Showing papers on "Majority opinion published in 2014"

Partisans in Robes: Party Cues and Public Acceptance of Supreme Court Decisions

Abstract: The public perceives the Supreme Court to be a legal institution. This perception enables the Court's legitimacy-conferring function, which serves to increase public acceptance of its decisions. Yet, the public acknowledges a political aspect to the Court as well. To evaluate how the public responds to the different images of the Supreme Court, we investigate whether and how depictions of specifically partisan (e.g., Republican) Court rulings shape public acceptance of its decisions while varying institutional, legal, and issue characteristics. Using survey experiments, we find that party cues and partisanship, more so than the imprimatur of the Court, affect public acceptance. We also find that polarization diminishes the effect of party cues. Attributing a decision to the Court does little to increase baseline acceptance or attenuate partisan cue effects. The Court's uniqueness, at least in terms of its legitimacy-conferring function, is perhaps overstated.

The Legitimacy of the US Supreme Court: Conventional Wisdoms and Recent Challenges Thereto

Abstract: Research on the legitimacy of the US Supreme Court has blossomed of late, with scholars investigating many different hypotheses derived from legitimacy theory. As the theory has been pushed, a number of new controversies have emerged. Here, we identify four such debates: (a) whether the Court's legitimacy rests on satisfaction with its performance, (b) whether support for the Supreme Court reflects the polarization of politics in the contemporary United States, (c) whether the Court's legitimacy requires belief in the “myth of legality”, and (d) whether judicial decisions can change public opinion. Our analysis of these issues generally concludes that the Supreme Court's legitimacy is reasonably secure, in part because individual rulings have little impact on support for the institution, in part because the Court has access to powerful and influential symbols of judicial authority, and in part because the current Supreme Court issues roughly equal numbers of conservative and liberal decisions.

The semiconstrained court: public opinion, the separation of powers, and the u.s. supreme court's fear of nonimplementation

Abstract: Numerous studies have found that elite and popular preferences influence decision making on the U.S. Supreme Court; yet, uncertainty remains about when, how, and why the Court is constrained by external pressure. I argue the justices are constrained, at least in part, because they fear nonimplementation of their decisions. I test this theory by utilizing a recent study of judicial power, which finds the Court enjoys greater implementation power in �vertical� cases (those involving criminal and civil liability) than in �lateral� cases (all others; e.g., those involving schools or government agencies). I find that Court constraint is strongest in important lateral cases�those cases in which implementation depends on support from nonjudicial actors. My findings suggest that Supreme Court constraint is driven by the justices' fear of nonimplementation and is, therefore, dependent on institutional context.

Are public opinion polls self-fulfilling prophecies?

Abstract: Psychologists have long observed that people conform to majority opinion, a phenomenon sometimes referred to as the ‘bandwagon effect’. In the political domain people learn about prevailing public ...

Children's Conformity When Acquiring Novel Conventions: The Case of Artifacts

Abstract: Prior research focused on children's acquisition of arbitrary social conventions (e.g., object labels) has revealed that both 3- and 4-year-old children conform to majority opinion. Two studies explored whether children show similar conformist tendencies when making category-based judgments about a less socially arbitrary domain that offers an objective basis for judgment: object functions. Three- and 4-year-old children watched a video in which two informants disagreed with a lone dissenter on the function of a novel artifact. Children were asked to categorize the object by stating with whom they agreed. The plausibility of the majority's response was manipulated across test trials. Results demonstrated that children were more likely to agree with the majority when majority and minority opinions were equally plausible, especially when the majority demonstrated an overt consensus. However, 4-year-olds actively eschewed the majority opinion when it was implausible in context of the artifact's functional de...

Backlash and Legitimation: Macro Political Responses to Supreme Court Decisions

Abstract: This article is a first attempt to develop and assess the competing predictions of the thermostatic model of public opinion and legitimation theory for the responses of public mood to Supreme Court decisions. While the thermostatic model predicts a negative relationship between the ideological direction of Supreme Court decisions and changes in public mood, legitimation theory predicts that changes in mood should be positively associated with the ideological content of the Court's actions. I assess these rival expectations by modeling the dynamic relationship between mood and cumulative judicial liberalism. The model estimates indicate a complex interaction between the Court and the mass public characterized by short-term backlash against Supreme Court decisions in mood followed by long-run movement toward the ideological positions taken by the Court. The results emphasize the legitimacy of the Court in American politics and point to a unique role for the Court in shaping public opinion.

Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United

Abstract: When Louis XVI presented Benjamin Franklin with a snuff box encrusted with diamonds and inset with the King s portrait, the gift troubled Americans: it threatened to corrupt Franklin by clouding his judgment or altering his attitude toward the French in subtle psychological ways. This broad understanding of political corruption rooted in ideals of civic virtue was a driving force at the Constitutional Convention.For two centuries the framers ideas about corruption flourished in the courts, even in the absence of clear rules governing voters, civil officers, and elected officials. Should a law that was passed by a state legislature be overturned because half of its members were bribed? What kinds of lobbying activity were corrupt, and what kinds were legal? When does an implicit promise count as bribery? In the 1970s the U.S. Supreme Court began to narrow the definition of corruption, and the meaning has since changed dramatically. No case makes that clearer than "Citizens United."In 2010, one of the most consequential Court decisions in American political history gave wealthy corporations the right to spend unlimited money to influence elections. Justice Anthony Kennedy's majority opinion treated corruption as nothing more than explicit bribery, a narrow conception later echoed by Chief Justice Roberts in deciding "McCutcheon v. FEC" in 2014. With unlimited spending transforming American politics for the worse, warns Zephyr Teachout, "Citizens United" and "McCutcheon" were not just bad law but bad history. If the American experiment in self-government is to have a future, then we must revive the traditional meaning of corruption and embrace an old ideal."

Determining Customary International Law: The ICJ's Methodology between Induction, Deduction and Assertion

Abstract: Methodology is probably not the strong point of the International Court of Justice (the Court) or indeed of international law in general. Unlike its approach to methods of treaty interpretation, the Court has hardly ever stated its methodology for determining the existence, content and scope of the rules of customary international law which it applies. There are only isolated references in the Court’s jurisprudence to the inductive and deductive method of law determination. It is not only the Court itself that has largely remained silent on its methodology for the determination of customary international law. The legal literature also has little to say on this subject. In view of the fact that determining the law always also means developing and, ultimately, creating the law, it is surprising that the question of the Court’s methodology has attracted such little interest. This article aims to refocus attention on the methodology used by the Court when determining the rules of customary international law which it applies, and to highlight the role played by methodology in the development of customary international law. It starts by defining the terms ‘induction’ and ‘deduction’ and examining their use by the Court. It then explores the situations in which the Court uses inductive and deductive reasoning, the different forms and functions of deduction, and the relationship between the two methods. The article challenges the various theories distinguishing between inductive and deductive custom, and demonstrates that the main method employed by the Court is neither induction nor deduction but assertion.

The International Court of Justice and the Judicial Function

Abstract: •Analyses how the International Court of Justice understands its role within the 'international judicial function' •Argues that the Court's contribution to the development of international law is subtle rather than progressive or radical •Explores how the Court does not advance a universal idea of international law but, through its judgments, shapes understanding of the international legal order This book evaluates the concept of the function of law through the prism of the International Court of Justice. It goes beyond a conventional analysis of the Court's case law and applicable law, to consider the compromise between supranational order and state sovereignty that lies at the heart of its institutional design. It argues that this compromise prevents the Court from playing a progressive role in the development of international law. Instead, it influences the international legal order in more subtle ways, in particular, in shaping understanding of the nature or form of the international legal order as a whole. The book concludes that the role of the Court is not to advance some universal conception of international law but rather to decide the cases before it in the best possible way within its institutional limits, while remaining aware of law's deeper theoretical foundations. The book considers three key elements: firstly, it examines the historical aspects of the Court's constitutive Statute, and the manner in which it defines its judicial character. Secondly, it considers the drafting process, the function of a dissenting opinion, and the role of the individual judge, in an attempt to discern insights on the function of the Court. Finally, the book examines the Court's practice in regard to three conceptual issues which assist in understanding the Court's function: its theory of precedent; its definition of the 'international community'; and its theory on the completeness of the international legal order.

Judicial Consensus and Public Opinion: Conditional Response to Supreme Court Majority Size

Abstract: Do judicial dissents affect mass politics? The conventional wisdom is that unanimous rulings boost support for Supreme Court decisions, while division fuels popular opposition. However, empirical analysis of public reaction to unanimity and dissent is sparse, incomplete, and inconsistent. Through a series of survey experiments, I expand upon existing research on public opinion of judicial unity. I find that reaction to judicial consensus is dependent on the ideological salience of the issue involved and that, contrary to conventional wisdom and recent findings, dissent can foster acceptance of rulings among the Court’s opponents by suggesting evidence of procedural justice.

Does the majority always know best? Young children's flexible trust in majority opinion.

Abstract: Copying the majority is generally an adaptive social learning strategy but the majority does not always know best. Previous work has demonstrated young children's selective uptake of information from a consensus over a lone dissenter. The current study examined children's flexibility in following the majority: do they overextend their reliance on this heuristic to situations where the dissenting individual has privileged knowledge and should be trusted instead? Four- to six- year-olds (N = 103) heard conflicting claims about the identity of hidden drawings from a majority and a dissenter in two between-subject conditions: in one, the dissenter had privileged knowledge over the majority (he drew the pictures); in the other he did not (they were drawn by an absent third party). Overall, children were less likely to trust the majority in the Privileged Dissenter condition. Moreover, 5- and 6- year-olds made majority-based inferences when the dissenter had no privileged knowledge but systematically endorsed the dissenter when he drew the pictures. The current findings suggest that by 5 years, children are able to make an epistemic-based judgment to decide whether or not to follow the majority rather than automatically following the most common view.

Ideological Proximity and Support for The Supreme Court

Abstract: Although the Supreme Court is a countermajoritarian institution by design, many scholars have contended that without concrete powers, the Court relies on public support for legitimacy. Accordingly, it is important to understand the relationship between people’s ideological proximity to the Court and their support for it. Existing empirical research suggests a correspondence between public opinion and the Court’s positions, but these studies do not directly compare masses and elites in a common space. To address these issues, we conducted an original survey asking respondents about their positions on ten recently decided Supreme Court cases. This allows us to estimate the positions of citizens and justices on the same ideological scale. Further, while some existing theories of perceptions of judicial legitimacy suggest similar relationships between ideological distance and various types of support for the Court, we propose a theory of heterogeneous responsiveness which posits that citizens’ ideological distance from the Court should be negatively related to their approval of and trust in the institution, but positively related to their support for its countermajoritarian function. Our empirical approach finds support for the theory.

Ideology, The Affordable Care Act Ruling, and Supreme Court Legitimacy

Abstract: the received wisdom in the scholarly literature on the us supreme Court is that the perceived legitimacy of the institution is largely independent of the Court's policy output. legitimacy is thought to be rooted in more stable factors, such as support for democratic values, and thus to be immune from ideological discontent with any particular decision. While recent research has demonstrated a general associa- tion between political predispositions and legitimacy, questions remain about the extent to which the specific decisions of the Court might shape legitimacy judgments in the mass public. in this paper, we examine the relationship between ideology, political sophistication, and evaluations of supreme Court legitimacy in the aftermath of the recent decision on the affordable Care act. our findings suggest a substantial role for Court policymaking in shaping perceptions of legitimacy in the mass public, but the nature of the relationship is conditional on political sophistication.

Do Policy Messengers Matter? Majority Opinion Writers as Policy Cues in Public Agreement with Supreme Court Decisions

Abstract: Does the identity of a majority opinion writer affect the level of agreement a Supreme Court decision receives from the public? Using a survey experiment, we manipulate majority opinion authors to investigate whether individuals are willing to agree with Supreme Court opinions authored by ideologically similar justices even though the decisions cut against their self-identified ideological policy preferences. Our study provides insight into the extent to which policy cues—represented by a political institution’s policy messenger—affect agreement with a given policy. We find that a messenger effect indeed augments the level of agreement a given Supreme Court case receives.

An Economic Theory of Supreme Court News

Abstract: In this article, we develop and test an economic theory of Supreme Court news. We hypothesize that information about the Third Branch is newsworthy when it has lower production costs and qualities attractive to the audiences and advertisers desired by news organizations. We examine Supreme Court news in elite newspapers, television news broadcasts, and online news sources during the October 2008 and 2010 terms. The results of our quantitative analyses indicate that all three types of news outlets are more likely to provide content about Supreme Court decisions with substantive importance but vary in their responses to costs and qualities appealing to the lay audience. We conclude by discussing the similarities and differences among news outlets with regard to their selection of Supreme Court information as news content.

Retaining Judicial Professionalism: The New Guiding Cases Mechanism of the Supreme People's Court

Abstract: In 2011 and 2012, the Supreme People's Court (SPC) published its first “guiding cases.” Guiding cases serve as decision-making models that must be taken into account by lower courts when deciding similar cases. This study argues that the establishment of a national formal legal mechanism to improve consistency in adjudication across jurisdictions and geographical boundaries will strengthen judicial professionalism. The guiding cases system provides the SPC with an instrument to steer adjudication in lower courts discreetly, thereby allowing it to exercise significant influence over legal developments. Given the complexity of cases, compared to law set out in statute, non-lawyers may have tremendous difficulty in understanding and assessing the effects of guiding cases; this in turn acts as a protective mechanism against extra-legal interference. The reform is an example of the SPC's delicate manoeuvring in order to retain judicial professionalism in a hostile yet politically conservative environment. It reflects an attempt by the SPC to strengthen its position vis-a-vis other actors of the party-state and to consolidate the judiciary's function as an adjudicative institution that works on the basis of formal legal mechanisms.

How judges think in the Brazilian Supreme Court: Estimating ideal points and identifying dimensions

Abstract: We use NOMINATE (Nominal Three Step Estimation) (Poole and Rosenthal, 1983, 1997) to estimate ideal points for all Supreme Court Justices in Brazil from 2002 to 2012. Based on these estimated preferences we identify the nature of the two main dimensions along which disagreements tend to occur in this Court. These estimates correctly predict over 95% of the votes on constitutional review cases in each of the compositions of the Court which we analyze. The main contribution of the paper is to identify that the main dimension along which preferences align in the Brazilian Supreme Court is for and against the economic interest of the Executive. This is significantly different than the conservative-liberal polarization of the US Supreme Court. Our estimates show that along this dimension the composition of the Court has been clearly favorable to the Executive's economic interests, providing the setting in which the dramatic transformation in institutions and policies that the country has undergone in last two decades could take place.

Reputation and Judicial Tactics: A Theory of National and International Courts

Abstract: 1. Introduction 2. A theory of the reputations of courts 3. Constraints on courts 4. Tactics to increase courts' reputations 5. National court case study - Israeli Supreme Court 6. International court case study - European Court of Human Rights 7. When compliance is irrelevant 8. Conclusions.

Legal Reasoning of the Court of Justice of the EU

Abstract: How does the Court of Justice reason? What interpretative techniques is it using to arrive at its conclusions? In itself, this topic may appear somewhat theoretical and dry. However, if coupled with the issue of judicial legitimacy and normative debate about the 'proper' way for a court to reason, a heated debate ignites quickly amongst all lawyers, not just a few jurisprudential devotees. Perhaps as a sign of the times, both issues, judicial reasoning and the legitimacy of the Court of Justice, are coming to the fore (again). This review essay critically examines a recent addition to the debate: Gunnar Beck’s 'The Legal Reasoning of the Court of Justice of the EU'. First, by the way of introduction, the main threads of the past debates on the judicial method in the Court are recalled. Second, the key arguments of the reviewed book are outlined with a few critical reflections added. Third, some broader reflections on the debates on judicial method of the Court are offered, zooming in on one or perhaps the recurring question in particular: the pro-Union interpretative tendency in the reasoning of the Court and its limits.

Why Are All the White Students Sitting Together in College? Impact of "Brown v. Board of Education" on Cross-Racial Interactions among Blacks and Whites.

Abstract: This year commemorates the 60th anniversary of Brown v. Board of Education, the 1954 Supreme Court decision that mandated desegregation of America's public schools. By all accounts, Brown was a watershed moment in the nation's history, nullifying exclusionary policies and practices in public services that characterized de jure segregation and challenging the "separate but equal'' doctrine that had been order-of-day since Plessy v. Ferguson (1896). Although "few rulings have ever been [both] so extravagantly praised and condemned" (Patterson, 2001, p. xi), historians and legal scholars agree that Brown is arguably one of the most time-honored decisions in American constitutional law (Anderson, 2006).There are good reasons for Brown's popularity. The landmark decision precipitated racial integration in public spaces first through education, then later housing and transportation, to name a few. Brown attempted to redress past inequalities, promote equality of opportunity in public education, and extend equal protections of law for racial minorities who at the time were legally denied access to adequate education, which, in part, set precedence for outgrowth social movements (Jasper, 2010) toward disability, gender, sexuality, bilingual education, children of undocumented immigrants, and a menu of other civil rights issues (Anderson, 2004). Consequently, Brown became known for more than what it was-an education policy case-but also for what it could mean for others denied equal protections of law.For all its immediate good, the enduring effects of Brown are still in question. Derrick Bell (2004), often touted as a leading voice of critical race theory, once asked: "How could a decision that promised so much, by its terms, accomplished so little, have gained so hallowed a place . . . that its mere mention. . . sparked a contained but very real demonstration?" (pp. 1-2) Others have raised similar poignant questions, challenging the legacy of Brown and its failure to eliminate a constitutionally-protected system of racial discrimination and inequality in education (Patterson, 2001). The following titles of more recent books and articles reflect this sentiment of Brown's inability to achieve the desired outcome of educational equality: "A Tale of Two Browns: Constitutional Equality and Unequal Education," "Still Separate and Unequal" and "The Broken Promise of the Brown Decision" (Anderson, 2006; Gold, 2007; Irons, 2004). All of these, and swells of empirical essays, imply that Brown's intended effects have been minimally achieved or muted at best, if at all.Despite the debates, Brown had undeniable effects on public education, especially at the K-12 level (Spencer, 2008), but its influence seems to be more nuanced than some suggest. For instance, the Brown decision promised to integrate 11.5 million Black and White students enrolled in schools across nearly 11,200 districts in the United States (Patterson, 2001). And while the decision did lead to more integrated schools, it did not completely dismantle predominantly White or predominantly Black schools settings, as many districts remained de facto segregated for years after Brown (Wallenstein, 2003).Related, the unanimous ruling of the Supreme Court in Brown provided access for Blacks to avenues of educational opportunity in once all-White schools (Patterson, 2001). Of course, there were unintended consequences of Brown at the K-12 level too; scholars have documented how desegregation of public schools displaced, dismissed, and all-too-often decimated Black educators including qualified teachers and well-intended principals (Karpinski, 2006; Tillman, 2004).That Brown extended equal protections of law (i.e., 14th amendment) to Blacks in public education and lead to them-few initially but many more over time-gaining access to higher quality White schools is consistent with the Court's rationale in the majority opinion. Recall the majority opinion held:Segregation of White and Negro children in public schools of a state solely on the basis of race deprives Negro [emphasis added] children of equal educational opportunities . …

Experimental Evidence for Minorities’ Hesitancy in Reporting Their Opinions: The Roles of Optimal Distinctiveness Needs and Normative Influence

Abstract: Four experiments provided evidence for when and why opinion minorities take more time than opinion majorities to report their opinions. In Study 1, participants who wrote about feeling overly different from—but not overly similar to—others were slower to report their opinions after being led to believe that they held a minority than majority opinion. In Studies 2 and 3, minority opinion holders’ hesitancy was attenuated among participants with a high dispositional need for uniqueness, and this effect was mediated by low need for uniqueness individuals’ beliefs that their minority opinions were less normative than their majority opinions (Study 3). In Study 4, a subtle need to belong manipulation amplified the differences in response times between opinion minorities and majorities. Together, these studies show that minorities’ hesitancy in reporting their opinions depends on their motives to belong versus be unique and stems from normative influence processes.

Nonconsensus opinion model on directed networks

Abstract: Dynamic social opinion models have been widely studied on undirected networks, and most of them are based on spin interaction models that produce a consensus In reality, however, many networks such as Twitter and the World Wide Web are directed and are composed of both unidirectional and bidirectional links Moreover, from choosing a coffee brand to deciding who to vote for in an election, two or more competing opinions often coexist In response to this ubiquity of directed networks and the coexistence of two or more opinions in decision-making situations, we study a nonconsensus opinion model introduced by Shao et al [Phys Rev Lett 103, 018701 (2009)] on directed networks We define directionality ? as the percentage of unidirectional links in a network, and we use the linear correlation coefficient ? between the in-degree and out-degree of a node to quantify the relation between the in-degree and out-degree We introduce two degree-preserving rewiring approaches which allow us to construct directed networks that can have a broad range of possible combinations of directionality ? and linear correlation coefficient ? and to study how ? and ? impact opinion competitions We find that, as the directionality ? or the in-degree and out-degree correlation ? increases, the majority opinion becomes more dominant and the minority opinion's ability to survive is lowered

A Model of International Judicial Administration? the Evolution of Managerial Practices at the International Criminal Court

Abstract: I INTRODUCTION One year after the tenth anniversary of the International Criminal Court (ICC or Court), it is almost impossible for the international legal scholar not to come across one of the many "stock takings" and assessments of the Court's (1) juridical performance so far, its achievements, impact, and challenges. (2) This development is highly fortunate because it creates the necessary momentum to galvanize further support for the Court, even from the many skeptics who predicted the Court would die an unnoticed and uneventful death within a couple years of its creation. (3) With its current 122 States Parties, the Court has come a long way since its inception with the sixtieth ratification in 2002. (4) Global support seems to be growing slowly yet steadily, with thirteen accessions since only 2010. However, in this article we do not intend to examine the Court's performance, achievements, or shortcomings as a central player on the scene of international criminal justice. Rather, we will take a critical look behind the scenes of the Court, focusing on its institutional and administrative framework as an institution that is striving to become "[a] [m]odel of [p]ublic [administration." (5) In order to evaluate the merits and shortcomings of the Court's structure, as well as the approach taken by its senior management and stakeholders when fundamental decisions had to be made, we begin this article with a brief overview of the Court's institutional and administrative structure and a discussion of the relationship of the principal organs of the Court to one another. Subsequently, we discuss a small selection of elemental topics--most prominently among them the Court's financial management--with a view to evaluating the extent to which the members of the institution have been able to learn from their initial mistakes and revamp the Court's operations into those of an efficient and effective international criminal justice mechanism. II MANAGERIAL PRACTICES The Court, like any other institution of comparable size and structure, heavily relies on managerial practices that have evolved over the past eleven years of its existence. Its administrative framework has developed in response to the growing demands of administrative regulation, in particular through Presidential Directives, Administrative Instructions, and Information Circulars. (6) The Court's practices, be they in conjunction with governing administrative norms or in the absence of any formal codification, remain a major driver of the Court's managerial dynamics. In the abstract, managerial practices can best be described as the recurrent performances of material activities. (7) In a given normative and hierarchical framework, these routine contributions and activities serve to define the average scope and structure of operations, as well as relevant modi operandi. Managerial practices always stand in a specific relationship to the normative framework in which operations are carried out. They define the relationship between (formal) rules and (informal) practices in a given operative context. The more detailed the normative framework that regulates the pertinent procedures and administrative structures, the more limited the scope for the development of practices that are not a mere mise en oeuvre of the authoritative legal context, but rather a pragmatic solution to a recurrent operational challenge. In particular, heavily hierarchical management structures with a strong concentration of decision-making resting upon a comparatively limited number of governing leaders will rely on governance structures that leave little space for the development of pragmatic practices. Examples of this can be found in the military. However, where a governance structure is newly established it is highly unlikely that a comprehensive normative framework regulates all of its operations and processes in sufficient detail. …

Court Curbing via Attempt to Amend the Constitution: An Update of Congressional Attacks on the Supreme Court from 1955-1984

Abstract: This study investigates the validity of the common practice of differentiating between “high” and “low frequency” periods of congressional attacks on the Supreme Court. In-depth examination of the Congressional Record from 1955–1984 reveals 1,497 previously uncounted constitutional amendment attacks. Rather than starting and stopping, the never-ending court curbing efforts of this era evolved in four phases, differentiated by shifts in an unexamined dimension—leadership of attacks. This suggests that modern attacks may be a way for partisan and regional coalition managers to “signal” others (including those outside the Court) in efforts to maintain, build, or assert their party's dominance. Court curbing may therefore play a greater role than realized in party system development, making congressional attacks an overlooked “mechanism” through which coalitional change may be both opposed and wrought.

About the Court

Abstract: About the Court, Judges, history, careers, strategic statement, Court performance, annual reports

The Constitutionality of Negotiated Criminal Judgments in Germany

Abstract: In a long-awaited judgment, the German Constitutional Court in 2013 upheld the constitutionality of the 2009 German law authorizing the negotiation of criminal judgments between the court and the parties. In this Article, we provide background on recent developments in “plea bargaining” law and practice in Germany and offer a critique of the Court’s decision.The Court attempted to rein in negotiated judgments by giving the statute a literal reading, emphasizing the limitations it places on negotiations, and strictly prohibiting any consensual disposition outside the statutory framework. The Court builds its judgment on the notion that the search for truth, the proportionality of punishment, and transparency of negotiations are important values in criminal justice and that they must be respected even in the context of negotiated cases. The Court also attempts to retain control over the enforcement of its judgment by indicating that it may need to revisit the legislation’s constitutionality if courts, prosecutors, and defense attorneys continue to ignore the statutory provisions as interpreted by the Court. The Court therefore deserves praise for attempting to regulate and limit the practice of negotiated judgments. As we discuss in the Article, this is especially true if one compares the efforts of the Federal Constitutional Court to the hands-off approach of the United States Supreme Court with respect to plea bargaining.At the same time, the Court arguably bypassed the more fundamental issues that a system of “plea bargaining” raises in the context of German criminal justice. The Court may also have failed to sufficiently consider the practical effects of its ruling on everyday negotiations in German courts. Finally, the Court probably is too optimistic in assuming that it is possible to make practitioners abide by a set of technical rules created by judicial fiat for a practice that is basically built on the consent of the parties and judges.

Criminal Fair Trial Rights: Article 6 of the European Convention on Human Rights

Abstract: Introduction 1.1 Framing the scope of the argument 1.2 Framing the measuring stick against which the European Court's case law will be tested 1.3 Outlining the structure of the book and how the argument is developed Section I A Interpreting Article 6 A.1 The European Court sometimes seeks guidance from the Vienna Convention in interpreting Article 6 A.2 Object and purpose: the Court's attempts at teleological interpretation are marked by incoherence A.3 The European Court uses several techniques to overcome ordinary literal meanings A.4 The European Court inconsistently cites the need for 'practical and effective' interpretation A.5 The European Court's use of extrinsic materials is opaque A.6 Democracy and Article 6 A.7 Building the foundations for a new approach to interpreting Article 6 B The European Court's Role in Article 6 Cases B.1 The European Court adopts an ostensibly modest and deferential approach in Article 6 cases B.2 The European Court states that its role is not to enunciate general doctrines B.3 The European Court makes incoherent claims about avoiding abstract challenges B.4 The European Court describes its role as limited by the 'fourth instance' doctrine B.5 The Fourth instance doctrine is riddled with exceptions to the point of incoherence B.6 The European Court's approach to the law of evidence is marked by incoherence B.7 Building the foundations for a new approach to how the European Court describes its own role C Out of One, Many? The Internal Structure of Article 6 C.1 The European Court has adopted several approaches to the internal structure of Article 6 C.2 The European Commission's decision in Nielsen provided a reasonably clear approach C.3 The European Court sometimes describes the components of Article 6 as independent minimum requirements C.4 The European Court has used three approaches based on the 'specific aspects' maxim C.5 Building the foundations for a new approach to the internal structure of Article 6 D The Implied Rights D.1 What are the implied rights? D.2 The early implied rights jurisprudence was poorly explained D.3 At least eight justifications for implied rights can be identified in the European Court's case law D.4 The case law indicates uncertainty over the boundaries of the implied rights D.5 Building the foundations for a new approach to the implied rights Section II E Assessing Infringements and Violations: the Puzzle of Article 6 E.1 Article 6 is different E.2 The 'proceedings as a whole' test is used inconsistently and incoherently E.3 Counterbalancing and defect-curing are attempts to provide a modest amount of structure to the European Court's balancing E.4 The European Court's 'never fair' case law is inconsistent with its other case law, and internally incoherent E.5 Assessing whether certain evidence was the 'sole or decisive' evidence against a defendant involves a particularly opaque form of semi-structured balancing E.6 The European Court is inconsistent in approaching the extent to which the public interest may justify a restriction on Article 6 E.7 Building the foundations for a new approach to assessing violations of Article 6 Conclusion

The Impact of Supreme Court Activity on the Judicial Agenda

Abstract: When the Supreme Court takes action, it establishes national policy within an issue area. A traditional, legal view holds that the decisions of the Court settle questions of law and thereby close the door on future litigation, reducing the need for future attention to that issue. Alternatively, an emerging interest group perspective suggests the Court, in deciding cases, provides signals that encourage additional attention to particular issues. I examine these competing perspectives of what happens in the federal courts after Supreme Court decisions. My results indicate that while Supreme Court decisions generally settle areas of law in terms of overall litigation rates, they also introduce new information that leads to increases in the attention of judges and interest groups to those particular issues.

Ex Ante Versus Ex Post Deliberations: Two Models of Judicial Deliberations in Courts of Last Resort

Abstract: This Article discusses supreme and constitutional courts’ internal organizational cultures, that is, the way in which justices organize their work and establish informal decision-making norms. Courts of last resort are often presented as exemplary deliberative institutions. The conference meeting, which convenes judges in quiet seclusion to debate, has been glorified as the most significant step in a court’s decision-making process. Based in part on qualitative empirical research, I argue, however, that French, American, and European Justices may not deliberate in the full sense that deliberative democrats have theorized.The Article distinguishes two types of high court deliberations, which I call the “ex ante” and the “ex post” models. In the first model, prevalent in the French and European courts, judges draft and deliberate the court’s merits opinion before the case is orally argued and scheduled for the conference meeting. In other words, cases are decided before being decided. The second model is typical of Anglo-American supreme courts, in particular the United States Supreme Court; in this model, justices do most of the deliberative work after the case has been orally argued and a vote on the merits has taken place at the conference. In other words, cases are decided after being decided.Despite different judicial cultures, one common theme is that in both ex ante and ex post courts, judges tend to decide cases through a succession of multiple small group interactions involving non-judicial personnel rather than a single prolonged face-to-face deliberation. The upshot of the Article is the formulation of a dual-influence hypothesis: a court’s style of judicial opinions may form deliberations as much as deliberations shape opinions.

Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Georgia v. Russian Federation)

Abstract: This chapter describes the evolution of the history of case concerning application of the international convention on the elimination of all forms of racial discrimination (Georgia v. Russian Federation) and advisory opinions that has been dealt by the International Court of Justice (ICJ). The case is organised with the final question or claim made by the parties, basis of jurisdiction, proceedings, orders rendered by the Court, head notes and operative paragraphs of the judgments, orders and advisory opinions, names of judges and ad hoc judges who have appended declaration, separate opinion, dissenting opinion individually or jointly with other judges, each source of law the Court has cited and information on the litigation teams. The chapter covers the duration of cases and advisory opinions of the Permanent Court of International Justice (PCIJ) and the ICJ; and records of states as applicant(s) and/ or respondent(s). Keywords: Georgia; international convention; International Court of Justice (ICJ); Permanent Court of International Justice (PCIJ); racial discrimination; Russian Federation