Showing papers on "Majority opinion published in 2015"

Chief Justice Roberts's Health Care Decision Disrobed: The Microfoundations of the Supreme Court's Legitimacy

Abstract: The 2012 challenge to the Affordable Care Act was an unusual opportunity for people to form or reassess opinions about the Supreme Court. We utilize panel data coupled with as-if random assignment to reports that Chief Justice Roberts's decision was politically motivated to investigate the microfoundations of the Court's legitimacy. Specifically, we test the effects of changes in individuals' ideological congruence with the Court and exposure to the nonlegalistic account of the decision. We find that both affect perceptions of the Court's legitimacy. Moreover, we show that these mechanisms interact in important ways and that prior beliefs that the Court is a legalistic institution magnify the effect of updating one's ideological proximity to the Court. While we demonstrate that individuals can and did update their views for multiple reasons, we also highlight constraints that allow for aggregate stability in spite of individual-level change.

'It's the Autonomy, Stupid!' A Modest Defense of Opinion 2/13 on EU Accession to the ECHR, and the Way Forward

Abstract: Opinion 2/13 of the Court of Justice of the European Union (striking down the Draft Agreement on accession to the European Convention on Human Rights) has evoked widespread “outrage.” The Court’s Opinion is generally derided as “unsubstantiated,” purely “self-interested,” and “playground politics.” This Article disagrees with that assessment. The Article provides the first comprehensive legal analysis and constitutional reconstruction of the Opinion’s many objections to show why the Court’s concerns are mostly warranted. At the same time, however, the Article explains why accession to the ECHR is not only important for human rights, but also vital to save the European Union itself. Finally, the Article points the way forward by identifying the changes that must be, and can be, made to allow accession to proceed.

The Law of Belligerent Occupation in the Supreme Court of Israel

Abstract: Since the 1967 War, in the course of which Israel occupied the West Bank and Gaza, the Supreme Court of Israel has considered thousands of petitions relating to acts of the military and other authorities in those territories (OT). This article reviews the contribution to the law of belligerent occupation of the Court’s jurisprudence in these cases. After discussing issues of jurisdiction and the applicable norms, the article reviews the way in which the Court has interpreted military needs, the welfare of the local population, changes in the local law, and use of resources; the attitude of the Court to the long-term nature of the occupation and the existence of Israeli settlements, settlers, and commuters in the OT; the introduction of a three-pronged test of proportionality in assessing military necessity; and hostilities in occupied territories. In the final section, I draw some general conclusions on the Court’s contribution to the law of occupation.

The Court of Justice of the European Union

Abstract: This chapter provides a concise introduction into the institution of the Court of Justice of the European Union in a diachronic perspective It deals with the structure of the Union courts located in Luxembourg; basic information about the type of judicial business the Court of Justice carries out; the composition of the Court of Justice, including the recent changes made to the way in which judges and advocates-general are selected; the often discussed style and structure of the judgments; and, finally, the even more frequently discussed and recurring question of the legitimacy of the Court of Justice

Foreword: The Supreme Court's Shadow Docket

Abstract: The 2013 Supreme Court Term provides an occasion to look beyond the Court’s merits cases to the Court’s shadow docket — a range of orders and summary decisions that defy its normal procedural regularity. I make two claims: First, many of the orders lack the transparency that we have come to appreciate in its merits cases. Some of those orders merit more explanation, and should make us skeptical of proposals to depersonalize the Court. Second, I address summary reversal orders in particular. As a general matter, the summary reversal has become a regular part of the Supreme Court’s practice. But the selection of cases for summary reversal remains a mystery. This mystery makes it difficult to tell whether the Court's selections are fair. I catalogue the Roberts Court’s summary reversals and suggest that they can be grouped into two main categories — a majority that are designed to enforce the Court’s supremacy over recalcitrant lower courts, and a minority that are more akin to ad hoc exercises of prerogative, or “lightning bolts.” The majority, the supremacy-enforcing ones, could be rendered fairer through identification of areas where lower-court willfulness currently goes unaddressed. We may simply be stuck with the lightning bolts.

Polarizing the Electoral Connection: Partisan Representation in Supreme Court Confirmation Politics

Abstract: Do senators respond to the preferences of their state's median voter or only to the preferences of their co-partisans? We develop a method for estimating state-level public opinion broken down by partisanship so that we can distinguish between general and partisan responsiveness. We use these estimates to study responsiveness in the context of Senate confirmation votes on Supreme Court nominees. We find that senators more heavily weight their partisan base when casting such roll call votes. Indeed, when their state median voter and party median voter disagree, senators strongly favor the latter. This has significant implications for the study of legislative responsiveness and the role of public opinion in shaping the members of the nation's highest court. The methodological approach we develop allows more nuanced analyses of public opinion and its effects, as well as more finely grained studies of legislative behavior and policy-making.

Building a bridge between reality and the constitution: The establishment and development of the Colombian Constitutional Court

Abstract: The Colombian Constitutional Court has gained a high reputation around the world. In a country that is plagued by the war on drugs, violence, inequalities, and corruption, the court has managed to strengthen the rights of the displaced and homeless victims of these conflicts, women, workers, sick persons, and other underprivileged social groups. The trust of the citizens in the court therefore is high, which is reflected in the constantly growing number of constitutional complaints and judicial reviews. By proving its independence, the court has also earned the respect of politicians. However, the court took on this role only gradually, and had to learn from mistakes made at the beginning. This article presents not only the history and the most important achievements of the court from its founding to the present, but also addresses the challenges it faces.

Issue-Specific Opinion Change The Supreme Court and Health Care Reform

Abstract: Did the Supreme Court decision in the Affordable Care Act case change public opinion about health care reform? Utilizing a multi-wave panel design with observations collected just hours before and after the Court’s decision, this study addresses macro-level questions concerning the Court’s effect on opinion about health care reform generally and the individual mandate specifically. Findings show that support for health care reform remained constant despite significant positive movement on the mandate. The panel design also allows for the analysis of micro-level change and the testing of hypotheses related to cognitive models, individual attributes, and assessments of the Court’s legitimacy. Despite some evidence of micro-level variation, the data ultimately point to a decision that induced a general, persistent, and relatively unconditional uptick in support for the provision the Court deemed constitutional

European Consensus and the Legitimacy of the European Court of Human Rights: Behind the scenes: Comparative analysis within the Court

Abstract: © Kanstantsin Dzehtsiarou 2015. In order to be effective, international tribunals should be perceived as legitimate adjudicators. European Consensus and the Legitimacy of the European Court of Human Rights provides in-depth analyses on whether European consensus is capable of enhancing the legitimacy of the European Court of Human Rights (ECtHR). Focusing on the method and value of European consensus, it examines the practicalities of consensus identification and application and discusses whether State-counting is appropriate in human rights adjudication. With over 30 interviews from judges of the ECtHR and qualitative analyses of the case law, this book gives readers access to firsthand and up-to-date information and provides an understanding of how the European Court of Human Rights in Strasbourg interprets the European Convention on Human Rights.

Opinions, influence, and zealotry: a computational study on stubbornness

Abstract: We present a simple, efficient, and predictive model for opinion dynamics with zealots. Our model captures curvature-driven dynamics (e.g., clear, smooth boundaries separating domains whose curvature decreases over time) through a simple, individual rule, providing a method for rapidly testing basic hypotheses about innovation diffusion, opinion dynamics, and related phenomena. Our model belongs to a class of models called dimer automata, which are asynchronous, graph-based (i.e., non-uniform lattice) variants of cellular automata. Individuals in the model update their states via a dyadic update rule; population opinion dynamics emerge from these pairwise interactions. Zealots are stubborn individuals whose opinion is not susceptible to influence by others. We observe experimentally that a system without zealots usually converges to the majority opinion, but a relatively small number of zealots can sway the opinion of the whole population. The influence of zealots can be further increased by placing zealots at more effective locations within the network. These locations can be determined by rankings from standard social network analysis metrics, or by using a greedy algorithm for influence maximization. We apply the influence maximization technique to a politically polarized social network to explore opinion dynamics in a real-world network and to gain insight about influence and political entrenchment through the zealot model's ability to sway the entire network to one side or the other.

Managing Judicial Innovation in the European Court of Human Rights

Abstract: Since its establishment in 1959, the European Court of Human Rights (ECtHR) has developed into a constitutionalist actor within and beyond the continent of Europe; a development that is in no small part due to judicial innovations, such as evolutive interpretation. Such innovation has resulted in a tension between the Court and the contracting parties that may conceivably call into question states’ diffuse support for the Court. We argue that this tension is addressed by the Court by means of a nascent model of judicial self-restraint discernible from the Court’s docket management, its cognisance of non-legal factors in particularly contentious cases, and its use of consensus-based interpretation. While arguably necessary, such a model is not cost-free; rather, it may have implications for the quality of the Court’s decision-making and its standing in the eyes of other stakeholders, such as NGOs and complainants.

Trajectories of Curial Power: The Rise, Fall and Partial Rehabilitation of the Indonesian Constitutional Court

Abstract: The Indonesian Constitutional Court’s surprisingly early and forceful assertion of its veto role in national politics has attracted a fair amount of academic attention. Contributions to date have emphasised three main explanatory factors: the charismatic leadership provided by the Court’s first Chief Justice, Jimly Asshiddiqie; Indonesia’s fragmented political party system; and the judges’ preparedness boldly to assert the Court’s powers in a way that built its public support. But is the Court still as powerful in its second decade as it was in its first? Two incidents in particular suggest that the Court’s strength may be declining: the attempted legislative curtailment of the Court’s mandate in 2011, and the resignation in 2013 of its third Chief Justice, Ali Mochtar, following his arrest on charges of corruption. While neither of these events has as yet resulted in any permanent change to the Court’s jurisdiction and powers, there is a sense that the Court is in trouble – that its heyday has passed and that it is less influential than it used to be. The purpose of this article is to evaluate this claim. It starts by developing a conceptual framework for assessing the performance of initially forceful constitutional courts. It then moves on to apply this framework to the Indonesian case. Assessed according to its capacity to support the consolidation of Indonesia’s democracy, the article argues, the Court’s power has indeed declined since its forceful start under Jimly. There are some signs, however, that the Court is on the rise again.

Presidential Rhetoric and Supreme Court Decisions

Abstract: At a joint press conference in April of 2012, a reporter asked President Barack Obama to speculate on how the Supreme Court might rule concerning the Patient Protection and Affordable Care Act Ultimately, the president said, "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress" (1) Whether or not this statement shaped the Court's decision in June to uphold the Act; the president's rhetoric fueled a debate in the popular media about the appropriateness of the president attempting to influence the Court by going public in this manner (eg, Editorial Board 2012; Hartman 2012) This is so even though the president mentioned National Federation of Independent Business v Sebelius (2012) on only two occasions prior to the Court's decision The bulk of the president s attention to this case occurred after the decision, in dozens of stump speeches delivered during the 2012 presidential election campaign These remarks are not the only high-profile instance of presidents targeting Supreme Court cases in their public rhetoric President Obama famously raised concerns about Citizens United v Federal Election Commission (2010) during his 2010 State of the Union Address and called on Congress to counteract Shelby County v Holder (2013), the Court's decision to invalidate the preclearance provision of the Voting Rights Act of 1965 George W Bush publicized his opposition to affirmative action prior to the Court's decisions in Gratz v Bollinger (2003) and Grutter v Bollinger (2003) (2) Even 50 years ago, President Johnson praised the Court's decisions in Brown v Board of Education (1954) and Shelley v Kraemer (1948) as he encouraged Congress to pass more expansive civil rights legislation (3) Despite these examples of presidential speeches referencing Supreme Court cases, we lack a firm understanding of when, how frequently, and why presidents mention Supreme Court cases in their public statements To date, most going public research that examines the interrelationships between the executive and judicial branches of government focuses on judicial nominations, not Supreme Court cases (Cameron and Park 2011; Holmes 2007, 2008; Johnson and Roberts 2004; Krutz, Fleisher, and Bond 1998; Maltese 1995a) In addition, only limited research shows that presidents increase their public attention to policy issues in response to Supreme Court cases on those issues (Flemming, Wood, and Bohte 1999; see Ura 2014) Moreover, despite the firestorm surrounding President Obama's comments delivered before the Court's ruling in the Sebelius case, we know next to nothing about how frequently presidents speak on pending decisions or whether they focus their public attention on decided cases We remedy this state of affairs by investigating the frequency of both written and spoken comments on historic and recently decided Supreme Court decisions To do this, we have cataloged the number of times per month that presidents mention Supreme Court cases in public comments from the Eisenhower to Obama administrations (1953-2012) We use these data to explore two significant topics First, we analyze the timing of presidential references to Supreme Court cases to determine whether presidents mention cases pending before the Court or discuss cases after they have been decided Because we find that presidents speak almost exclusively about Supreme Court cases after they have been decided, our primary research question asks: what explains the frequency of the president's monthly public commentary on decided Supreme Court cases? To answer this question, we build upon research that explains the number of presidential speeches over time (Eshbaugh-Soha 2010; Hager and Sullivan 1994; Kernell 1997; Powell 1999; Ragsdale 1984), which concludes, to varying degrees, that presidents speak publicly to bolster their reelection, historical legacies, and policy goals …

Lawyers' Perceptions of the U.S. Supreme Court: Is the Court a “Political” Institution?

Abstract: Do legal elites-lawyers admitted to federal appellate bars-perceive the Supreme Court as a "political" institution? Legal elites differentiate themselves from the mass public in the amount and sources of information about the Court. They also hold near-universal perceptions of Court legitimacy, a result we use to derive competing theoretical expectations regarding the impact of ideological disagreement on various Court perceptions. Survey data show that many legal elites perceive the Court as political in its decision making, while a minority perceive the Court as activist and influenced by external political forces. Ideological disagreement with the Court's outputs significantly elevates political perceptions of decision making, while it exhibits a null and moderate impact on perceptions of activism and external political influence, respectively. To justify negative affect derived from ideological disagreement, elites highlight the political aspects of the Court's decision making rather than engage in "global delegitimization" of the institution itself.While numerous studies exist about how the mass public perceives the U.S. Supreme Court, little is known about how elite lawyers with specialized legal expertise and an acute understanding of the U.S. Supreme Court perceive and assess the Court. Among these "legal elites," is the Court perceived as a political and ideologically driven institution, as legalistic and capable of objectively producing legal outputs, or something in between? While Congress and the Presidency are often seen by members of the mass public as divisive, ideologically polarizing, and uncivil, conventional scholarly wisdom suggests that the Supreme Court is seen as relatively more objective, legalistic, and above the political fray. Since many Americans do not possess a thorough understanding of the Court's policymaking, they are less aware of the extent to which the Court can be political and ideological (e.g., Epstein and Knight 1998; Maltzman et al. 2000; Segal and Spaeth 2002).1 Given that legal elites-here, lawyers admitted to federal appellate bars-do not suffer from similar informational disadvantages, it is interesting in and of itself to analyze where they fall along the "law versus politics" spectrum pertaining to the Court. Legal elites are socialized to respect legal principles and their application, but through professional practice and elevated attention to what the Court is doing, legal elites experience and observe the political nature of judicial decision making.Moreover, we confront the following empirical foundation: the legal elites studied in this article almost universally perceive the Court as legitimate. Our theoretical innovation is to develop competing models that could be the result of this characteristic. On one hand, Gibson and Caldeira's (2009a, 2009b) positivity theory implies that strong pre-existing legitimacy orientations may induce elites to hold near-universal apolitical perceptions of the Court, which should hold regardless of ideological disagreement with the Court's policymaking. On the other hand, legitimacy and perceptions of the Court's decision making and role in government may be more separable for legal elites than for average citizens. A motivated reasoning perspective (e.g., Kunda 1990; Taber and Lodge 2006) implies that the more legal elites disagree with the ideological direction of the Court's policymaking, the more "political" they will perceive the Court-including how it makes decisions and its role in American politics. Perceptions of the Court's decision making and role, but not legitimacy orientations, are an outlet for disagreement with Court policymaking. We test these competing models by analyzing survey data from the 2005 Annenberg Supreme Court study, which is a nationally representative survey of lawyers admitted to the U.S. Supreme Court and Courts of Appeals bars.Understanding how legal elites perceive the Court is valuable for several reasons and possesses important sociolegal implications. …

A very fearful Court? The protection of fundamental rights in the European Union after Opinion 2/13.

Abstract: In December 2014 the Court of Justice of the European Union found, in Opinion 2/13, that the Draft Agreement for the EU accession to the ECHR was not compatible with the Treaties; unfortunately, so...

The Reinterpretation of TFEU Article 344 in Opinion 2/13 and its Potential Consequences

Abstract: On 18 December 2014 the Court of Justice of the European Union (CJEU) delivered Opinion 2/13, and stunned the legal world by declaring that the Draft Agreement on the Accession of the EU to the European Convention on Human Rights was incompatible with the constituent treaties of the Union. In this contribution note I will focus on only one aspect of Opinion 2/13: the CJEU's interpretation and application of the TFEU article 344. Specifically, I will compare the approach taken in Opinion 2/13 with that of the CJEU's earlier case-law. I will argue that the reasoning and conclusion concerning TFEU article 344 in Opinion 2/13 is clearly at odds with this earlier case-law, notably the leading MOX Plant case. I will also demonstrate how the approach to the issue in Opinion 2/13 – if it indeed reflects lex lata – seriously affects numerous treaties that have already been concluded by the Union.

Bargaining Power in the Supreme Court: Evidence from Opinion Assignment and Vote Switching

Abstract: How can we assess relative bargaining power within the Supreme Court? Justices cast two votes in every case, one during the initial conference and one on the final merits of the case. Between these two votes, a justice is assigned to draft the majority opinion. We argue that vote switching can be used to detect the power of opinion authors over opinion content. Bargaining models make different predictions for opinion content and therefore for when other justices in the initial majority should be more or less likely to defect from initial positions. We derive hypotheses for how opinion authorship should affect vote switching and find that authorship has striking effects on switching. Authors thus have disproportionate influence and by extension so do chief justices, who make most assignments. This evidence is compatible with only the “author influence” class of bargaining models, with particular support for one model within this class.

Deliberation Rules and Opinion Assignment Procedures in State Supreme Courts: A Replication

Abstract: Conference discussion, voting, and opinion assignment affect court collegiality and policy output. We examine these institutional mechanisms at the state supreme courts and update decades-old research regarding these practices. We find significant differences between previous findings and our own. We note recent developments in deliberative rules and opinion assignment procedures at these courts and offer a preliminary analysis regarding their likely impact on court collegiality and doctrinal development. We conclude with suggestions for further research in light of our findings regarding strategic behavior and policy output at the state courts of last resort.

Meta-Custom and the Court: A Study in Judicial Law-Making

Abstract: Customary international law is one of the two main sources of international law. Yet there remains considerable uncertainty about the process through which rules of custom emerge or subsist – the ‘meta-law of custom’, which is now under consideration within the un International Law Commission (ilc). This article does not rehearse arguments about these uncertainties nor indeed engage with the current work of the ilc. Instead, it focuses on areas of certainty, viz. aspects of the law of meta-custom that are generally agreed and on which the ilc can draw. It argues that this certainty is the product of decades of jurisprudence, first of the Permanent Court and then of the International Court of Justice. In highlighting four crucial contributions and situating them in the debate about judicial law-making, this article seeks to raise awareness for the World Court’s (often unacknowledged) role in shaping the meta-law of custom.

The Precarious Link between Legislators and Constituent Opinions: Evidence from Matched Roll Call and Referendum Votes

Abstract: This paper tests theories of representation by studying laws that were challenged by referendum. For these laws, we can compare legislator roll call votes and citizen votes on the same law. In a sample of 3,242 roll call votes on 25 laws in nine states, I find that legislators voted congruent with majority opinion in their district 67 percent of the time, so representation generally “worked.” However, when legislator preferences differed from district opinion on an issue, legislators voted congruent with district opinion only 28 percent of the time. Electoral pressure measured by vote margin, proximity of next election, and term limits had at most a modest connection with congruence. The evidence is broadly consistent with the assumption of the citizen-candidate (or trustee) theory that legislators vote their own preferences.

Opinion Writing in the Federal District Courts

Abstract: American trial court judges’ roles and behavior vary greatly from their appellate court brethren. One such area of difference has to do with opinion writing behavior, an area where trial judges hold a great deal of discretion in determining whether to write an opinion and, if they do, how long the opinion should be. To examine what factors determine opinion writing behavior among district court judges, this study relies on analyses of an original dataset of civil cases that terminated in eighteen federal district courts from 2000 to 2006. The results indicate that legal, hierarchical, and institutional features are critical in motivating opinion writing and opinion length and that personal factors have very limited effects. The fruits of this exercise have important implications for how we view and model the behavior of trial court judges in the future.

A New Birth of Freedom? Obergefell V. Hodges

Abstract: The decision in Obergefell v. Hodges (1) achieved canonical status even as Justice Kennedy read the result from the bench. A bare majority held that the Fourteenth Amendment required every state to perform and to recognize marriages between individuals of the same sex. (2) The majority opinion ended with these ringing words about the plaintiffs: "Their hope is not to be condemned to live in loneliness, excluded from one of civilization's oldest institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them that right." (3) While Obergefell's most immediate effect was to legalize same-sex marriage across the land, its long-term impact could extend far beyond this context. To see this point, consider how much more narrowly the opinion could have been written. It could have invoked the equal protection and due process guarantees without specifying a formal level of review, and then observed that none of the state justifications survived even a deferential form of scrutiny. The Court had adopted this strategy in prior gay rights cases. (4) Instead, the Court issued a sweeping statement that could be compared to Loving v. Virginia, (5) the 1967 case that invalidated bans on interracial marriage. (6) Like Loving, Obergefell held that the marriage bans at issue not only violated the Due Process Clause but also violated the Equal Protection Clause. (7) Yet Obergefell differed from Loving in two important respects. Where Loving emphasized equality over liberty, (8) Obergefell made liberty the figure and equality the ground. (9) Obergefell also placed a far stronger emphasis on the intertwined nature of liberty and equality. (10) In doing so, Obergefell became something even more than a landmark civil rights decision. It became a game changer for substantive due process jurisprudence. This Comment will discuss how Obergefell opened new ground in that great debate. I. LIBERTY BOUND For well over a century, the Court has grappled with what unenumerated rights are protected under the due process guarantees of the Fifth and Fourteenth Amendments. (11) The Court has rejected positions at both extremes. On the one hand, the position that the Constitution protects no unenumerated rights leads to embarrassments of various kinds. The Ninth Amendment provides textual assurance of the existence of unenumerated rights. (12) And as a practical matter, the Court has recognized many unenumerated rights--including the right to direct the education and upbringing of one's children, (13) the right to procreate, (14) the right to bodily integrity, (15) the right to use contraception, (16) the right to abortion, (17) the right to sexual intimacy, (18) and, yes, the right to marry. (19) On the other hand, the Court has rejected the position that it has unfettered discretion to conjure unenumerated rights, noting that it "has always been reluctant to expand the concept of substantive due process because guideposts for responsible decision-making in this unchartered area are scarce and open-ended." (20) We are arguing over the difficult middle in this area of law. In shaping that middle ground, the Court has articulated two contrasting approaches. One is an open-ended common law approach widely associated with Justice Harlan's dissent in Poe v. Ullman (21) (a dissent given precedential weight by its adoption by a majority of the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey (22)). The other is a more closed-ended formulaic approach associated with the majority in Washington v. Glucksberg. (23) Obergefell did not categorically resolve the ongoing conflict between the two models, but it heavily favored Poe. Decided in 1961, Poe concerned a criminal ban on the use of contraception. (24) The Court dodged the issue of whether the law violated the Constitution by deeming the case nonjusticiable on standing and ripeness grounds. In dissent, Justice Harlan maintained that the Court should have reached the merits, and used the occasion to articulate standards for when a right could be deemed protected under the due process guarantees. …

A Dark Side of Virtue: The Inter-American Court and Reparations for Indigenous Peoples

Abstract: The Inter-American Court of Human Rights has now developed a significant jurisprudence on indigenous peoples, far more extensive than the case law of the other regional human rights tribunals Also, unlike the various United Nations institutions that promote indigenous rights, the Inter-American Court issues binding and detailed judgments As a result, the Court has become a global leader in the adjudication and redress of indigenous claims For this reason, this first close and critical examination of the Court’s reparations for indigenous peoples is vital With respect to non-monetary remedies, the Court has ordered the restitution of communal lands and other powerful measures Generally, these pioneering remedies have directly responded to victims’ preferences for restoration In contrast, the Court’s monetary reparations frequently disappoint Examples include token sums ordered for plundered ancestral resources and a neglect of individualized compensation By undercompensating indigenous petitioners in these ways, the Court fails to recognize them as full-fledged rights bearers Fully entitled to collective and individual rights, they accordingly require appropriate remedies on both communal and individual levels This critique is urgent because indigenous cases continue to flow to the Court, and its criteria are increasingly adopted by UN authorities, regional human rights institutions, and national courts Ultimately, this Article urges the Court to commit to a victim-centered approach for monetary damages, as it generally has done for non-monetary remedies Once rights violations are proven, if the Court does not reasonably respond to the way victims want to be restored, it will not adequately redress them As a result, the Court will betray its mandate as a human rights tribunal and undermine the individual and collective rights of indigenous peoples

The Second Dimension of the Supreme Court

Abstract: Describing the justices of the Supreme Court as ‘liberals’ and ‘conservatives’ has become so standard — and the left-right division on the Court is considered so entrenched — that any deviation from that pattern is treated with surprise. Attentive Court watchers know that the justices are not just politicians in robes, deciding each case on a purely ideological basis. Yet the increasingly influential empirical legal studies literature assumes just that — that a left-right ideological dimension fully describes the Supreme Court. We show that there is a second, more legally-focused dimension of judicial decision-making. A continuum between legalism and pragmatism also divides the justices, in ways that cuts against ideological preferences. The second dimension is systematic and significant, occurring in multiple different legal areas, and in consistent patterns. Seen in this way, the justices and their decisions can be understood in more complex terms, not just as ideological flag bearers, but as jurists who regularly have to choose between legal methodology and outcome preferences. In two dimensions, different patterns of coalitions emerge: in the second dimension, it is the Chief Justice and Justice Sotomayor, not Justice Kennedy, who sit at the median of the Court, and decide the balance of power.

Forty Years of Public Law

Abstract: It would be impossible in a short lecture to give a comprehensive survey of all the changes that have occurred in the last forty years in that branch of law known as "Israel common law". I will not, therefore, try to do so. Instead, I wish to single out the most distinctive phenomenon in this area of law. I refer to the conceptual/intellectual revolution in the outlook of the court regarding the nature of its judicial function. The original view, according to which the sole function of the court in the area of public law is to decide disputes between citizens and public authorities, has been abandoned and replaced by an outlook that views the court as an institution responsible for the legality of public administration, or, as the court it self is accustomed to defining the matter, for the rule of law. I shall divide my discussion into two parts. In the first part I will briefly discuss the prominent changes that have occurred in the judicial decisions regarding public law in recent years, and the judicial philosophy underlying these changes. I will then analyse a few judgments that were handed down during the first two or three years of the Supreme Court's existence in Israel, in an attempt to demonstrate the judicial outlook underlying those decisions. It seems to me that demonstrating this earlier outlook will suffice to make clear the nature of the judicial revolution.

Inside Crown Court: Personal Experiences and Questions of Legitimacy

Abstract: Introduction The system: what is the Crown Court and what are its functions? Court process and performance: constructing versions of 'the truth' Them and us: the divide between court users and professionals Structured mayhem: the organised yet chaotic nature of court proceedings Reluctant conformity: court users' compliance with the court process Legitimacy: court users' perceived obligation to obey, and what this is based on Conclusion.

The Judicial Activism of the European Court of Justice

Abstract: This paper addresses the judicial activism of the European Court of Justice. It highlights that the ECJ’s jurisprudence has been more concerned with system-building and formal legal rules than with material aspects, consequently qualifying the corresponding activism as a weak activism. The paper also analyzes its causes, concluding that the activism of the ECJ, in parallel with the activism of other international courts, is fostered by the inexistence of a proper system of separation of powers, the vagueness of the Treaties and the limited control over its activity. It concludes by enumerating the possible drawbacks of the ECJ’s activism, in particular with regard to the legitimacy of the European integration process.

The Ironies of Affirmative Action

Abstract: The Supreme Court’s most recent confrontation with race-based affirmative action, Fisher v. University of Texas, did not live up to people’s expectations — or their fears. The Court did not explicitly change the current approach in any substantial way. It did, however, signal that it wants race-based affirmative action to be subject to real strict scrutiny, not the watered-down version featured in Grutter v. Bollinger. That is a significant signal, because under real strict scrutiny, almost all race-based affirmative action programs are likely unconstitutional. This is especially true given the conceptual framework the Court has created for such programs — the way the Court has set up the constitutional analysis. On the other hand, the Court’s conceptual framework is wildly, almost absurdly, wrong. This Article will discuss the way the Court has set up the constitutional analysis of affirmative action and why it is wrong. It will do so in the form of a list — a list of the propositions we must accept if we are to take the Court’s affirmative action jurisprudence at face value. Some of these are things that the Court has said explicitly, and others are inferences I feel it is fair to draw. Not all of them command majority support, and when they do not, I note that. Some of them, I hope, bear their absurdity on their face; for others, I offer some explanation of why I think they do not make sense. In all, I hope this list supports the assessment I give my first-year constitutional law students: of all the areas of the Court’s jurisprudence we cover in our survey of constitutional law, the handling of race-based affirmative action is the least defensible.

The Politics of Evolution

Abstract: The controversy over teaching evolution or creationism in American public schools offers a policy paradox. Two sets of values—science and democracy—are in conflict when it comes to the question of what to teach in public school biology classes. Prindle illuminates this tension between American public opinion, which clearly prefers that creationism be taught in public school biology classes, versus the ideal that science, and only science, be taught in those classes. An elite consisting of scientists, professional educators, judges, and business leaders by and large are determined to ignore public preferences and teach only science in science classes despite the majority opinion to the contrary. So how have the political process and the Constitutional law establishment managed to thwart the people’s will in this self-proclaimed democracy? Drawing on a vast body of work across the natural sciences, social sciences, and humanities, Prindle explores the rhetoric of the evolution issue, explores its history, examines the nature of the public opinion that causes it, evaluates the Constitutional jurisprudence that upholds it, and explains the political dynamic that keeps it going. This incisive analysis is a must-read in a wide range of disciplines and for anyone who wants to understand the politics of biology.