosmopolitanism, not its libertarianism. The cosmopolitan elements of Boumediene recall the debate about the use of foreign law to interpret provisions of the U.S. Constitution, of which Justice Kennedy is a major proponent, and it is argued that critics of judicial cosmopolitanism should reject Boumediene as well.

20 Sep 2008
TL;DR: In this article, the authors examined the influence of opinion length on the development of lower federal court decision-making process and provided empirical evidence to answer theoretical and descriptive questions about law and provide an understanding of the normative dimensions of their empirical results.
Abstract: In recent years the visibility of empirical legal scholarship has increased dramatically. A large-and growing-group of scholars are deploying the tools of social science to better understand how law and legal institutions operate. While the list of important contributions made by this relatively new approach could stretch for pages, recent research has provided fresh and thought provoking answers to questions ranging from the influence of war on the Supreme Court's civil liberties jurisprudence to a far reaching and thorough probing of the determinants of lower federal court decisionmaking-examining, among other questions, the extent to which such judges are constrained by higher court rulings or jurisprudential considerations. More generally, this line of research uses empirical evidence to: (1) answer theoretical and descriptive questions about law, and (2) provide an understanding of the normative dimensions of their empirical results. In a related vein, empirical scholarship is increasingly interested in gaining a better understanding of both the development and characteristics of law. In the context of the U.S. Supreme Court, this has generally led scholars to analyze measurable features of the U.S. Supreme Court's written opinions as a means of understanding the dynamics of the Court's decisionmaking process. These studies use characteristics of the Court's opinions to fathom a range of diverse topics including the role of jurisprudential considerations, the Court's decision to interpret its own precedent, patterns of citation both within and across opinions, and linguistic analyses of opinion content7 and other court materials. While the particular goals of these projects vary, each is interested in explaining an element of Supreme Court decisionmaking and draws from the Court's opinions as the foundation for its empirical inquiry. Another common attribute of these studies is that they move beyond merely tallying the votes and voting behavior of Justices on the Court, a characteristic that greatly limited previous scholarship in this area. That is, while there is surely something to be gained by understanding Justices' voting behavior, it provides a blunt measure of what legal scholars care about-law itself. In this Article, we extend upon these efforts to understand law through empirical scholarship by providing a comprehensive analysis of a deceptively simple yet powerful characteristic of the Court's majority opinions: their length. While generations of jurists and commentators have often made observations about opinion length, and occasionally even offered preliminary evidence, there has not yet been, to the best of our knowledge, a large-scale systematic empirical investigation of opinion length at the U.S. Supreme Court. The results of the empirical analyses conducted below suggest this oversight is unfortunate and there is much to be gained from systematically studying opinion length. By using tools of social science, we not only lay bare the causal underpinnings of opinion length but also begin to shed light on the normative debates surrounding this topic. For example, many scholars and judges criticize the Court's tendency to write longer opinions and suggest law clerks are to blame for this outcome. We show that this normative conclusion rests on a weak empirical foundation, as law clerks are not the principal factor behind longer opinions. To reach these conclusions we proceed in several steps. First, we review what a wide range of individuals-from judges to lawyers to scholars-have said about opinion length, with a focus on explicating why opinion length as a quantity is intrinsically important. To preview, we submit that law depends on the language in a Court opinion, and an opinion's length is one measurable characteristic of legal language that we argue (and empirically demonstrate) is meaningful. Second, we examine various longitudinal trends in the length of the Court's opinions and subject existing explanations about variation in opinion length over time to empirical scrutiny. Third, we shift our focus from examining change in opinion length across time and take up the individual case-level determinants of opinion length. Here, we draw upon a half century of political science research and put forward hypotheses regarding the length of individual opinions, which we then empirically test. Fourth, we examine the importance of opinion length by analyzing the role it plays in influencing the manner in which lower federal courts utilize Court precedent in their opinions. This final analysis is one way of charting the influence of opinion length on the development of law in the lower federal courts. Finally, we conclude with thoughts for additional research in this developing area.

Posted Content
TL;DR: For instance, the authors traces the Rehnquist Court's doctrine of stare decisis from founding-era commentary to their origins in decisions of the Supreme Court, and concludes that the modern muddle over the doctrine has been with us since the founding era.
Abstract: Today's Court has been criticized for eschewing important commercial issues in favor of high-profile questions of constitutional significance. It should hardly be surprising that a Court that devoted its attention to cases involving property rights would maintain a relatively stable body of precedent in comparison to a Court that now focuses more substantially on questions of constitutional law. These and other factors could explain the twentieth-century Court's increasing tendency to overrule its prior decisions, even if the prevailing doctrine of stare decisis had remained relatively constant.Without the baggage of an implication from statistics, the stage is set for an examination of the premise that the Supreme Court's principles of precedent have been significantly loosened in recent decades. This Article examines that heretofore unexplored premise by tracing the primary aspects of the Rehnquist Court's doctrine of stare decisis from founding-era commentary to their origins in decisions of the Supreme Court.After an initial summary of the Rehnquist Court's stare decisis standards in Part II, this Article traces three principal strands of the modern Court's overruling rhetoric from founding-era commentary to their initial applications in decisions of the Supreme Court. For the most part, this Article concludes that the modern muddle over stare decisis has been with us since the founding era. Thus, whereas the Rehnquist Court has often equivocated about its power to overturn precedent based on a current perception of error, Part III first establishes that similar doctrinal tensions trace their origins to early American commentary and to decisions of the Marshall Court. Second, although the Rehnquist Court's notion that stare decisis is most powerful in cases involving vested property rights is sometimes challenged as ahistorical, Part IV identifies founding-era commentary on this issue and traces its application in early Supreme Court decisions. Finally, Part V identifies one strand of the Rehnquist Court's overruling rhetoric that is a product of the twentieth century.

31 Aug 2008
TL;DR: The Supreme Court has expressed an interest "that Congress be able to legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts" as mentioned in this paper.
Abstract: The Supreme Court has expressed an interest "that Congress be able to legislate against a background of clear interpretive rules, so that it may know the effect of the language it adopts." This report identifies and describes some of the more important rules and conventions of interpretation that the Court applies. Although this report focuses primarily on the Court's methodology in construing statutory text, the Court's approach to reliance on legislative history are also briefly described.

Posted Content
TL;DR: Babb as discussed by the authors presented the results of her nationwide survey regarding how each state handles family law matters and found that a total of thirty-eight states now have either statewide family courts, family courts in selected areas of the state, or pilot or planned family courts.
Abstract: The call for court reform remains critical in the face of the growing complexity of burgeoning family law cases nationwide. Many states have restructured their court systems using the unified family court model, resolving legal, personal, emotional, and social disputes with the aim of improving the well-being of families and children. Other states utilize the traditional approach, resulting in cases being handled in a fragmented, time-consuming and expensive manner. In this article, Professor Barbara A. Babb presents the results of her nationwide survey regarding how each state handles family law matters. The survey is a follow-up to her comprehensive 1998 survey and her 2002 survey update. The results of the recent analysis reveal that a total of thirty-eight states now have either statewide family courts, family courts in selected areas of the state, or pilot or planned family courts, representing seventy-five percent of states. The number of states without a specialized or separate system to handle family law matters has decreased from seventeen states in 1998 to thirteen in 2006. These changes are significant when one considers the complexities involved in court reform. The need for court reform remains an urgent one, as family law cases occupy a significant percentage of court dockets across the country. Families and children deserve a court system where justice is effective and efficient and where their legal, personal, emotional, and social needs are resolved in a therapeutic and holistic manner.

01 Jan 2008
TL;DR: In this paper, the authors argue that an informed public is needed, and should say "we consent." But credible, available objective information on tolling and road pricing's benefits and challenges is still lacked by the public.
Abstract: The public debate on tolling and road pricing can often be shaped by a community's political nature and its interest groups, which also tend to obscure majority opinion on the issue. The complex subject of road pricing can often be transformed into an object of politicking by a very vocal minority. Pricing's transformation into a political issue has, rather than stimulate discussion, resulted in policies that fail to address the real issues of how to deal with global warming, congestion management, or infrastructure financing, despite superficial majority appeal. George Gallup, one of public opinion measurement's early pioneers, suggested that politicians "will be better able to represent...the general public by avoiding the kind of distorted picture sent to them...by overzealous pressure groups who claim to speak for all the people, but actually speak for themselves" through measurement of public opinion. Public opinion greatly influences policymakers, although the public may have little daily contact with the public agenda's many issues. What can be done? The author argues that an informed public is needed, and should say "we consent." But credible, available objective information on tolling and road pricing's benefits and challenges is still lacked by the public. In order for the public to accept a solution, it needs to understand the problems. Public opinion also needs to be tracked over time, particularly in the context of regional or local initiatives - from idea to implementation to ultimate public usage. Tracking support and opposition's nature across project type variations and documenting how changing values, new knowledge, or a new state of the world can shift public opinion is also important.

Posted Content
Perry Dane1
TL;DR: Tanenbaus as mentioned in this paper discusses the landmark decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), which held that students have a constitutional right to refuse to salute the flag or recite the pledge of allegiance.
Abstract: This entry in the Encyclopedia of the Supreme Court of the United States (David S. Tanenbaus, Editor-in-Chief) discusses the landmark decision in West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).Barnette held that students have a constitutional right to refuse to salute the flag or recite the pledge of allegiance. The case marks an important moment in free speech jurisprudence and in the Supreme Court's treatment of the relationship between individual conscience and the state. It is particularly famous for its rhetorical flourishes, both in Justice Jackson's majority opinion and in Justice Frankfurter's vehement and unusually autobiographical dissent. It also figures importantly in the history of American minority religions and in the continuing struggle to define the fundamental kernel of American identity.My short essay discusses, among other things, Barnette's relationship to Minersville School District v. Gobitis, 310 U.S. 586 (1940), which it overruled; the decision's major doctrinal import for establishing that the guarantee of free speech embraces, not just the right to speak, but the right to refrain from enforced speech; its much lesser significance to the law of free exercise of religion; the role the case played in the jurisprudential and often personal tension on the Court over questions of judicial restraint and constitutional method; and the different views represented in the majority and dissenting opinions, and very much alive in a continuing American debate, over the nature and central themes of American patriotism and the ability of the American community to move beyond a purely "proceduralist" conception of itself and its deepest values.

Book
28 Dec 2008
TL;DR: The Stimulus for Legitimacy Experiment as discussed by the authors has been used to measure public opinion toward the U.S. Supreme Court and its policies in the context of African Americans.
Abstract: Preface 1. Legitimacy and American Democracy 2. Blacks, Civil Rights, and the Supreme Court 3. Establishing the Supreme Court's Legitimizing Capacity 4. Different Presses, Different Frames: Black and Mainstream Press Coverage of a Supreme Court Decision 5. Media Framing and the Supreme Court's Legitimizing Capacity 6. The Supreme Court's Legitimizing Capacity among African Americans: Support for Capital Punsihment and Affirmative Action 7. The Casual Relationship between Public Opinion toward the Court and Its Policies: The University of Michigan Affirmative Action Cases 8. Conclusion Appendix A: Stimulus for Legitimacy Experiment Appendix B: List of Black Newspapers Appendix C: Stimulus for Media Framing Experiment Appendix D: Question Wording for Media Framing Experiment Appendix E: Blacks and the U.S. Supreme Court Survey Notes Reference Index

Journal ArticleDOI
TL;DR: In this paper, the authors analyzed the judicial behaviour of Brazil's Supreme Court in the development and consolidation of democracy, by analyzing how its justices voted in decisions regarding the constitutionality of laws (judicial review) in the 1988-2003 period and investigating factors that influenced the Court's decisions.
Abstract: This study analyses interactions between Law, professionalism and politics. The primary intent is to understand the judicial behaviour of Brazil’s Supreme Court in the development and consolidation of democracy, by analysing how its justices voted in decisions regarding the constitutionality of laws (judicial review) in the 1988-2003 period and investigating factors that influenced the Court’s decisions. These decisions are analysed both quantitatively and qualitatively in search of: a) voting differences corresponding to the career of each member of the Court; b) justices’ attitudes as either Constitution interpreters or reproducers of legal texts; and c) the rapporteur’s profile, as well as the profiles of the justices that voted with him/her. I conclude that although political factors do shape the decision-making process of Brazil’s Supreme Court to some extent, professionalism plays a central role in determining its judicial behaviour.


Posted Content
TL;DR: In this article, the authors argue that the Supreme Court often decides its cases by ignoring, rather than following, the rule of law, and that the result of this obfuscation is an unrelenting assault on tribal interests before the Court.
Abstract: This year, while accepting the "Rule of Law" award from the American Bar Association, Justice Breyer proclaimed that our constitutional system "floats on a sea of public acceptance." At that time, Breyer's statements were meant to highlight his expectation that the Court will decide its cases following the "rule of law."However, Breyer's statement, while demonstrative of his faith in the rule of law, does not always ring true. In fact, as I argue, the Supreme Court often decides its cases by ignoring, rather than following, the rule of law. This problem is particularly acute in the body of federal Indian law - which has cast a disastrous shadow on tribal interests. Tribes have lost about three-quarters of their cases before the Supreme Court since 1988. Yet, curiously, prior to 1988, tribal interests won slightly more than half of their cases. What changed?In this Article, I attempt to answer this question. I will show that the Court identifies important, unrelated constitutional concerns that arise often in Indian law cases - issues with which they and their clerks are familiar - and then decides those matters. Only afterward, and mostly as an afterthought, does the Court then turn to the federal Indian law questions. The Court's federal Indian law analysis takes a secondary and often inferior role. The result of this obfuscation is an unrelenting assault on tribal interests before the Court - and the rule of law more generally. In this Article, I offer the first in-depth empirical assessment of the Supreme Court's recent Indian law decisions and argue in favor of a sweeping change in the means of analyzing Indian law. Instead of focusing on the Indian law questions, this Article shows how major Indian law cases were decided on other grounds to significant tribal disadvantage. Analyzing federal Indian law in this manner makes transparent the Court's frightening disrespect for the rule of law.