Showing papers on "Plurality opinion published in 2013"

Do Judges Follow the Law When There Is No Fear of Reversal

Abstract: Some political scientists maintain that Supreme Court justices are more likely than other appellate court judges to vote their ideological preferences. It is argued that Supreme Court justices may vote their preferences without constraint from precedent because of a lack of electoral or political accountability, absence of ambition for higher office, and status as a member of a court of last resort that controls its own docket. While this expla nation of attitudinal voting is widely accepted, it has never been tested. As a first test of the asserted institutional foundations of attitudinal voting, the voting of United States Courts of Appeals judges in tort diversity cases is examined. In such cases, appeals court judges benefit from all of the institutional features thought to advance attitudinal voting, except complete docket control. Despite these benefits, the votes of the appeals court judges appear to be highly constrained by law and precedent.

Public (Mis)Perceptions of Supreme Court Ideology A Method for Directly Comparing Citizens and Justices

Abstract: Do people accurately perceive the Supreme Court's ideology in relation to their own positions? Which types of people are most likely to misperceive? Answering these questions is important for understanding the basis of public support for the Supreme Court. To do so requires plac- ing the public and the Supreme Court on a common ideological scale. This study represents the first attempt to do so. We ask respondents how they would have voted on a set of cases recently decided by the Court, meaning that we can generate a comparable set of ideal points for both masses and elites in a common space. We find that the Court is generally representa- tive of mass opinion and that most citizens have accurate perceptions of the Court. However, we also find that people are substantially more likely to misperceive the Court as being too liberal than too conservative.

Implications of the Supreme Court's ACA Medicaid decision.

Abstract: In the typical case, states are expected to act like independent sovereigns and reject federal funding conditions they do not like. In National Federation of Independent Business v. Sebelius (NFIB), however, the Supreme Court found that Congress unduly coerced states when it enacted the Affordable Care Act's Medicaid expansion provision. This article provides an overview to NFIB and discusses its implications. Focusing on Chief Justice Roberts' plurality opinion, the article explains that undue coercion may occur when the following four elements come together: (1) Congress enacts a new spending program; (2) Congress seeks to induce state participation in the new program by threatening to terminate all federal funding to an existing program; (3) the federal funding to the existing program is significant; and (4) the requirements of the new program are not related to the old program and, thus, could not have been anticipated by the state.

Rethinking the Principal-Agent Theory of Judging

Abstract: This Essay offers new insights into understanding the relationship between higher and lower courts and responds to the extant literature that has characterized the relationship as one involving a principal and an agent. We challenge the underpinnings of the principal-agent understanding of judicial hierarchies and identify problems with the theory’s applicability in this context. While principals ordinarily select their agents, higher court judges usually do not select lower court judges. Moreover, while lower court judges may cast votes with an eye to the possibility of elevation to a higher court, the higher court judges who review the lower court’s decisions usually do not decide whether to elevate a judge from that court to a higher position.Rather than dismiss the principal-agent theory of judging out of hand, this Essay empirically examines whether judicial actors behave as the theory suggests they would in a setting that has been overlooked by the extant literature and where application of the theory should be at its apex — the federal bankruptcy litigation system. Bankruptcy court judges who sit as trial judges are appointed for renewable time-limited terms by the court of appeals. Moreover, the court of appeals provides a second intermediate level of appellate review of bankruptcy court decisions. Initially, such decisions are appealed to a bankruptcy appellate panel (“BAP”) if the circuit has created one. The circuit’s judicial council, over which the court of appeals has dominant sway, selects BAP judges from among the circuit’s bankruptcy court judges. If the principal-agent theory of judging has traction, evidence of it should exist in this setting, which provides a stronger principal-agent relationship than the one typically found in other judicial hierarchies.Our study focuses on the voting behavior of circuit court judges and bankruptcy judges (both as trial judges and as appellate judges when sitting on the BAP) in student-loan-discharge proceedings in consumer bankruptcy cases. While our findings indicate that the ideological preferences of the circuit court judges predict their voting behavior, we do not find evidence of voting behavior by bankruptcy judges that would suggest sensitivity to the potential for circuit court monitoring and conformity to circuit court preferences. Thus, our findings cast doubt on the principal-agent theory of judging.

Did Casey Strike Out? Following and Overruling Constitutional Precedents in the Supreme Court

Abstract: This chapter challenges the supposed normative justifications of constitutional stare decisis in the Supreme Court. The author contends that a Justice who believes the Constitution must be obeyed even when it would produce what she believes to be unjust results should, for the same reasons, presumptively reject a supposed obligation to follow incorrect constitutional precedents. The author acknowledges that this presumption might in theory be overcome, if the consequences of overruling a precedent would be calamitous. But he suggests that this will rarely be the case, as the Court could delay implementation of an overruling in order to mitigate its effects or to allow the enactment of a corrective constitutional amendment. The author then specifically addresses the arguments for stare decisis advanced by the well-known plurality opinion in Planned Parenthood v. Casey, finding them poorly reasoned and unpersuasive.

The Changing Discourse of the Supreme Court

Abstract: Academics, judges and other commentators complain that, for the past few decades, the Justices on the Supreme Court have been increasingly writing opinions that are unreadable for most Americans. Those critics complain that the opinions are too long and too complex, riddled with incomprehensible multi-part tests. They also attack the style of the opinions and assert that recent opinions are more likely to be written in a technocratic, rather than persuasive, style. There seems to be little consensus among the critics regarding why the Justices are writing opinions that are increasingly unreadable. Some attribute it to the increasing complexity of issues that the Court is considering. Others suggest that the shift could be attributable to the lack of trial court experience among Justices. In response to the criticisms, a few academics have conducted empirical research to determine whether certain opinions of the Supreme Court are more readable than other opinions. The authors of those studies have also attempted to identify factors that might influence the readability of an opinion, including (1) whether the opinion is a majority or dissenting opinion; (2) the number of Justices joining the opinion; (3) the ideology of the Justice authoring the opinion; and (4) the subject matter of the underlying dispute.None of the studies, however, have examined whether the Court’s opinions have, in general, become less readable over time, as many critics assert. The attached article compares the readability of the opinions issued by the Supreme Court in the 1931, 1932, and 1933 terms to the opinions issued by the Court in the 2009, 2010, and 2011 terms. Since some commentators have suggested that the obfuscation of Supreme Court opinions is related to the increasing complexity of issues that the Court is addressing, it seemed logical to compare the readability of the Court’s opinions from the 1930's, at a time before the “staturification” of law, and the expansion of federal administrative programs during the New Deal, to the modern opinions. In addition to exploring whether the Court’s opinions have become less readable, this article also examines whether factors identified in other studies, such as the opinion type or the subject matter in dispute, correlate to the readability of the Court’s opinions, either in the 1930's or today, and whether that has changed over time. Finally, the article examines which Justices, in the 1930s and today, wrote the most readable and least readable opinions. The data reviewed confirm that the Court’s opinions today are significantly longer and less readable than the opinions from the 1930s, but it is not necessarily related to the “statutorification” of law or the expansion of federal administrative programs. It may, however, be related to a change in the culture of the Court that began in the 1940s, the proliferation of concurring and dissenting opinions. The data confirmed the findings of earlier studies that opinions addressing criminal law are generally the most readable, although they are significantly less readable today than they were in the 1930s. Opinions addressing administrative law and statutory law issues were the least readable in the 1930s and today. With respect to individual Justices, Justices Kagan and Cardozo wrote the most readable opinions for their respective time periods, while Justices Sotomayor and Stone wrote the least readable opinions.

Towards Constitutional Recognition of the Lesbian-Parented Family

Abstract: When a lesbian created family dissolves because the mothers end their relationship, the non-legal parent often does not get visitation or custody of the children that she has nurtured and loved. This article addresses visitation, custody, and child-support issues that are raised when lesbian couples plan for and create a family together, and then subsequently separate. While arguments on behalf of non-legal parents have been raised based on statutory interpretation or equitable principles, very few have argued for non-legal parent visitation or custody based on constitutional interpretation. The article proposes three new constitutionally based models for custody, visitation, and child support disputes in dissolved lesbian-parented families. The theoretical framework of these models is rooted in Professor Martha Fineman’s concept of the “sexual family.” The focus on the sexual affiliation between the man and the woman in the “sexual family” has resulted in the deflection of social attention and consideration away from children. The focus should instead be on the parent-child relationship, making it easier for the courts and society to recognize the constitutional rights of the child and the non-legal lesbian parent. Under the first model, the Parental Status Model, the Supreme Court should recognize that the non-legal parent has a constitutional right to maintain a parental relationship with her child, and that this right should transform the non-legal parent into a legal parent. The second model, the Constitutional Interest Model, is less ambitious, but more realistic in its chances of Supreme Court acceptance. This model proposes that the non-legal lesbian parent’s constitutional rights and interests (along with the liberty interests of the child) should be balanced against the legal parent’s constitutional rights and interests. Finally, the Equal Protection Model comes from the Equal Protection Clause of the Fourteenth Amendment. The article compares the situation of children of lesbian parents with the situation of children of heterosexual, unmarried parents. The Supreme Court has established that statutory discrimination against children born out of wedlock is subject to intermediate scrutiny. This same level of scrutiny should apply to discrimination toward children of lesbian-parented families, thereby providing children of lesbian-parented families important protection in the dissolution context. There are various disadvantages of relying on legislation, instead of seeking constitutional rights, to protect lesbian parental rights. Recognition of constitutional rights, along with the models for weighing those rights, should be the goal of advocates before, or at least simultaneously with, the pursuit of legislation. While the recognition of these constitutional interests is an aspirational goal, it is not impossible. The Supreme Court’s plurality opinion in Troxel v. Granville opens doors by stating that there are other forms of family besides the traditional, heterosexual married family. Advocating for these constitutional rights and interests represents a step toward legally protected rights for the legal mother, the non-legal mother, and the children in a lesbian created family.

Do Policy Messengers Matter? Majority Opinion Writers as Policy Cues in Public 'Buy In' of Supreme Court Decisions

Abstract: To what degree does the identity of the majority opinion writer affect a citizen’s level of agreement with a U.S. Supreme Court decision? Using a survey experiment, we manipulate the majority opinion authors of two Supreme Court cases between two randomly populated groups. By investigating ideological incongruence between a case’s policy output and the majority opinion author we are able to empirically test the extent to which individuals are willing to agree with a Court opinion that is authored by an ideologically similar justice even though the decision cuts against their self-identified ideological policy preferences. Our study provides insight on the extent to which policy “buy in” by citizens is affected by policy cues represented by the policy messenger of a political institution. We find that, although individuals generally give deference to the Supreme Court’s decisions, a messenger effect indeed augments the specific level of support a given case receives.

The Influence of Justices on U.S. Supreme Court Precedent

Abstract: Judicial impact studies frequently consider the influence of Supreme Court decisions on future decision-making behavior. However, a critical void in the literature is analysis of the influence of individual Supreme Court justices on future decision making behavior. We investigate whether there are inherent differences between the opinions of individual justices and whether these opinions differentially impact future Supreme Court decisions. That is, we examine whether certain justices receive higher levels of citations and positive treatments in future Supreme Court decisions. To test our predictions we analyze majority opinions from the longest natural Court era of the U.S. Supreme Court between 1994 and 2005. The empirical results support our account and demonstrate that differences between the opinions of individual justices disparately impact the extent to which the Court cites and follows the opinions authored by each justice in its future decisions. Our analysis suggest that in addition to the voting coalition that decides the case outcome, which of the justices ultimately author the majority opinion has a profound impact on future citation and adherence to the Court’s precedent.

Suatu Tinjauan Terhadap Penerapan Dissenting Opinion Dalam Penyelesaian Perkara Kepailitan

Abstract: Abstrak : Inspection system at the level of the Court, including the Commercial Court to condition the three judges who examine a bankruptcy case Changes in the condition of Indonesian justice especially by issuing Law No 35 of 1999 on the Amendment of the Act No 14 Year 1970 on Basic Provisions of the Judicial Authority contributes dissent judges who examine cases including the case of a bankruptcy in the case verdict Differences of opinion in deciding a case is called by the term "dissenting opinion" In this study the proposed formulation of the problem arises why the dissenting opinion in the case of bankruptcy and whether the conditions required in a bankruptcy court ruling that there is a dissenting opinion Having done the research and data collection, it is known that the onset of a dissenting opinion in the case of bankruptcy in general is due to the independence of judges in deciding cases is limited by statutory provisions While in particular the emergence of dissenting opinion in the case of bankruptcy is due to different backgrounds of judges who examined the bankruptcy case that is the career of judges and judges ad-hocSyarat-requisites required in a bankruptcy court ruling that there was a dissenting opinion dissenting opinion ruling the made in the form of an attachment that contains a statement of the judge expressly Member / chairman who made the dissenting opinion, that the decision is legally binding The attachment is an integral part of the decision text Justices dissenting opinion must still make the decision to sign and remain bound to the sound of the ruling dictum In this study also suggested Chief executive decision makers especially in the law-making about arrangements regarding the emergence of dissenting opinions, especially in the case of bankruptcy should be a perfect set of conditions that must be met by the trial judge if there is a dissenting opinion Keywords: Dissenting Opinion, case, Bankruptcy