Showing papers on "Plurality opinion published in 2014"

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.

Request for an Examination of the Situation in Accordance with Paragraph 63 of the Court’s Judgment of 20 December 1974 in the Nuclear Tests (New Zealand v. France)

Abstract: This chapter describes the evolution of the history of case concerning request for an examination of the situation in accordance with paragraph 63 of the court's judgment of 20 December 1974 in the nuclear tests 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. Keywords: court's judgment; International Court of Justice (ICJ); nuclear tests

Textualism and Transnational Securities Law: A Reappraisal of Justice Scalia's Analysis in Morrison v. National Australia Bank

Abstract: In 2010 the Supreme Court issued its opinion in Morrison v. National Australia Bank, which almost certainly effectively wiped out forty years of case law that addressed transnational issues under the U.S. securities laws in a powerful opinion by Justice Scalia, establishing a “transactional” test requiring a securities purchase on a U.S. exchange or otherwise within U.S. territory to recover. More recently, in late 2012, Justice Scalia, along with a co-author, published Reading Law: The Interpretation of Legal Texts. Reading Law purports to be an analysis of statutory interpretation, an update of older treatises on statutory interpretation as well as a comprehensive summary of the various canons and other rules of statutory interpretation. Interestingly, with respect to Morrison, Justice Scalia and his co-author have a separate section addressed specifically to the presumption against the extraterritorial application of statutes, the principal concern of Morrison. In addition, Justice Scalia states his views on what he (and others) call “purposivism” which is also critical to the reasoning of Morrison. Other sections of Reading Law also shed new light on Morrison. In short, Reading Law gives greater insight into the Morrison opinion, and its history and critique of the “conduct” and “effects” test that had held sway for over 40 years in transnational litigation involving the securities laws. In particular, the analysis of the presumption against extraterritoriality in Reading Law can be viewed as an attempt to bolster one of the key, but weaker, sections of the Morrison opinion. Thus, a reappraisal of the textual analysis of Morrison in light of Justice Scalia’s later work is enlightening. Further, his recent attack in Reading Law on “purposivism” and his linking it straightforwardly to the presumption against extraterritoriality is significant. Whether Justice Scalia’s use of the concept of statutory “focus” is a species of his own purposivist views is considered. Similarly, his attack on the technique of interpretation (a species of purposivism) that asks what Congress “would have meant” informs his strident attack on Judge Henry Friendly’s jurisprudence in the extraterritorial area. Unspoken is the unarticulated rejection of the possibility of “concurrent” jurisdiction or other alternative weighing of multi-jurisdictional interests in the contemporary international system although Justice Scalia had previously endorsed that, at least partially, in his plurality opinion in Hartford Fire. Finally, this article attempts to give a close reading to the opinion analyzing and critiquing its use of prior case law, including the “in connection with” body of case law under Section 10(b) of the Securities Exchange Act of 1934 (hereinafter “the ’34 Act”), which is a key intellectual pivot point in Morrison.

Not-So-Harmless Error: A Higher Standard for Mitigation Errors on Capital Habeas Review

Abstract: INTRODUCTIONThis Comment addresses which harmless error standard should be used when analyzing mitigation errors on habeas corpus review. Habeas corpus review occurs when a defendant exhausts his or her state appeals and subsequently seeks the ancient writ of habeas corpus1 as codified in 28 U.S.C. § 2254.2This Comment examines cases where the defendant claims that the state trial court violated his or her constitutional rights during sentencing by committing mitigation error. During the sentencing phase of a capital punishment trial the defendant may present mitigation evidence-any relevant information regarding the defendant's person and history-that may cause a juror to deliver a sentence less than death.3 Mitigation errors often take one of two forms: Lockett error or Penry error. Lockett error occurs when the court denies the defendant the chance to present any relevant evidence that may cause a jury to deliver a sentence less than death.4 Mitigation may include evidence of a difficult family history, mental disturbance, healthy adjustment to life in prison, emotional disturbance, or false imprisonment.5 In fact, the United States Supreme Court has said that virtually no limits are placed upon what evidence a capital defendant may offer to mitigate his or her sentence.6 Penry error occurs when the jury is precluded from giving full meaning and effect to the defendant's evidence during deliberations and in making their sentence, usually through poorly written jury instructions.7 The wording of these jury questions may preclude full consideration of mitigation evidence, resulting in Penry error.8 Throughout this Comment, the term "mitigation error" will be used in reference to errors that preclude core elements of mitigation evidence,9 namely Lockett error and Penry error.10In order to logically and effectively show why the United States Supreme Court should adopt the "harmless beyond a reasonable doubt" standard articulated in Chapman v. California,11 this Comment proceeds in six parts. Part I discusses the general background of capital punishment cases. Part II looks at the foundational capital sentencing mitigation cases. Part III examines three key ingredients in capital habeas harmless error review. Part IV surveys the circuit split. Part V argues that the Court should reject the Brecht standard and adopt the Chapman standard for habeas review of mitigation errors. Finally, part VI considers the impact of mitigation error upon jurors.I. HOW DIFFERENT IS DEATH? AN OVERVIEW OF A CAPITAL PUNISHMENT CASEThe 1970s was a tumultuous era for this nation's capital punishment jurisprudence: 1972 saw a de facto moratorium on the death penalty initiated by the Court in Furman v. Georgia,12 followed by its resuscitation a short four years later in Gregg v. Georgia.13 Only two years after Gregg, the Court decided another landmark case that protected a capital defendant's right to present mitigation evidence: Lockett v. Ohio.14 In Lockett the Court offered a surprising-and prophetic-sliver of self-deprecation: "The signals from this Court have not . . . always been easy to decipher. The States now deserve the clearest guidance that the Court can provide; we have an obligation to reconcile previously differing views in order to provide that guidance."15 Ironically, Chief Justice Burger wrote these words in a plurality opinion that was followed by four separate opinions.16 Unfortunately, the Court's capital punishment jurisprudence remains foggy and complex, providing fodder for circuit splits and scholarship.When the United States Supreme Court discussed the idea that death is different in Furman v. Georgia,17 it began a conversation in United States jurisprudence that philosophers had long been debating.18 The moral, intellectual, and legal battle continues in the nation's discourse- a quick Internet news search reveals hundreds of articles discussing various aspects of the complex topic.19 Questions surrounding the cost and efficacy of capital punishment abound. …

The Structural Wall of Separation and the Erroneous Claim of Anti-Catholic Discrimination

Abstract: This essay focuses on the American Wall of Separation and consists of two parts, each premised on a recognition that the separation of church and state entails fundamental structural principles that organize a liberal democratic regime. Section I discusses the U.S. Constitution of 1789 and the First Amendment and identifies five key structural elements of its Wall of Separation: democratic legitimacy; non-delegation: limiting power, liberating governance; polity and its anti-balkanization principle; countervailing powers in civil society; and rational deliberation. The next section begins with Justice Thomas' plurality opinion in Mitchell v. Helms, facilitating direct aid to religious schools by proposing a wall-lowering equal protection-inflected interpretation of the Establishment Clause, while linking some elements of a structural understanding of that clause, as it limits aid to religious schools, to anti-Catholic animus. This essay rejects this historical claim that the politics and doctrine implementing the American Wall of Separation originate primarily in anti-Catholic animus (a claim, for example, made by Professor Hamburger in regard to the nineteenth century struggles over school funding and Justice Black’s opinion in Everson). This claim mistakenly characterizes much of the evidence as irrational prejudice against individuals and their religion, rather than as a popular constitutional commitment to liberal democracy. That commitment involved opposition to the goals of the ultramontane Church, which linked its establishment and authority as the one true church to its anti-liberal and anti-democratic politics. Section I complements this historical account because it provides the basis for an answer to the Church's claim of being unfairly and discriminatorily treated, which it made in response to its disestablishment in Europe (including the transfer of primary responsibility for education to the state) and the denial of aid to its school system in the U.S. The answer Section I affords is: what may be experienced as hostile treatment is the impact of a liberal constitutional structure of separation, which affects different religions differently. In contrast to this emphasis on the ultramontane Church's anti-liberal and anti-democratic politics, a coda traces the Catholic Church's acceptance in Vatican II of liberal democracy and a separation of church and state that it entails. This identifies the historical context in which the Supreme Court eventually authorized aid to religious schools; by the time of Helms, some justices could believe that many religious schools can, consistent with their free exercise of religion, offer secular value not only in providing a civic but also a liberal democratic education. An Appendix criticizes Justice Thomas' federal-jurisdictional view of the Establishment Clause, which would empty the Establishment Clause of the substantive meaning that can be derived from a reading of the constitutional text and structure, its history in which James Madison played a central role, and the “court of history” including the nation’s rejection of Alien and Sedition Act prosecutions in the election of 1800.

Grappling with Neutrality and Liberty under the Religion Clauses

Abstract: The US Supreme Court’s decisions relating to law and religion have often been criticized. The source of the criticism frequently depends on the issues involved and the decision in a given case. There is no doubt, however, that some of these cases have occupied a central role in the evolving culture wars played out every day in the United States.

The First Amendment and the Parsonage Allowance

Abstract: In this article, Professor Zelinsky criticizes the recent decision of the U.S. District Court for the Western District of Wisconsin in Freedom from Religion Foundation, Inc. v. Lew. In that decision, the District Court held § 107(2) of the Internal Revenue Code (Code) unconstitutional under the First Amendment. Code § 107(2) excludes from gross income cash housing allowances furnished to "minister[s] of the gospel."For three, interrelated reasons, Professor Zelinsky finds the District Court’s opinion in FFRF is unpersuasive. First, § 107 has secular purpose and secular effect. Section 107 manages the entanglement which is inevitable when the modern government decides whether or not to tax the modern church. Moreover, § 107 accommodates the autonomy of religious institutions and actors by declining to tax clerical housing and housing allowances. Section 107 should be understood, not as subsidizing the church, but as separating the church from the state. The economic benefit of tax exemption is a by-product of that separation.Second, the District Court’s FFRF opinion places too much weight on the Supreme Court’s plurality opinion in Texas Monthly, Inc. v. Bullock while giving short shrift to the Supreme Court’s earlier opinion in Walz v. Tax Commission. A more careful reading of Texas Monthly and Walz indicates that, consistent with the First Amendment, Congress can exempt from taxation churches and religious actors to avoid church-state entanglement and to accommodate the autonomy of religious institutions and actors. That is what § 107 does. Texas Monthly is the Supreme Court’s most recent treatment of the First Amendment status of tax exemptions for religious institutions, but Walz is the more convincing treatment of that status.Third, the District Court accepts the premise of the Texas Monthly plurality that tax exemptions are always subsidies. Often tax exemptions are subsidies, comparable to direct expenditures. However, in many settings, they are not. In constitutional terms, § 107 is more convincingly perceived, not as a subsidy, but, per Walz, as managing the inevitable entanglement caused by taxation and as accommodating the autonomy of religious institutions and actors. In a world of imperfect choices, § 107 separates rather than subsidizes. The economic benefit of § 107 is a side-effect of that separation.