Showing papers on "Supreme Court Decisions published in 2001"

Schools More Separate: Consequences of a Decade of Resegregation

Abstract: Author(s): Orfield, Gary | Abstract: Almost a half century after the US Supreme Court concluded that Southern school segregation was unconstitutional and "inherently unequal," new statistics from the 1998-99 school year show that segregation continued to intensify throughout the 1990s, a period in which there were three major Supreme Court decisions authorizing a return to segregated neighborhood schools and limiting the reach and duration of desegregation orders The data from the 2000 Census and from national school statistics show that the US is an overwhelmingly metropolitan society, dominated by its suburbs The high level of suburban segregation reported for African American and Latino students in this report suggests that a major set of challenges to the future of the minority middle class and to the integration of suburbia need to be addressed

The Oxford Guide to United States Supreme Court Decisions

Abstract: This compact reference book contains the case articles from the prize-winning Oxford Companion to the United States Supreme Court. This new edition of the Guide will contain more than 450 entries on major Supreme Court cases, including 53 new entries on the latest landmark rulings. Among the new entries are United States v. American Library Association (censorship of internet content), United States v. Armstrong (selective prosecution), Atkins v. Virginia (executing the mentally retarded violates the Eighth Amendment's ban on cruel and unusual punishments), Boy Scouts v. Dale (freedom of association), Bush v. Gore (equal protection and recount), Nixon v. United States (political questions inappropriate for judicial resolution), , Gonzales v. Carhart and Gonzales v. Planned Parenthood Federation of America (abortion), Gonzales v. Raich, (Congress can proscribe all use of marijuana under commerce power), Morse v. Frederick (student's free speech), and Rumsfeld v. Forum for Academic and Institutional Rights (First Amendment and Solomon Amendment). Four decisions-Hamdi v. Bush, Hamdan v. Rumsfeld, Rasu v. Bush, and Rumsfeld v. Padila-will be considered in a single essay entitled "Enemy Combatant Cases." In addition to these new cases, both front and backmatter materials have been revised, including the Introduction, the Directory of Contributors, Case Index, Topical Index, and Appendix Two has been revised to note changes in the Supreme Court, including the death of Chief Justice Rehnquist and the retirement of Justice O'Connor, and their replacement by Chief Justice Roberts and Justice Alito.

Judicial Behavior and Public Opinion: Popular Expectations Regarding the Factors That Influence Supreme Court Decisions

Abstract: This article examines the mass public's perceptions of the factors that actually influence Supreme Court decisions as well those that ought to influence such decisions. We expect significant discrepancies between what the public believes ought to be the case and what it perceives to actually be the case with regard to Supreme Court decision making and that these discrepancies have a significant negative impact on the public's assessment of the Court. More specifically, we hypothesize that the public believes that political factors have more influence on the Court than “ought” to be the case and that the public perceives traditional legal factors to be less influential than they should be. We find that the expected discrepancies do exist and significantly detract from popular regard for the Court.

Strategic Institutional Effects on Supreme Court Decisionmaking

Abstract: INTRODUCTION The academic study of judicial decisionmaking has grown in recent years and has consequently become more elaborate. Careful consideration of judicial decisionmaking would seem fundamental to any legal analysis, which depends upon judges to interpret, apply, and enforce the law. While political scientists have long investigated such decisionmaking, legal research has too frequently retreated to a comfortable but unsupported assumption that judges have simply followed the law when deciding cases. Reliance on this assumption, which converts judges into either saints or automatons, cannot be sustained. The model of judicial decisionmaking requires a more refined investigation. This Article presents an analysis of the institutional context of judicial decisionmaking and of how that context affects decisions. The first Part discusses the conventional models of decisionmaking. First, we review the "naive legal model," the traditional formalist view of judging. Second, we consider the "naive political model" propounded by some political scientists, which maintains that judges do nothing more than decide cases according to their ideological preferences. Third, we consider a more elaborate model, in which judges attend to the preferences of other institutions, such as Congress and the Presidency, strategically altering their decisions in light of those external preferences. The second Part analyzes how other institutions might affect Supreme Court decisionmaking. Legal research has focused primarily on the legislature's ability to overturn the statutory interpretation decisions of the courts. We suggest that this, in fact, is probably not a significant factor in judicial decisionmaking. However, the courts are more likely to be responsive to other sources of influence, ranging from threats of impeachment to controls on jurisdiction to budgetary pressures to reluctance to implement the spirit or the letter of the courts' opinions. Cumulatively, these influences are potentially significant and may substantially impact judicial decisionmaking. In the third Part, we present an empirical test that focuses on the institutional component of the Supreme Court's decisionmaking. We present an analysis of thousands of Supreme Court votes and try to identify a political and a legal basis for the decisionmaking. We also identify the presence of judicial deference to other institutions and the extent to which this deference appears to be strategic. We conclude that there is clear evidence of strategic judicial deference to other institutions but that such a response does not overwhelm the decisionmaking process, which considers a blend of ideological and legal factors as well. No single simple model accurately explains the process of Supreme Court decisions. I. MODELS OF JUDICIAL DECISIONMAKING The judicial decisionmaking process has not been much explored. It cannot be so explored unless one confronts the issue of what the objectives of judges are. The "judicial maximand" differs from that of ordinary market actors because judges cannot readily enhance their income via the quantity or quality of the job they do. Sundry factors doubtless affect judges, including the desire not to be overworked.1 When judges do make decisions, though, we need a model of why they decide as they do. This Part of our Article explores three distinct models of judicial decisionmaking. First we consider the naive legal model, which might also be called "neutralist" decisionmaking. This model has judges faithfully applying legal principles, such as precedent, in order to reach a decision. Legal scholars often assume that judges are using this approach, but the assumption is seldom supported with evidence. A second model is the naive political model, which is sometimes called the attitudinal model. This model is commonly employed in political science and holds that judges generally make decisions that accord with their ideological or political preferences. …

Does the Statutory Overtime Premium Discourage Long Workweeks

Abstract: Using a pooled data set consisting of 20 annual observations on each of eleven major industry groups, I estimate the effects of overtime pay regulation on weekly work schedules. After controlling for workweek trends within industries, the sharp expansions in overtime pay coverage resulting from legislative amendments and Supreme Court decisions produced no discernible impact on overtime hours. This finding is consistent with a model of labor market equilibrium in which straight-time hourly wages adjust to neutralize the statutory overtime premium.

How Great Were the "Great" Marshall Court Decisions?

Abstract: This article commemorates the two hundredth anniversary of the ascension of John Marshall to the Chief Justiceship of the United States Supreme Court by taking a revisionist look at some of the landmark decisions of the Court that he presided over for thirty-four years. Political scientists and legal scholars have written a great deal in recent years questioning conventional assumptions about the importance of Supreme Court decisions such as Brown v. Board of Education, Roe v. Wade, and Engel v. Vitale. Yet almost nothing has been written about the consequences of the "great" Marshall Court decisions. Scholars continue, almost universally, to assume that the old Marshall Court chestnuts - decisions such as Marbury v. Madison, McCulloch v. Maryland, and Dartmouth College v. Woodward - were of enormous significance to the history of the early republic. A closer look at these rulings in their historical context, however, suggests that such assumptions are in need of serious revision. This Article reconsiders the consequences of three categories of Marshall Court decisions. Part I looks at the most famous Marshall opinion of all, Marbury v. Madison, and questions the importance of its proclamation of the judicial review power. Part II reevaluates the importance of McCulloch v. Maryland and Gibbons v. Ogden - decisions that approved extremely broad conceptions of national legislative power. Part III turns to some of the famous Contract Clause decisions of the Marshall Court - specifically, Dartmouth College v. Woodward, Sturges v. Crowninshield, and Green v. Biddle - and challenges the widespread assumption that they were instrumental to American economic development during the first half of the nineteenth century. Finally, Part IV considers one way in which the Marshall Court did make a vital contribution to American history: It helped establish the Supreme Court as a significant, if not quite co-equal, branch of the national government. This final Part assesses the extent to which Marshall and his colleagues were responsible for the Court's growing institutional stature and the extent to which this development was fortuitous.

The White Primary Rulings: A Case Study in the Consequences of Supreme Court Decisionmaking

Abstract: Political scientists and legal scholars have written a good deal in recent years on the consequences of Supreme Court decisions. Much of this scholarship has been skeptical of the capacity of courts to produce significant social change. Most notably, Professor Gerald Rosenberg has declared the notion that courts can reform society a "hollow hope." While much of my own scholarship has reached conclusions broadly similar to those of Professor Rosenberg, it is a mistake to conclude that Supreme Court decisions in the civil rights context never made much difference. The Court's most important white primary decision, Smith v. Allwright, inaugurated a political revolution in the urban South. This Article considers both the circumstances that enabled Smith to accomplish what it did and the limitations of that accomplishment. My goal is to shed light on the conditions that enable and disable Supreme Court decisions from effectuating significant social change. Part I summarizes the Supreme Court's three pre-Smith white primary decisions. Part II provides legal and political background to Smith v. Allwright and also describes the post-Smith history of the white primary. Part III, the core of the Article, describes the impact of Smith on southern black voter registration. Relying principally on archival material mined from the NAACP Papers, I describe how southern blacks and whites responded to Smith and identify the political and social conditions that enabled Smith to launch a revolution in black political participation in the urban South. This Part also examines the factors that largely nullified the impact of Smith in the rural South. The Conclusion addresses the question of why the Supreme Court's intervention in the white primary context was so much more immediately efficacious than were either its contemporaneous decisions involving criminal procedure issues affecting southern blacks or its slightly later ruling in Brown v. Board of Education.

Special Education Tuition Reimbursement Claims: An Empirical Analysis

Abstract: The ability of parents of children with disabilities to seek reimbursement for private school tuition is one of the most controversial aspects of special education law. Using a comprehensive sample of published court and hearing officer decisions regarding tuition reimbursement, this study, expanding on previous research, quantified the frequency and outcomes of tuition reimbursement disputes. It revealed that the annual average number of such claims has increased over time. It also demonstrated that there was a significant difference in case outcomes between the administrative and judicial forums, but there was no significant difference in case outcomes among the successive time periods marked by two U.S. Supreme Court decisions on tuition reimbursement (i.e., Burlington School Committee v. Department of Educ. (1985), Florence County School District Four v. Carter (1993)) and, most recently, the Individuals with Disabilities Education Act Amendments of 1997.

Reconstruction and Black Suffrage: Losing the Vote in Reese and Cruikshank

Abstract: On Easter Sunday in 1873, more than one hundred black men were gunned down in Grant Parish, Louisiana, for daring to assert their right to vote. Several months earlier, in Lexington, Kentucky, another black man was denied the right to vote for simply failing to pay a poll tax. Both events typified the intense opposition to the federal guarantee of black voting rights. Both events led to landmark Supreme Court decisions. And, as Robert Goldman shows, both events have much to tell us about an America that was still deeply divided over the status of blacks during the Reconstruction era. Goldman deftly highlights the cases of United States v. Reese and United States v. Cruikshank within the context of an ongoing power struggle between state and federal authorities and the realities of being black in postwar America. Focusing especially on the so-called Reconstruction Amendments and Enforcement Acts, he argues that the decisions in Reese and Cruikshank signaled an enormous gap between guaranteed and enforced rights. The Court's decisions denied the very existence of any such guarantee and, further, conferred upon the states the right to determine who may vote and under what circumstances. In both decisions, lower court convictions were overturned through suprisingly narrow rulings, despite the larger constitutional issues involved. In Reese the Court justified its decision by voiding only two sections of the Enforcement Acts, while in Cruikshank it merely voided the original indictments as being "insufficient in law" by failing to allege that the Grant Parish murders had been explicitly motivated by racial prejudice. Such legalistic reasoning marked the grim beginning of a nearly century-long struggle to reclaim what the Fifteenth Amendment had supposedly guaranteed. As Goldman shows, the Court's decisions undermined the fledgling efforts of the newly formed justice department and made it increasingly difficult to control the racial violence, intimidation, poll taxes, and other less visible means used by white southern Democrats to "redeem" their political power. The result was a disenfranchised black society in a hostile and still segregated South. Only with the emergence of a nationwide civil rights movement and the Voting Rights Act of 1965 did things begin to change. Readable and insightful, Goldman's study offers students, scholars, and concerned citizens a strong reminder of what happens when courts refuse to enforce constitutional and legislated law - and what might happen again if we aren't vigilant in protecting the rights of all Americans.

Antitrust and the Marketplace of Ideas

Abstract: Article provides an overview of the marketplace of ideas, its relevance to media mergers, and the current approach under the federal antitrust agencies' Horizontal Merger Guidelines. The article examines the legal support for the proposition that antitrust analysis of media mergers should be expanded to include the merger's impact on editorial competition. After finding legal support in the legislative history and Supreme Court decisions, the article explores the pros and cons of evaluating a media merger's impact on the marketplace of ideas, and asks whether this should be left to the FCC. The article concludes with several modest proposals as to how such editorial competition and the marketplace of ideas might be incorporated into antitrust analysis.

Church-State Constitutional Issues: Making Sense of the Establishment Clause@@@That Godless Court?: Supreme Court Decisions on Church-State Relationships

Abstract: Preface The Supreme Court and the Establishment Clause The Quest for the Historical Establishment Clause Church and State under the Establishment Clause: The First One Hundred and Fifty Years Establishing a New Approach Bibliography Index

"Zero Tolerance" for Free Speech.

Abstract: I. Introduction In the aftermath of the violence that has recently taken place in America's schools has come a resurgence in a "zero tolerance" attitude by school administrators. At first, "zero tolerance" policies were initiated as a means to combat the growing problems of drugs in schools. Later, weapons became the target of these policies in order to disarm the increasingly violent environment in the classroom. Now there seems to be a trend in schools that looks predominantly more like "zero tolerance" for speech, more specifically an intolerance for any kind of speech that could be deemed threatening. In theory, a "zero tolerance" policy for speech deemed to be threatening could help rid schools of potentially violent students. Unfortunately, the downside is that these same policies could stifle a young voice that may be crying for help, or trying to show society its inadequacies, or merely expressing anger through creative expressions. Thus, a zero tolerance policy could be infringing on a student's freedom of expression. This Chalk Talk will briefly explain the development of First Amendment law as applied to primary and secondary schools and the "true threat" doctrine. Then, it will provide cases that illustrate the trend in schools towards "zero tolerance" for threatening speech. Finally, it will provide a "First Amendment friendly" framework for determining when schools should discipline their students for threatening speech, as well as policy considerations in making this determination. II. "True Threats" and the First Amendment The First Amendment of the United States Constitution states "Congress shall make no law ... abridging the freedom of speech." Restrictions based solely on the content of speech are considered invalid under the First Amendment. However, the Supreme Court has recognized certain exceptions to this rule and has held that speech that falls under one of these exceptions may be regulated by the state.' One category of speech excepted is that of threats, which are generally not protected by the First Amendment. The "true threat" doctrine has developed through various cases from the federal circuit courts and the Supreme Court.' Two cases in particular provide some guidance for determining when threatening language constitutes a "true threat." In Watts v. United States` the Supreme Court held that Watts' statement "If they ever make me carry a rifle the first man I want to get in my sights is L.B.11" was political hyperbole and therefore did not constitute a "true threat."5 "Watts suggests that 'a communication which an objective, rational observer would tend to interpret, in its factual context, as a credible threat, is a "true threat,"' which may be punished by the government."' The "true threat" doctrine has also been applied in the context of student expression in Lovell v. Poway Unified School District.7 Sarah Lovell had allegedly threatened to shoot her school counselor if the counselor did not grant Lovell's schedule change. The standard applied was "whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault."8 However, the alleged threatening statement should be taken in context in order to determine whether it is in fact a "true threat." In Lovell, the court determined that the increase in school violence was a significant part of the context in which the allegedly threatening statement should be interpreted.9 Thus, in this context, it was reasonable that the statement could be considered a "true threat" and, therefore, it was not protected under the First Amendment. This determination by the court allowed it to ignore decisions by the Supreme Court regarding the protection afforded to a student's freedom of expression. III. Supreme Court Decisions on Student First Amendment Rights The Supreme Court has developed a framework for evaluating to what extent student speech should be protected. …

"Partial-birth abortion" and the Supreme Court.

Abstract: Abortion has long been, and remains, the most politicized medical procedure in the United States. It has been the subject of more state and federal legislation than all other medical procedures combined. The U.S. Supreme Court, which almost never hears cases about medical procedures, has regularly heard cases over the past 25 years concerning the constitutionality of various state laws designed to limit abortion. Thus, it was only a matter of time before the Court would hear a case on the constitutionality of laws restricting so-called partial-birth abortion.1 When the Court heard a challenge to Nebraska's law, statutes relating to . . .

Supreme Court decisions and women's rights : milestones to equality

Abstract: Since the publication of the first edition of "Supreme Court Decisions and Women's Rights in 2000", there have been significant developments both in the make up of the Court and the rulings it has issued. The past decade saw the departure of highly revered Justice Sandra Day O'Connor and the historic appointment of the first Latina woman, Justice Sonia Sotomayor. Over that same time period, there have been several important decisions affecting gender law, including: Gonzales v. Carhart (2007), which upheld the federal ban on partial-birth abortion signed by President Bush in 2003. Ledbetter v. Goodyear Rubber and Tire Co. (2007) found that too much time had lapsed for former-Goodyear employee Lilly Ledbetter to seek back wages for the years she received discriminatory lower pay. AT and T Corp. v. Hulteen (2009) held that companies that discriminated against pregnant women employees prior to passage of the Pregnancy Discrimination Act of 1978, could carry that discrimination over into calculating pension pay. Featuring more than 100 cases and updated biographies, "Supreme Court Decisions and Women's Rights" provides a complete study of all the important issues and movements involving the Supreme Court and the role it plays in shaping women's rights.

Temporary Appointments and Judicial Independence: Theoretical Thoughts and Empirical Findings from the Supreme Court of Israel

Abstract: A debate has emerged in recent years within the law and economics movement and beyond with regard to the positive analysis of the independence of the judiciary. The traditional approach to the separation of powers and the independence of the judiciary constructs a positive analysis on the basis of a normative analysis. According to this approach independent judiciary is viewed as a demonopolizing factor, as a mechanism for diminishing agency costs and as a method of increasing the costs of rent-seeking activity and decreasing the profits of interest groups. The revisionist approach views the separation of powers and the independence of the judiciary as mechanisms, which help politicians to maximize their utility. One of the features of judicial independence in Israel, of which Israeli scholars are proud of, is the procedure for appointment and promotion of judges. However, temporary appointments can bypass this procedure. A practice, according to which one to two judges on a temporary appointment serve at the Supreme Court has characterized the Court's work almost from its establishment in 1948. Most of these appointments function as a testing period. It is difficult to say that during this "probationary" period the temporary judges enjoy real structural independence. The Paper, using statistical data from about 50,000 Israeli Supreme Court decisions, examines whether the patterns of decision-making of the temporary judges is significantly different from those of the tenured judges. Some of the tested variables are the rate of decisions against the government, the rate of dissenting opinions and the rate of reversal of lower courts decision and more. I also examine which decision-making patterns tend to increase the chances for a full appointment. The findings are strikingly similar to findings from an earlier research of mine on The English Court of Appeal judges and their promotion to the House of Lords chances vis-a-vis judicial decision-making patterns in public law cases. Both studies tend to support the revisionist approach towards judicial independence and can contribute to the positive analysis of the independence of the judiciary.

In the Stationhouse after Dickerson

Abstract: Miranda v Arizona1 established the high water mark of the protections afforded an accused during a custodial interrogation During the decades that followed, the United States Supreme Court allowed Miranda's foundation to erode, inviting a direct challenge to the landmark ruling In Dickerson v United States,2 the Court turned back such a challenge and placed Miranda upon a more secure, constitutional footing This Article explores the impact of Dickerson in the place where Miranda was meant to matter most: the stationhouse As I have described elsewhere, Supreme Court decisions have influenced a number of California law enforcement agencies to instruct officers that they may continue to interrogate suspects in custody who have asserted their Fifth Amendment right to remain silent or right to counsel3 Harris v New York4 and Oregon v Hass5 permit some statements taken in violation of Miranda to be used for impeachment purposes at trial Michigan v Tucker6 and Oregon v Elstad7 permit some

The Supreme Court in conference (1940-1985) : the private discussions behind nearly 300 Supreme Court decisions

Abstract: In public, Supreme Court Justices are not known for their candor while ruling upon a case. In private, however, a few days after hearing oral arguments, before deciding upon the case, the Justices openly discuss their views in what is known as the "Conference." Here, for the first time, are the transcriptions of those conference notes-taken by the Justices themselves-to more than two hundred landmark cases from 1945 to 1985, including such landmark decisions on civil rights, abortion, privacy, and Presidential power. The Supreme Court in Conference is the first book to presents the notes to the conference meetings-so private that only the Justices are present-with annotations and introductions by Del Dickson. Two lengthy essays on the conference notes put them into perspective and draw out the some of the patterns, tendencies, and personalities. Volume I covers cases involving the separation of powers and federalism, including such areas as Congressional authority, the Presidenvy, and foreign affairs. Volume II covers cases in civil rights and liberties: free speech, free press, religion, equal protection, privacy, reproductive rights, affirmative action, and many more. The full transcriptions are accompoanied with full notes, and citations. There is an extensive bibliography and index. he Supreme Court in Conference will become an essential reference work for scholars, lawyers, law students and the interested lay person.

An overview of US Supreme Court decisions in sexual harassment cases

Abstract: Provides a background to the development of sexual harassment legislation through the Supreme Court. Examines the characteristics of sexual harassment laws and how the Supreme Court has implemented and expanded these rules in specific cases. Concludes that it is imperative that employers understand their liability for sexual misconduct in the workplace and use the presented cases to formulate and enforce an effective anti‐harassment policy.

Civil commitment: Due process, procedural fairness and the quality of decision‐making

Abstract: The Supreme Court decisions on civil commitment legislation in Western Australia in EO v Mental Health Review Board [2000] WASC 203 and in Victoria in RW v Mental Health Review Board [2000] VSC 404 enunciate an insistence that fairness and due process be adhered to in determining whether mental health patients should be involuntarily detained — in particular, that patients ordinarily should have access to their clinical files before review board decisions, and that involuntary detention within the community concludes on the date that a community treatment order expires, unless it has previously been revoked, discharged or extended. To this extent, they consolidate a tradition of construing the provisions of mental health legislation strictly and in favour of patients' rights to freedom of decision‐making. However, the decisions also highlight a range of contemporary difficulties in relation to psychiatrists' initial decision‐making about civil commitment The courts' views that psychiatrists should be prop...

John Marshall's Aboriginal Rights Theory and Its Treatment in Canadian Jurisprudence

Abstract: This article examines the development of U.S. Chief Justice John Marshall's Aboriginal rights theory in Canadian constitutional law. Marshall constructed his theory in the late nineteenth-century Supreme Court decisions of Johnson v. McIntosh, Cherokee Nation v. Georgia, and Worcester v. Georgia. Analyzed in their original context, these decisions reveal Marshall's central focus on the distribution of legislative power between the American state and federal governments Throughout most the twentieth century, the Supreme Court of Canada accepted Marshall's concept of federal legislative supremacy over Canada's First Nations. With its 1984 decision in Guerin v. R, however, the Court began gradually to deconstruct the Marshall framework. In a string of subsequent cases culminating in Campbell v. British Columbia (AG), Canada's Supreme Court signaled that it was prepared to reject the core of the Marshall Aboriginal rights framework by allowing First Nations to share in the constitutional distribution of legislative power.

Glucksberg, the putative right to adequate pain relief, and death with dignity.

Abstract: This Article focuses on the legality of the aggressive use of analgesics and deep sedation for terminally ill patients. The author analyzes the 1997 Supreme Court decisions on physician-assisted suicide, examines the tension between controversial palliative care practices and the traditional legal framework, and explores the contours of an emerging constitutional right to avoid suffering at the end of life. In addition, the author argues that deep sedation together with withholding of artificial nutrition and hydration should be an option for dying patients suffering from severe physical or emotional pain.

Judicial Power and the Charter: Three Myths and a Political Analysis

Abstract: Does the Supreme Court exercise “too much” judicial power under the Charter? Consider that over 22 years (1960-1982), the federal Bill of Rights generated 34 Supreme Court decisions, five successful claims, and only one partial nullification of a federal statute. 1 During the same period, the number of constitutional decisions issued by the Court totalled 120, or less than six per year. 2 By contrast, over its first 17 years of operation (1982-1999) the Charter generated 390 Supreme Court decisions, 130 successful claims, and 63 nullifications of federal or provincial statutes. 3 As these comparisons affirm, and as everyone acknowledges, the scope of judicial power has increased under the Charter. But has it increased “too much?” In September, 2000 the Chief Justice of Canada responded to those who might answer this question affirmatively by delivering a speech entitled “Judicial Power and Democracy.” 4 Noting the “global expansion of judicial power,” the Chief Justice nevertheless argued that “[o]ur task is not to curtail

Law or Politics: Israeli Constitutional Adjudication As a Case Study

Abstract: A frequently asserted claim among American constitutional scholars is that constitutional adjudication is not lmv, but politics; more precisely, that the judicial process of interpreting the constitution and then of bringing the interpreted constitution to bear in resolving the conflict at hand, is not a legal process but a political one. Taking, as a case study, Israeli constitutional adjudication on religion and state, especially regarding freedom of religion, this article aims to illustrate that Israeli constitutional adjudication is indeed, to a large degree, politics and not law. A close examination of several Supreme Court decisions involving religion-and-state disputes will reveal that the justices' different backgrounds and worldviews have consistently led them to differing opinions regarding the exact meaning and scope of freedom of religion. If the proposed description of the Israeli perspective is indeed true, it demonstrates the importance of recognizing the inevitable political nature of judicial decisions, and therefore of making them more responsive to the democratic will. I shall make several initial suggestions regarding changes and adaptations that can and should be executed with a view to achieving this goal.

The Americans with Disabilities Act (ADA): Statutory Language and Recent Issues

Abstract: This report summarizes the major provisions of the Americans with Disabilities Act (ADA), and also discusses selected recent issues, including ten ADA Supreme Court cases.

Pegram v. Herdrich: a victory for HMOs or the beginning of the end for ERISA preemption?

Abstract: On June 12, 2000, a unanimous Supreme Court held that treatment decisions made by an HMO, acting through its physicians, are not fiduciary acts under ERISA. Thus the Carle HMO was not liable under ERISA for the harm caused when Pegram, one of Carle’s physician/owners, required Herdrich to wait an additional eight days before undergoing a necessary diagnostic procedure and, when Herdrich’s appendix ruptured during her wait for the procedure, then required her to receive emergency treatment at a Carle-owned facility fifty miles away, rather than at a nearby hospital. At first blush, this seemed like yet another judicial decision insulating managed care organizations (MCOs) from liability under ERISA. Advocates of expanding patients’ rights to sue health plans under legislation before Congress might have been expected to bombard members of Congress with outraged communications decrying Pegram as another illustration of how inadequate ERISA was in protecting participants in employer-sponsored group health plans. But the early euphoria or dismay quickly dissipated as ERISA experts began to focus on the larger legal questions raised by Justice Souter’s opinion. In particular, much discussion has ensued regarding the implications of the Pegram decision for preemption cases under which plaintiffs have been permitted to bring state law actions alleging substandard quality of care from their health plans. Pegram is a complex, yet fascinating, case that reveals the Supreme Court poised on the brink of another major erosion of ERISA preemption,

The Use of Non-Judicial Procedures to Resolve Employment Discrimination Claims

Abstract: This article discusses the use of non-judicial procedures to resolve employment discrimination claims under the different federal civil rights laws. The two major areas covered involve the use of private arbitration, based upon Supreme Court decisions permitting private employers to require their employees to agree to resolve all of their employment disputes through arbitral procedures, and the possible use of administrative procedures similar to those used by the National Labor Relations Board to resolve unfair labor practice charges. The article explores ways in which the rights of employees not represented by labor organizations could be protected in arbitral proceedings significantly structured by their employers.

Who is a fiduciary?--implications of Supreme Court rulings.

Abstract: The determination of who is a fiduciary under ERISA is of extreme importance in assessing potential ERISA liability. The analysis used in making this determination once seemed clear, but that may no longer be the case in the wake of recent Supreme Court decisions that redefine the line between fiduciary and nonfiduciary conduct.