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Showing papers on "Majority opinion published in 2009"


Journal ArticleDOI
Tom S. Clark1
TL;DR: This article developed a formal model of judicial-congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court, finding that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self-restraint.
Abstract: AmajorfocusofjudicialpoliticsresearchhasbeentheextenttowhichideologicaldivergencebetweentheCourtandCongress can explain variation in Supreme Court decision making. However, conflicting theoretical and empirical findings have given rise to a significant discrepancy in the scholarship. Building on evidence from interviews with Supreme Court justices and former law clerks, I develop a formal model of judicial-congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court. An original dataset identifying all Court-curbing legislation proposed between 1877 and 2006 is then used to assess the influence of congressional hostility on the Court’s use of judicial review. The evidence indicates that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self-restraint. When Congress is hostile,theCourtusesjudicialreviewtoinvalidateActsofCongresslessfrequentlythanwhenCongressisnothostiletowards the Court. D uring each of the two recent Supreme Court confirmation hearings in the United States Senate, the Judiciary Committee noted its concern with what it perceived to be an overly aggressive Supreme Court and an imbalance in the separation of powers. Chairman Arlen Specter opened the confirmation hearings of John Roberts by commenting, “I’m very much concerned about what I conceive to be an imbalance in the separation-of-powers between the Congress and the court.IamconcernedaboutwhatIbluntlysayisthedenigration by the court of congressional authority.” 1 Senator Specter’s comments highlight a claim about American democracy which has been at the center of a lively academic debate for decades: the Supreme Court is an insulated legal body, free to make decisions away from the political pressures of Congress and the Executive. In this article, I challenge that claim. First, relying on evidence from interviews with Supreme Court justices and former law clerks, I establish a set of assumptions about judicial preferences that departs from previ

221 citations


Journal ArticleDOI
TL;DR: For instance, the American National Election Study, a prominent source of the conclusion that people know little if anything about the U.S. Supreme Court, codes as incorrect the reply that William Rehnquist is (was) a justice on the U Supreme Court (which, of course, technically, he was not) as mentioned in this paper.
Abstract: Conventional wisdom holds that the American people are woefully ignorant about law and courts. In light of this putative ignorance, scholars and other commentators have questioned whether the public should play a role in the judicial process—for example, whether public preferences should matter for U.S. Supreme Court confirmation processes. Unfortunately, however, much of what we know—or think we know— about public knowledge of the Supreme Court is based upon flawed measures and procedures. So, for instance, the American National Election Study, a prominent source of the conclusion that people know little if anything about the U.S. Supreme Court, codes as incorrect the reply that William Rehnquist is (was) a justice on the U.S. Supreme Court; respondents, to be judged knowledgeable, must identify Rehnquist as the Chief Justice of the U.S. Supreme Court (which, of course, technically, he was not). More generally, the use of open-ended recall questions leads to a serious and substantial underestimation of t...

152 citations



Journal ArticleDOI
TL;DR: This paper developed a scaling model to estimate opinion locations and justice ideal points along a common, continuous dimension using the citations between opinions as data, assuming that each opinion has a fixed location in this unidimensional doctrine space and that the probability of a citation that affirms rather than disputes the doctrine of the precedent decreases as the doctrinal distance between them increases.
Abstract: A significant limitation in the empirical analysis of judicial politics has been the difficulty of measuring judicial policy. Theories of bargaining and opinion writing make predictions about where an opinion will fall in policy space, but empirical tests of those theories have not benefited from direct measures of opinion location. This paper develops a scaling model to estimate opinion locations and justice ideal points along a common, continuous dimension using the citations between opinions as data. We assume that each opinion has a fixed location in this unidimensional doctrine space and that the probability of a citation that affirms rather than disputes the doctrine of the precedent decreases as the doctrinal distance between them increases. This proximity citation model is applied to original datasets of citations in search and seizure and freedom of religion opinions written by the Warren, Burger and Rehnquist Courts. We use the resulting estimates of opinion content to evaluate median and non-median voter theories of Supreme Court bargaining and opinion writing. We find striking empirical support for theoretical models that predict the majority opinion will fall at the ideal point of the median member of the majority coalition as opposed to the court's median or the opinion author's ideal point. Given the centrality of theories of judicial policymaking to various substantive problems in political science, the method of scaling opinions developed in this paper can facilitate a variety of future research.

84 citations


Journal ArticleDOI
TL;DR: Gibson et al. as mentioned in this paper used the theory of positivity bias to investigate the preferences of Americans regarding the confirmation of Judge Samuel Alito as an associate justice of the Supreme Court.
Abstract: Gibson, Caldeira, and Spence (2003a, 2003b, 2005) expound the theory of positivity bias in their analysis of the legitimacy of the U.S. Supreme Court in the aftermath of Bush v. Gore. This theory asserts that preexisting institutional loyalty shapes perceptions of and judgments about court decisions and events. In this article, we use the theory of positivity bias to investigate the preferences of Americans regarding the confirmation of Judge Samuel Alito as an associate justice of the Supreme Court. More specifically, from the theory of positivity bias, we derive the hypothesis that preferences on the Alito confirmation are shaped by anterior commitments to the Supreme Court. Based on an analysis of a national panel survey, we find that those who have a high level of loyalty toward the Supreme Court rely much more heavily on what we term judiciousness—in contrast to ideology, policy, and partisanship—in forming their opinions on whether to confirm Alito. Thus, institutional loyalty provides a decisive frame through which Americans view the activity of their Supreme Court.

80 citations



Book
28 Feb 2009
TL;DR: The International Criminal Court is at a crossroads as discussed by the authors and faces its first challenges as a judicial institution, and a systematic survey of emerging law and practice in four main areas: the relationship of the court to domestic jurisdictions, prosecutorial policy and practice, the treatment of the Court's applicable law and the shaping of its procedure.
Abstract: BRILL Phone (NL) +31 (0)71-53 53 500 Phone (US) +1-617-263-2323 Email: marketing@brill.com The International Criminal Court is at a crossroads. In 1998, the Court was still a fiction. A decade later, it has become operational and faces its first challenges as a judicial institution. This volume examines this transition. It analyses the first jurisprudence and policies of the Court. It provides a systematic survey of the emerging law and practice in four main areas: the relationship of the Court to domestic jurisdictions, prosecutorial policy and practice, the treatment of the Court’s applicable law and the shaping of its procedure. It revisits major themes, such as jurisdiction, complementarity, cooperation, prosecutorial discretion, modes of liability, pre-trial, trial and appeals procedure and the treatment of victims and witnesses, as well as their criticisms. It also explores some of challenges and potential avenues for future reform.

64 citations


BookDOI
01 Jan 2009

63 citations


Journal ArticleDOI
TL;DR: In the absence of more information from the Court, the authors identify plausible legal arguments for the next few rounds of litigation and assess the stakes for social welfare, and conclude that some of the most salient legal arguments after Heller have little or no likely consequence for public welfare based on available data.
Abstract: What will happen after Heller? We know that the Supreme Court will no longer tolerate comprehensive federal prohibitions on home handgun possession by some class of trustworthy homeowners for the purpose of, and perhaps only at the time of, self-defense. But the judiciary could push further, if nothing else by incorporating Heller's holding into the Fourteenth Amendment and enforcing it against states and municipalities. In fact, the majority opinion offered little guidance for future cases. It presented neither a purely originalist method of constitutional interpretation nor a constraining doctrinal framework for evaluating other regulation - even while it gratuitously suggested that much existing gun control is acceptable. In the absence of more information from the Court, we identify plausible legal arguments for the next few rounds of litigation and assess the stakes for social welfare. We conclude that some of the most salient legal arguments after Heller have little or no likely consequence for social welfare based on available data. For example, the looming fight over local handgun bans - an issue on which we present original empirical data - seems largely inconsequential. The same can be said for a right to carry a firearm in public with a permit. On the other hand, less prominent legal arguments could be quite threatening. Taxation and regulation targeted especially at firearms might be presumptively disfavored by judges in the future, along the lines of free speech doctrine. This could have serious consequences. In addition, Second Amendment doctrine might generally dampen enthusiasm for innovative regulatory responses to the problem of gun violence. The threat of litigation may inhibit policy experimentation ranging from micro-stamping on shell casings, to pre-market review of gun design, to so-called personalized firearms, and beyond.

57 citations


Posted Content
TL;DR: The Federal Constitutional Court (FCC) in its recent decision on the constitutionality of the Lisbon Treaty has been compared to the decision of the German Basic Law as discussed by the authors on the Maastricht Treaty.
Abstract: In announcing the decision of the Bundesverfassungsgericht (“Federal Constitutional Court” or “FCC”) on the constitutionality of the Lisbon Treaty, the Presiding Justice of the Second Senate summed up the judgment by proclaiming: “The German Basic Law says “yes” to the Treaty of Lisbon.” The decision initially received praise from commentators for having struck down only the existing version of an accompanying federal law while preserving Germany’s ratification of the Treaty more broadly. The decision has thus been likened to the FCC’s 1992 decision upholding the German ratification of the Maastricht Treaty. This short comment explains what is old and what is new about the FCC’s current decision about Europe. The comment exposes the FCC’s highly deceptive invocation of having taken a “Europe-friendly” stance in interpreting the German Basic Law. The discussion exposes the myriad contradictions within the opinion and the decision’s strange consequences both in terms of the concrete workings of the European Union and in terms of its grand theory of democracy. The comment highlights the FCC’s mistaken understanding of the European Parliament, the profound failure of the Court’s reflexive idea of state sovereignty, and the way in which the opinion condemns Europe to a perpetual state of deficiency. In all this, the Federal Constitutional Court installs itself as the sole arbiter of Germany’s constitutional destiny - even above the people themselves. A subversive opinion with more twists and turns than even the FCC itself comprehends, the decision ultimately stands as a crude speech act asserting little more than the power of the Court itself.

56 citations


Journal ArticleDOI
Tom S. Clark1
TL;DR: The authors applied an axiomatic measure of polarization developed by Esteban and Ray (1994) to study ideological heterogeneity on the Court to develop a "polarization statistic" and compared this method with other common polarization measures and provided evidence for the reliability of the measure.
Abstract: The study of ideological polarization is an important topic in research ranging from behavioral-level to institutional studies of politics. Polarization, however, has received little attention in the context of the Supreme Court, even while popular press and legal commentary suggest ideological heterogeneity on the Court is consequential for the Court’s policy outputs. In this article, I apply an axiomatic measure of polarization developed by Esteban and Ray (1994) to study ideological heterogeneity on the Court to develop a “polarization statistic.” I compare this method with other common polarization measures and provide evidence for the reliability of the measure.

Journal ArticleDOI
TL;DR: In 2002, the U.S. Supreme Court struck down a photo-graphic identity-based voter authentication rule in the state of Missouri as discussed by the authors, and several other states followed suit.
Abstract: ttheheartoftheeffortstoimproveelectionsinthe United States are two important values:accessandintegrity.Toguaranteetherighttovote,thepollsmustbeaccessibletoallwhowishtovote.Toguaranteelegitimateelections,onlyeligiblepeopleshouldbeallowedtovote,andallvotesmustbetabulatedcorrectly.Thesevalueshavedifferentimplica-tionsforadministrativeprocedures,rangingfromtheimple-mentation of registration systems to the choice of votingequipmenttothesetupofpollingplacesandtrainingofpollworkers.Oftenthesevaluesworkhandinhand,butattimestheyareatodds.Suchisthecasewiththeauthenticationofvotersatthepolls(seeNationalCommissiononFederalElec-tionReform2002).Thedebateovervoteridentificationisusuallyframedasatradeoffbetweenthegoalsofguaranteeingaccessandensur-ing integrity. Stricter authentication procedures, includingphotographicidentificationandproofofcitizenship,providehighlevelsofassurancethatthosevotingareinfactlegalvot-ers.Suchproceduresmay,however,createburdensthatpre-ventmanylegitimatevotersfromparticipating.Thedebatefurtherdividesalongpartisanlines,asitiscommonlyconjec-turedthatthoseleastlikelytohavetherequiredidentificationreadilyavailablearedisproportionatelypoor,racialminori-ties,andelderly,and,thus,morelikelyDemocratic.Conse-quently,effortstocreatevoter-authenticationproceduresinstatesquicklybecomepartisanpoliticalmatters.Statelawsstipulatetheacceptablewaysthatpollworkersmayverifythatanindividualisalegitimatevoter,andiswhoheorsheclaimstobe.Thereisconsiderablevariationamongthestatesinthemethodsallowed.Thedifferentrulesgrouproughlyintotwopolarcases:(1)thosestatesthatallowpollworkerstorequestidentification,and(2)thosestatesthatdonot.Themoststringentformofauthenticationcurrentlyinuserequiresthatallvoterspresentagovernment-issuedphoto-graphicidentificationatthepolls.Onlytwostatescurrentlyhavesuchlaws,althoughanothertwodozenallowpollwork-ersthediscretiontorequestidentification.Inthesestates,vot-ersmayultimatelybeaskedforidentificationinordertovote.Theother25statesemployarangeoflessstringentidentifi-cationrules,includingsignatureonanaffidavitoraregistra-tionlist;providingproofofresidence,suchasautilitybill;orsimplystatingone’snameandaddress.Inthesestates,votersneednotpresentidentificationinordertovote.Before2000,less stringent identification rules were the norm, but theelection-reformeffortsfollowingthe2000electionledmanystatestoadoptstrictervoter-authenticationrules.Notsurprisingly,theselawshavebeenchallengedincourt,andthequestionbeforetheSupremeCourtwashowtobal-ancethetwingoalsofaccessandintegrity.Thosechalleng-ingphoto-IDlawsarguedthattheyplaceundueburdenonvotersandhavediscriminatoryconsequences;thosedefend-ingthelawsarguedthattheyareessentialtoensurethelegit-imacy of elections. The State of Missouri struck down aMissouriphoto-identificationlawastoorestrictive,butithefederal courts let stand such laws in Arizona and Indianaandleftopenthepossibilityoffurtherchallengestoidentifi-cation laws in other contexts.The majority opinion in theIndianacase(

Journal ArticleDOI
TL;DR: This paper showed that the most common measure of the Supreme Court's ideological output, whether the Court's decision is liberal or conservative, suffers from systematic bias, and they trace this bias empirically and explain the undesirable consequences it has for empirical analyses of judicial behavior.
Abstract: Political scientists have developed increasingly sophisticated understandings of the influences on Supreme Court decision making. Yet, much less attention has been paid to empirical measures of the Court's ideological output. We develop a theory of the interactions between rational litigants, lower court judges, and Supreme Court justices. We argue that the most common measure of the Supreme Court's ideological output—whether the Court's decision is liberal or conservative—suffers from systematic bias. We trace this bias empirically and explain the undesirable consequences it has for empirical analyses of judicial behavior. Specifically, we show that, although the Court's preferences are positively correlated with the ideological direction of the justices’ decision to reverse a lower court, the attitudes of the justices are negatively related—and significantly so—to the ideological direction of outcomes that affirm lower court decisions. We also offer a solution that allows scholars to work around this “a...

Journal Article
TL;DR: Choi et al. as mentioned in this paper used publicly available information and easy to reproduce measures, and constructed an alternate set of rankings of the state courts that they then match up against the rankings from the U.S. Chamber of Commerce.
Abstract: Judges and courts get evaluated and ranked in a variety of contexts. The President implicitly ranks lower-court judges when he picks some rather than others to be promoted within the federal judiciary. The ABA and other organizations evaluate and rank these same judges. For the state courts, governors and legislatures do similar rankings and evaluations, as do interest groups. The U.S. Chamber of Commerce, for example, produces an annual ranking of the state courts that is based on surveys of business lawyers. These various rankings and evaluations are often made on the basis of subjective information and opaque criteria. The secretive nature of these evaluations potentially allows organizations such as the Chamber of Commerce to use rankings to advance their own specific agenda. Our Article rests on the premise that these organizations that do their rankings based on opaque data and criteria need competition. Competition will force competing metrics to make transparent the underlying measures on which they are based and thereby foster the generation of higher quality metrics to rank judges. Using publicly available information and easy to reproduce measures, we construct an Copyright © 2009 by Stephen J. Choi, Mitu Gulati, and Eric A. Posner. t Murray and Kathleen Bring Professor of Law, New York University School of Law. tt Professor of Law, Duke University School of Law. ttt Kirkland and Ellis Professor of Law, University of Chicago School of Law. Thanks to David Achtenberg, Scott Baker, Scott Comparato, Jake Dear, Michael Gerhardt, Kim Krawiec, David Levi, William Marshall, Un Kyung Park, Mark Ramseyer, Laura Stith, and participants at the Measuring Judges and Justice conference for comments and conversations about the project. Thanks to Mirya Holman for assistance with research. HeinOnline -58 Duke L.J. 1313 2008-2009 1314 DUKE LAW JOURNAL [Vol. 58:1313 alternate set of rankings of the state courts that we then match up against the rankings from the Chamber of Commerce. Our measures are admittedly coarse. Nevertheless, to the extent they are credible, transparent, and significantly different from those of organizations like the Chamber of Commerce, the hope is that they will force those organizations to better explain the methods and information that underlie their rankings. TABLE OF CONTENTS Introduction 1314 I. T he M easures 1318 A . P roductivity 1320 B . O pinion Q uality 1321 C . Independence 1323 D . Com posite M easures 1325 II. Ranking the State High Courts 1326 A. The U.S. Chamber of Commerce Rankings 1326 B. Prior Academic Literature on Ranking State Courts 1328 C. R anking the Courts 1333 1. The Court System s 1333 2. Productivity 1335 3. C itations 1337 4. Independence 1342 D. Digging Deeper: Ranking Courts while Controlling for StateSpecific F actors 1351 E. The U.S. Chamber of Commerce Study: Som e O bservations 1354 III. Courts or Judges? 1358 C onclusion 1363 Appendix A: Common Law Areas Only 1364 Appendix B: Abnormal Score Rankings 1370 Appendix C: Judge Ranking Using Majority Opinion Productivity M easure 1378 Appendix D: Variable Definitions 1379

Journal ArticleDOI
TL;DR: The authors examined the treatment of Supreme Court cases from the 1976-1986 terms by the Circuit Courts of Appeals from 1976 to 1986, and found that lower court judges follow Supreme Court plurality opinions.
Abstract: To what extent do lower court judges follow Supreme Court plurality opinions? By examining treatments of Supreme Court cases from the 1976-1986 terms by the Circuit Courts of Appeals from 1976 to 2...

Journal ArticleDOI
TL;DR: In this article, a simulation of the Supreme Court is used to teach students to decide cases and write an opinion from the perspective of the justice they are playing, instead of playing the role of a generic justice who must decide a case.
Abstract: Role-playing activities and simulations have been popular teaching tools in political science courses for many years. One area where simulations and role-playing activities have been used extensively is constitutional law. These projects can range from a short judicial decision-making scenario to a full-semester Supreme Court simulation involving lawyers, interest groups, and justices. This paper explains how to incorporate a sophisticated Supreme Court simulation into an undergraduate constitutional law course. Instead of having students play the role of a generic justice who must decide a case, the simulation requires students to assume the roles of current Supreme Court justices and they must decide cases and write an opinion from the perspective of the justice they are playing. This type of role-playing assignment requires higher order thinking because students must apply their substantive knowledge of constitutional law and the jurisprudence of their justice in deciding important constitutional issue...


Journal ArticleDOI
TL;DR: This paper found no differences in polarization between groups in which members were in consensus coming into the discussion and groups containing a minority and majority opinion, and found that groups containing more extreme members did not polarize more than groups not containing an extreme member.
Abstract: Participants rated their opinion about the decriminalization of marijuana on a 1 to 9 scale and then discussed the issue in three‐person groups. Group members who used more extreme ends of the scale to rate their opinion talked more and took more turns. Groups did polarize on their consensual opinion from the mean of individuals' pre‐group opinions. Groups containing a more extreme member did not polarize more than groups not containing an extreme member. No differences in polarization were found between groups in which members were in consensus coming into the discussion and groups containing a minority and majority opinion.


Journal ArticleDOI
TL;DR: The full-text of this article is not currently available on the LRA The original published version is available on publisher's webiste: http://hrlroxfordjournals.org/content/9/1toc672DOI: 101093/hrlr/ngn033
Abstract: The full-text of this article is not currently available on the LRA The original published version is available on the publisher's webiste: http://hrlroxfordjournalsorg/content/9/1toc DOI: 101093/hrlr/ngn033

Posted Content
TL;DR: This article found that when justices ask more questions of the petitioner's attorney, the Court is significantly less likely to reverse the lower court decision, and that the side that asks more questions is more likely to lose their case.
Abstract: This paper tests whether Supreme Court justices tip their hands at oral arguments. Specifically, we test whether, when justices ask more questions of one side, that side is more likely to lose their case. The findings support the theory; namely, when justices ask more questions of the petitioner's attorney the Court is significantly less likely to reverse the lower court decision.

Journal ArticleDOI
TL;DR: In this paper, the effect of public opinion on state court decision making has been investigated and necessary conditions for judicial responsiveness to public opinion have been delineated, and empirically tested.
Abstract: Critics traditionally portray state supreme court elections as low-information events that fail to accomplish the stated goal of engendering accountability to the public Recent changes in the intensity of contestable judicial elections have led scholars to consider the effect of public opinion on state court decision making We delineate necessary conditions for judicial responsiveness to public opinion, integrating research on state court decision making with the broader literature on representation We then empirically test our framework for judicial responsiveness Our findings suggest that the strength of the electoral connection between state supreme court justices and their constituents is quite dependent on method of judicial retention and the visibility of the case


Journal ArticleDOI
TL;DR: The analysis of the profile and role of China's Supreme People's Court needs updating, and the Court is actively developing new interpretative formats that concern its relations with sister organizations and the National People's Congress as discussed by the authors.
Abstract: The analysis of the profile and role of China's Supreme People's Court needs updating. The Court is actively developing new interpretative formats that concern its relations with sister organizations and the National People's Congress. This article contextualizes these formats within China's changing institutional dynamics. China does not have a separation of powers; however, the Chinese system of justice does have its own separation of functions. The Court is playing a pivotal role from within the changing separation of functions, but the extent and quality of its independence from other organizations are open to question. In the context of deepening legal reform, the law is still incomplete and imperfect, and Court interpretation has often served as “secondary law.” In short, pragmatic judicial interpretations have sometimes preceded legislation by Congress. Remedy such as secondary law might be justified as absolute administrative necessity given the outstanding structural problems that characterize Ch...

Book
18 Dec 2009
TL;DR: Kahdi as mentioned in this paper, Court, and Anthropologist Writing a Case: Court Actors and Court Procedure From Community to Court: Gendered Experience of Divorce Allegations of Repudiation: Determining Intention in Disputed Divorce Witnessing and Authority in the Court: Elders, Shaykhs, and Shehas Money Matters: Khului Divorce in Context Conclusion: The Court is a Hospital
Abstract: Introduction: Kahdi , Court, and Anthropologist Writing a Case: Court Actors and Court Procedure From Community to Court: Gendered Experience of Divorce Allegations of Repudiation: Determining Intention in Disputed Divorce Witnessing and Authority in the Court: Elders, Shaykhs, and Shehas Money Matters: Khului Divorce in Context Conclusion: The Court is a Hospital

11 Nov 2009
TL;DR: The work of as discussed by the authors describes and analyzes the work of the Supreme Court of Canada, emphasizing its internal environment and processes, while situating the institution in its broader governmental and societal context.
Abstract: This dissertation describes and analyzes the work of the Supreme Court of Canada, emphasizing its internal environment and processes, while situating the institution in its broader governmental and societal context. In addition, it offers an assessment of the behavioural and rational choice models of judicial decision making, which tend to portray judges as primarily motivated by their ideologically-based policy preferences. The dissertation adopts a historical institutionalist approach to demonstrate that judicial decision making is far more complex than is depicted by the dominant approaches within the political science literature. Drawing extensively on 28 research interviews with current and former justices, former law clerks and other staff members, the analysis traces the development of the Court into a full-fledged policy-making institution, particularly under the Charter of Rights and Freedoms. This analysis presents new empirical evidence regarding not only the various stages of the Court’s decision-making process but the justices’ views on a host of considerations ranging from questions of collegiality (how the justices should work together) to their involvement in controversial and complex social policy matters and their relationship with the other branches of government. These insights are important because they increase our understanding of how the Court operates as one of the country’s more important policy-making institutions. The findings have significant implications for debates over judicial activism and the relationship between courts and the other branches of government when dealing with the Charter. The project also concludes that the justices’ role perceptions – the ideas, norms and rules that govern their role as judges and that of the institution – both shape and constrain their decision making behaviour. Understanding judicial behaviour with a focus on role perceptions allows for bridge-building between the competing explanations of judicial decision making and for theory-building in the broader judicial politics literature.

Journal Article
TL;DR: Trevaskes et al. as mentioned in this paper examined the role of law and criminal justice process in dealing with individuals who committed crimes in the city of Baotou in Inner Mongolia.
Abstract: Courts and Criminal Justice in Contemporary China, by Susan Trevaskes. Lanham: Lexington Books, 2007. xii + 227 pp. US$70. 00/£46.00/euro72.45 (hardcover), US$27.95/£17.99/euro28.33 (paperback). Courts and Criminal Justice in Contemporary China is a timely study that examines two important aspects of judicial power, law-and-order campaigns and expressive punishment. Empirical research on criminal justice issues in the PRC is scarce, and Susan Trevaskes' study helps fill this gap. In Trevaskes' words, the book "examines today's court practices and their antecedents in China by exploring 'law on display' in local court trials, rallies and campaigns" (p. 1). Using the records of a local court, it analyzes the role of law and criminal justice process in dealing with individuals who committed crimes in the city of Baotou in Inner Mongolia. The book analyzes "how legal ideologies and practices help to shape and sustain dominant visions of 'the order of things' in [Chinese] society" (p. 3). The book contains eight chapters in addition to the introductory chapter. For readers not familiar with the Baotou court system, the introductory chapter gives a brief account of how the two levels of court, namely the Intermediate Court and the Basic Court, function. It also introduces readers to the principal sources of court records and official publications which have been used for analysis in this study. Chapter 1 analyzes historical and contemporary legislative developments in criminal court work with reference to two central problems, politics and authoritybuilding. The two problems push the court in different directions, resulting in tensions such as inconsistent adjudication and sentencing practice and the continued struggle to present the court system to the public as an effective mechanism for controlling crime. Subsequent chapters turn to the main tasks and agendas of court work. Chapter 2 discusses the use of law propaganda work and open court trials to help judicial officers develop their judicial authority and enhance the legitimacy of judicial decision-making and sentencing. Chapter 3 is concerned with expressive or "severe" punishment, such as occurs in public sentencing rallies. The main aim of public sentencing rallies is to educate the public about the crime and to demonstrate that the government is "tough on crime and criminals". This chapter contains a number of illustrative examples in which convicted and sentenced criminals are humiliated and shamed in the public space. …

Posted Content
TL;DR: In this paper, the authors provided concrete answers to common questions regarding the use of the call for response and call for the views of the Solicitor general by the Supreme Court, and provided much-needed data for litigators and litigants to be able to estimate the probability of their case being heard by the Court.
Abstract: The Supreme Court frequently uses two tools to gather information about which cases to hear following a petition for writ of certiorari: the call for response and the call for the views of the Solicitor General. To date, there has been no empirical analysis of how the Supreme Court deploys these tools and little qualitative study. This Article fills in basic gaps in the literature by providing concrete answers to common questions regarding these two tools and offers detailed analysis of how and why states, private parties, and the United States (through the Solicitor General) respond to petitions. In addition, the Article provides much-needed data for litigators and litigants to be able to estimate the probability of their case being heard by the Court, and provides insight on how to react when the Court calls for a response or calls for the views of the Solicitor General. To reach these conclusions, the Article relies on detailed, quantitative analysis of a novel, 30,000-petition dataset, as well as interviews with top Supreme Court litigators, former Supreme Court clerks, and former staff of the Clerk’s office.

Journal ArticleDOI
TL;DR: In this paper, the effect of procedural reform on the Taiwan Supreme Court's performance was investigated using a newly assembled data set on appeals terminated by the court for the period 1996-2008, and it was shown that the 2003 reform failed to transform the function of the Court from correcting error to a greater role in leading the development of legal doctrine.
Abstract: Theoretical works suggest that granting a supreme court discretion in choosing the cases to be decided on the merits could shift dockets away from traditional case-based adjudication and towards issue-based adjudication. According to this prediction, legislatures can recast supreme courts’ roles in society by modifying jurisdictional rules. This study tests this prediction empirically. Using a newly assembled data set on appeals terminated by the Taiwan Supreme Court for the period 1996-2008, we study the effect of jurisdictional-source procedural reform, a switch from mandatory jurisdiction to discretionary jurisdiction in 2003, on the Taiwan Supreme Court’s performance. Our study shows that the 2003 reform failed to transform the function of the Court from correcting error to a greater role in leading the development of legal doctrine as intended by the legislature. Our findings suggest that a supreme court can adjust the way it conducts business according to its own preference and the role it defines for itself, which are influenced both by the background against which it operates and the inertia of its members’ working habits. Our study informs policy-makers that merely amending procedural rules, without more, is unlikely to change the function of a supreme court. Our findings also suggest that statutorily dictated mandatory jurisdiction may not be implemented by a high court faced with caseload pressure.

Journal ArticleDOI
TL;DR: In this article, the authors discuss the recent decision of the ICC Pre-Trial Chamber to issue an arrest warrant against President Al Bashir from the viewpoint of the choice of the alleged mode of responsibility.
Abstract: The author discusses the recent decision of the ICC Pre-Trial Chamber to issue an arrest warrant against President Al Bashir from the viewpoint of the choice of the alleged mode of responsibility. In emphasizing the need and the difficulty of choosing the most proper concept of criminal responsibility, he explains how international criminal law has oscillated from the notion of joint criminal enterprise to the concept of co-perpetration and other forms of participation. In particular, he illustrates how in the first decisions in the ICC system (Lubanga, Katanga and Chui) the notions of co-perpetration and perpetration-by-means have been at the core of the case law. In this regard, he analyses both the majority opinion and the dissent of Judge Usacka in Al Bashir, highlighting the strong influence of German legal thought on the ICC Statute and on recent ICC case law.