Showing papers on "Supreme Court Decisions published in 2003"

Jurisprudential regimes and Supreme Court decisionmaking: The Lemon regime and establishment clause cases

Abstract: In this research note, we apply the construct of jurisprudential regimes as described in our recent article in American Political Science Review to the area of Establishment Clause jurisprudence. We hypothesize that Lemon v. Kurtzman represented a jurisprudential regime in the Supreme Court's decisionmaking in this area of law. Our analysis shows that the predictors of the Court's decisions in the two periods differed in ways that are very consistent with the types of changes one would expect the hypothesized regime shift to produce. Introduction In a recent article (Richards & Kritzer 2002), we proposed a new way of conceptualizing the role of law for use in modeling Supreme Court decisionmaking. We suggested that it is incorrect to think of law at the Supreme Court level as operating through the traditional mechanisms of plain meaning, precedent, or intent of the drafters. Given the Court's discretionary docket, the cases decided by the Court are precisely those that cannot be decided through the relatively mechanistic processes that Segal and Spaeth (1993, 2002) label the "legal model." We posit that the influence of law is to be found in what we label "jurisprudential regimes," which we define as "a key precedent, or a set of related precedents, that structures the way in which the Supreme Court justices evaluate key elements of cases in arriving at decisions in a particular legal area" (Richards & Kritzer 2002:308). The manifestation of jurisprudential regimes appears in the way that specific variables influence the justices' decisions. We propose that the way to test for the presence of regimes is to look for changes in how variables influence justices in a particular jurisprudential area. In our earlier article, we tested this theory by examining Supreme Court decisions in the area of free expression. We hypothesized that the 1972 companion cases Chicago Police Department v. Mosley (408 U.S. 92) and Grayned v. Rockford (408 U.S. 104) demarcated a regime change that is reflected in a central distinction between regulation that is content-neutral and regulation that is content-based. Our statistical analysis provided strong support for our theory as applied in this area of Supreme Court jurisprudence. A central question we left for future research is whether the pattern we found for free expression cases can be found for other jurisprudential areas. In this research note, we extend our analysis to the Supreme Court's decisionmaking concerning the Establishment Clause. Establishment Clause Jurisprudence Modern Establishment Clause jurisprudence dates from Everson v. Board of Education (330 U.S. 1, 1947) when the Supreme Court, in a case involving reimbursing parents of schoolchildren for the costs of transportation to school even if the school involved was a parochial school, extended, by incorporation through the Fourteenth Amendment, the Establishment Clause strictures on Congress to the states. In Everson, Justice Black, even while upholding the aid involved in the case using a "child benefit" argument, enunciated what became known as the "no aid" test reflecting a "wall of separation between Church and State" (Levy 1994:152-54). Over the next fifteen years, the Court decided two Establishment Clause cases dealing with voluntary religious instruction during school hours, first striking down programs held in public school buildings (McCollum v. Board of Education, 333 U.S. 203, 1948) and then upholding off-premises programs using so-called released time arrangements (Zorach v. Clauson, 343 U.S. 306, 1952). In a set of three cases (McGowan v. Maryland, 366 U.S. 420, 1961; Two Guys v. McGinley, 366 U.S. 582, 1961; and Gallagher v. Crown Kosher Supermarket, 366 U.S. 617, 1961), the Court dealt with state laws forbidding various kinds of commercial activities on Sunday (so-called blue laws), with the Court rejecting the challenges to these laws in all the three cases. The school prayer cases in 1962 (Engel v. …

Public Reaction to Supreme Court Decisions

Abstract: 1. The high-wire act: the Supreme Court and public opinion 2. Placing the cases in legal and political context 3. Media attention and public awareness 4. Changing hearts and minds? Examining the legitimation hypothesis 5. Public support for the Supreme Court 6. Conclusion: balancing independence and support.

Supreme Court Decisions on Electoral Rules after Mexico's 1994 Judicial Reform: An Empowered Court

Abstract: In 1994 Mexico's ruling party granted new powers of judicial review and increased independence to the Mexican Supreme Court. Would these reforms enable the Court to overcome decades of judicial subordination? I examine all Mexican Supreme Court decisions addressing the constitutionality of electoral rules – rules that are inherently contentious because they determine the chances for obtaining power – during Zedillo's sexenio. These cases, culminating with a 1998 ruling counter to a key PRI political interest, demonstrate a fundamental change in Mexico's institutional power balance. This study also demonstrates the utility of electoral cases to evaluate Court power within and across countries.

Framing Supreme Court Decisions The Mainstream Versus the Black Press

Abstract: The Supreme Court regularly makes decisions with profound policy implications, but it largely leaves it to others to shape public opinion regarding those policies. The media play an important role ...

The Status of Pregnant Women and Fetuses in US Criminal Law

Abstract: IN 2001 THE US SUPREME COURT RULED FOR THE FIRST TIME in a case directly related to the criminal prosecution of pregnant women for alleged fetal harm. In Ferguson v City of Charleston the Supreme Court considered whether women retain constitutional rights in pregnancy, specifically, the Fourth Amendment right to be free from unreasonable or warrantless searches. The court concluded that drug testing of pregnant women for the purpose of criminal investigation may not be conducted without a warrant or explicit consent, even when justified by the benign purposes of protecting fetuses and promoting drug treatment. This case addressed only the issue of evidence collection for criminal prosecution of pregnant women, not the more general question of whether prosecutions are permissible. Legal activity on this broader question has occurred at the state level for more than 2 decades. To date, no state legislature has adopted a law that creates unique criminal penalties for pregnant women who are addicted to, dependent on, or using drugs. This is consistent with longstanding Supreme Court decisions recognizing that addiction is an illness and that criminalizing it violates Eighth Amendment prohibitions against cruel and unusual punishment. Numerous court cases have arisen, however, as the result of individual prosecutions of pregnant women. When pregnant women are prosecuted for potential fetal harm, courts are asked to determine if existing criminal statutes can be expanded and applied to pregnant women’s behavior and health conditions. In order to clarify the status of pregnant women and fetuses in US criminal law, we examined written legal opinions in cases in which women were criminally prosecuted based on claims that their action or inaction risked fetal harm. We located cases by searching LexisNexis and Westlaw using the following terms: pregnant, pregnancy, drug(s), illegal drug(s), cocaine, heroin, alcohol, (meth)amphetamine, addiction, unborn child, prenatal, drug delivery, child, child abuse, fetus, fetal, homicide, feticide, maternal, perinatal, and neonatal. We searched only for published State Appellate or State Supreme Court opinions, as these cases set legal precedent. We also consulted with agencies and attorneys called upon to represent women when they are prosecuted. We found 22 opinions in 16 states, and 1 opinion in the military court system. Women were generally charged with 1 of 3 types of crimes: child endangerment/abuse; illegal drug delivery to a minor; or fetal murder/manslaughter. In all abuse cases, prosecutors equated a viable fetus with a child and argued that pregnant women’s drug use or addiction constituted child abuse. In all drug delivery cases, women were accused of trafficking drugs to the fetus through the umbilical cord. Some prosecutors, conceding that fetuses are not legal persons, argued that the drug “delivery” occurred in the moments after the infant was born, but before the umbilical cord was clamped and cut. In all murder and attempted murder cases, prosecutors again equated the viable fetus with a child and argued that existing murder laws applied to women’s actions. When questions arise about the meaning or application of a criminal law, the court’s first function is to determine and enforce the legislature’s intent. In all of the cases we examined, with the exception of those in South Carolina, courts declined to expand existing state laws to punish pregnant women based on claims of fetal rights, finding no evidence that legislatures intended existing laws to be used this way. Judges determined that the plain meaning of words like “child” does not include fetuses, that the terms “parent” or “guardian” do not include pregnant women in relation to the fetus, and that the word “delivery” does not include drug transmission through umbilical circulation. Courts pointed out that when legislatures intend to discuss a fetus, they use the word “fetus.” Some courts also held that judicially rewriting existing laws to make them suddenly applicable to pregnant drug-using women would violate constitutional due process principles of fair warning and notice. Several courts noted that such a revision to the law would make them unconstitutionally vague, permitting prosecution for a limitless number of situations, from smoking cigarettes to giving birth at advanced maternal age, to employment at a potentially hazardous job. Many courts also recognized that such expansion of the law could unwittingly encourage women to have abortions or to avoid seeking prenatal or addiction care. Only South Carolina’s high court has come to a different conclusion, interpreting the word “child,” in its criminal child endangerment statute, to include viable fetuses. By doing so, the court made its child endangerment statute applicable to pregnant women whose actions risk harm to a viable fetus, and created precedent for applying other South Carolina criminal laws to pregnant women as well. Even in South Carolina, where using drugs or being addicted to drugs during pregnancy has effectively been criminalized, pregnant women retain their Fourth Amendment freedom from unreasonable and warrantless searches. In Ferguson v City of Charleston the Supreme Court held that “performance of a diagnostic test [urine drug screen] to obtain evidence of a patient’s criminal conduct for law enforcement purposes is an [unconstitutional] unreasonable search

A comparative study of the law of palliative care and end-of-life treatment.

Abstract: Since the Supreme Court of New Jersey decided the Quinlan case a quarter of a century ago, three American Supreme Court decisions and a host of state appellate decisions have addressed end-of-life issues. These decisions, as well as legislation addressing the same issues, have prompted a torrent of law journal articles analyzing every aspect of end-of-life law. In recent years, moreover, a number of law review articles, many published in this journal, have also specifically addressed legal issues raised by palliative care. Much less is known in the United States, however, as to how other countries address these issues. Reflection on the experience and analysis of other nations may give Americans a better understanding of their own experience, as well as suggest improvements to their present way of dealing with the difficult problems in this area. This article offers a conceptual and comparative analysis of major legal issues relating to end-of-life treatment and to the treatment of pain in a number of countries. In particular, it focuses on the law of Australia, Canada, the United Kingdom, Poland, France, the Netherlands, Germany, and Japan.

Mental retardation and the death penalty: a guide to State Legislative issues.

Abstract: The interest in State Legislatures in the topic of mental retardation and the death penalty has obviously heightened with the United States Supreme Court’s decision in Atkins v. Virginia, 122 S.Ct. 2242 (June 20, 2002). The purpose of this document is to provide legislators and advocates with guidance in implementing the Atkins decision, so that each State’s death penalty legislation is in full compliance with constitutional requirements.

The Demographics of Justice: Student Searches, Student Rights, and Administrator Practices

Abstract: This study employs a mixed methodology consisting of legal research, policy analysis, and quantitative research to study the impact of two U.S. Supreme Court decisions, N.J. v. T.L.O. and Vernonia v. Acton on students’ rights to be free from unreasonable searches and seizures as guaranteed under the Fourth Amendment to the U.S. Constitution. Researchers studied 173 lower court cases following the U.S. Supreme Court rulings and found, among other things, that most decisions were in state and criminal courts; 79% favored school districts rather than students; a standard of reasonable suspicion was used in 62% of all searches; 75% of the students searched were males and 75% were between the ages of 14 and 17; and strip searches occurred most frequently in poorer communities. The courts have granted considerable discretion to school officials in searching students, a fact that has strong implications for students’ rights.

Avoiding ipse dixit mislabeling: post-Daubert approaches to expert clinical opinions.

Abstract: Recent Supreme Court decisions emphasize the need to regulate the admissibility of expert testimony by means of standards that require opinions to go beyond ipse dixit--that is, that are based on more than the fact that the expert said it. The authors discuss subtextual themes underlying this issue and suggest approaches to attaining expert clinical opinions that reduce the likelihood of being mislabeled as ipse dixit contributions. The approach involves providing substantiation of testimony by offering a reliable methodologic basis for communicating the relevant opinion in a thoughtful and intellectually rigorous manner. A model is offered, emphasizing a process approach to opinion formulation and reformulation prior to deposition and trial. This approach addresses not only the Supreme Court's current focus on moving expert opinion beyond ipse dixit, but also such concerns as possible distortions of an expert opinion in the adversarial process. Since judicial determinations may vary depending on many factors, however, even the most careful process of opinion formulation cannot guarantee admissibility. The article assumes a general familiarity among forensic readers with the Federal Rules of Evidence and the recent series of Supreme Court decisions in this area.

Reading between the Lines: Analyzing the Supreme Court’s Views on Gender Discrimination in Employment, 1971–1982

Abstract: Supreme Court decisions can be read on two levels: as prescriptive statements of what legally can or cannot be done and as discourses that define the Court’s view of social problems. This article explores this latter role through a content analysis of Court decisions that directly address the struggle for women’s equality in the workplace during the 1970s. As it formulated the legal rules applicable to gender discrimination, the Court also gave social and political meaning to the concept of equality. Examining this process of problem definition in the judicial arena provides a different perspective for viewing Supreme Court decisions.

Does the Statutory Overtime Premium Discourage Long Workweeks

Abstract: Using a pooled data set consisting of 20 annual observations on each of 11 major industry groups, the author estimates the effects of overtime pay regulation on weekly work schedules. In an analysis that controls for workweek trends within industries, the sharp expansions in overtime pay coverage resulting from legislative amendments and Supreme Court decisions are found to have had 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.

Sex offender registration and community notification challenges: the Supreme Court continues its trend

Abstract: All states and the District of Columbia have passed sex offender registration and community notification laws. While the specific provisions of these statutes vary, all have public safety as a primary goal. The authors discuss two recent cases heard by the United States Supreme Court that challenged the constitutionality of Alaska's and Connecticut's statutes. The laws were challenged as violations of the United States Constitution's prohibition on ex post facto laws and its Fourteenth Amendment guarantee of procedural due process. In both cases, the statutes were upheld. As it has found in challenges to sexually violent predator statutes, the Court emphasized that the registration and community notification schemes are civil and not criminal in nature. The article concludes with a discussion of possible implications for clinicians involved in evaluating or treating sex offenders.

Nazi Saboteurs on Trial: A Military Tribunal and American Law

Abstract: The 9/11 attacks were not the first operations by foreign terrorists on American soil. In 1942, during World War II, eight Germans landed on our shores bent on sabotage. Caught before they could carry out their missions, under FDR s presidential proclamation they were hauled before a secret military tribunal and found guilty. After the Supreme Court s emergency session upheld the tribunal s authority, six of the men were executed. Louis Fisher chronicles the capture, trial, and punishment of the Nazi saboteurs in order to examine the extent to which procedural rights are suspended in time of war. One of America s leading constitutional scholars, Fisher analyzes the political, legal, and administrative context of the Supreme Court decision Ex parte Quirin (1942), reconstructing a rush to judgment that has striking relevance to current events. Fisher contends that the Germans constitutional right to a civil trial was hijacked by an ill-conceived concentration of power within the presidency, overriding essential checks from the Supreme Court, Congress, and the office of the Judge Advocate General. He reveals that the trials were conducted in secret not to preserve national security but rather to shield the government s chief investigators and sentencing decisions from public scrutiny and criticism. Thus, the FBI s bogus claim to have nabbed the saboteurs entirely on their own was allowed to stand, while the saboteurs death sentences were initially kept hidden from public view. Fisher also takes issue with the Bush administration s mistaken citing of Ex parte Quirin as an apt precedent for trying suspected al Qaeda terrorists. Concisely designed for students and general readers, this newly abridged and updated edition provides a cautionary tale as our nation struggles to balance individual rights and national security, as seen most clearly in the recent Supreme Court decisions relating to Yaser Esam Hamdi, Jose Padilla, and the detainees at Guantanamo."

Human rights litigation in Zimbabwe : past, present and future

Abstract: This article examines the progress and difficulties experienced in litigating human rights in Zimbabwe, from independence in 1980 to the present day. The article begins by discussing the constitutional basis for human rights litigation and explains the various avenues to pursue issues relating to the Declaration of Rights in the Supreme Court. The article identifies certain time frames that influenced the development of human rights litigation in Zimbabwe and briefly outlines various cases that set precedents for future litigation. During the first five years after Zimbabwe had gained independence, the ability of the Supreme Court to hear litigation on human rights issues was severely limited due to a constitutional provision that determined that existing laws could not be challenged under the Declaration of Rights. Thereafter followed what has been described as the 'golden era of human rights litigation', from 1985-2001. Decisions were taken in almost every field of human rights specified in the Declaration of Rights and the vast majority of these decisions favoured the citizen. Post-2001 human rights litigation, however, has by March 2003 yielded only two Supreme Court decisions where the citizens' rights prevailed. The problems currently experienced by the judiciary in Zimbabwe are identified and it is argued that the future of the judiciary is intertwined with the future of the government of Zimbabwe.

The Three Faces of Power: The U.S. Supreme Court's Legitimization of School Authority's Parental, Police, and Pedagogic Roles.

Abstract: In its decisions New Jersey v. T.L.O. (1985) and Vernonia v. Acton (1995), the U.S. Supreme Court legitimated the actions and policies of school authorities. In doing so, it also defined and legitimated the following three roles of school authorities: agent-of-state, custodial, and tutelary. Hence, the role of school authorities and the nature of their relationship with students has become a vacillating one. This article explores the trichotomous roles cited in these U.S. Supreme Court decisions. It also examines that although school authorities claim, in their professional judgment, to be acting in the best interest of the students, they are reproducing and reinforcing the asymmetrical power relationships in schools and society. Finally, this article addresses ethical ramifications of, what those concerned with social justice designate as, the systemic violence that may be wrought by school authorities enacting their trichotomous roles.

The competency of criminal defendants to refuse, for delusional reasons, a viable insanity defense recommended by counsel

Abstract: This article addresses the issues of whether mentally ill defendants charged with serious crimes who refuse to plead a viable and counsel-recommended insanity defense for delusional reasons (but who are otherwise competent to stand trial) should be considered to be competent, or incompetent, to stand trial; whether such defendants should be allowed to represent themselves with a delusional defense; and whether an insanity defense may properly be imposed upon such defendants. Based on an analysis of relevant Supreme Court decisions and other relevant cases, it is concluded that such defendants should not be allowed to go forward with a delusional defense (at least until reasonable efforts to treat the defendants' delusions are made). It is also argued, however, that unless an insanity defense would be viable (as well as recommended by counsel) delusional defendants who are otherwise competent to stand trial should be permitted to go forward, and represent themselves, with the defense of their choosing.

The impact of anti-abortion activities on state abortion rates

Abstract: This paper examines the impact anti-abortion activities have on state abortion rates. Using 1992 data from the 50 U.S. states, the empirical results find that anti-abortion harassment activities (picketing, picketing with contact, vandalism, bomb threats, and stalking) did not significantly reduce the demand for abortion within a state nor did they cause a change in the location of the abortion procedure. However, three of the anti-abortion harassment activities (picketing with contact, vandalism, stalking) are found to significantly reduce the supply of abortions performed within a state. These results take on particular significance because of recent Supreme Court decisions which consider the threat to a woman’ privacy (the demand side) as the primary reason for curbing anti-abortion protest activities.

Black and White After Brown: Constructions of Race in Modern Supreme Court Decisions

Abstract: This essay examines one dimension of a quite broad-ranging topic: how modern American law is explicitly and implicitly constructing the racial identities of contemporary American citizens. I focus on two contrasting conceptions of "white" and "black" racial identity visible in decisions of the United States Supreme Court during the post-Jim Crow era.' I term these the "damaged race" and the "racial irrelevance" views (though the latter is more customarily referred to as "color-blind" constitutionalism).2 I argue that both these conceptions are flawed, because both can easily be understood to imply that whites today are as a group superior to blacks in America, and belief in such superiority can in turn support policies and practices that continue to privilege white interests. I suggest that a third conception, that of "distinct racial damages," does more to make sense of how the law has helped create the racial identities that Americans still experience themselves as possessing. It holds that both "blacks" and "whites" today should be seen as social groups that are still harmed by the consequences of past official constructions of race, though in very different ways. This conception of contemporary racial identities is, I believe, simply accurate; it may also serve as a better guide to legal and political action on racerelated issues. Though I think that this analysis can be extended to encompass the great variety of racial identities in past and present

The Americans With Disabilities Act Ada: Overview, Regulations and Interpretations

Abstract: The Americans with Disabilities Act (ADA) enacted on 16 July 1990, provides broad non-discrimination protection for individuals with disabilities in employment, public accommodations and services operated by public entities, transportation, and telecommunications. This book summarises the major provisions of the act as amended and discusses recent issues including rules, Supreme Court decisions, regulations and information sources.

When is consent really consent? An analysis of Schneckloth v. Bustamonte and its progeny

Abstract: This article examines the doctrine of consent as it has been applied to vehicular searches and seizures by the federal courts. It takes the position that current doctrine has undermined many of the freedoms implied in the Fourth Amendment and, in the context of other Supreme Court decisions and of “racial profiling”, may contribute to the racial divisions found in our criminal justice system.

The Tenuous Nature Of The Medicaid Entitlement

Abstract: Although Medicaid is regarded as a federal entitlement program, nowhere does the Medicaid statute explicitly recognize a federal right of action to enforce recipients’ rights. Arguably, the Supreme Court, rather than Congress, first recognized the right of Medicaid recipients to protection of federal law. A controversial 2001 federal court decision, however, called into question the continuing existence of federally enforceable Medicaid rights. Although this decision has been reversed, it illuminates the tenuous nature of the Medicaid entitlement, as do recent Supreme Court decisions narrowing federal rights. Congress should amend the Medicaid statute to ensure the rights of Medicaid recipients.

Relationship between Public Opinion and Supreme Court Decisions: Was Mr. Dooley Right?

Abstract: This chapter contains sections titled: Method, Results, Supreme Court Decisions, Comparison of Poll Data and Court Decisions, Discussion, Support for the Hypothesis and Conclusions, Notes, Cases, References

Historical Revisionism and Constitutional Change: Understanding the New Deal Court

Abstract: Now into the fray comes Professor G. Edward White, one of the nation's preeminent legal historians and the author of several important books about the intersection of law and history. Perhaps none of his books is more important, however, than his most recent work, The Constitution and the New Deal, an elegant and masterful study of the transformation of the constitutional jurisprudence of the United States Supreme Court during the first half of the twentieth century. Primarily adapted from several law review articles the author published in leading law reviews throughout the past decade, this book re-examines the strands of early twentiethcentury constitutional jurisprudence. Not only does it reinforce Cushman's conclusions about the pace of jurisprudential change, it also approaches the issue of reconciling the New Deal and the Supreme Court as a problem of historiography. White offers a revised historical account of early twentieth-century constitutional thought that analyzes the broad contours of change in historical context. Rather than focus on doctrinal intricacies, the book makes selective use of academic commentary from the subject period and representative Supreme Court decisions to illustrate the arc of constitutional development in several areas, including a few often neglected by scholars of this era. In essence a study of intellectual constitutional history, it also provides extensive criticism of traditional historiography and posits that much of the contemporary misunderstanding about the role of the Supreme Court during the New Deal emanates from flawedhistorical methods and modernist assumptions about the judicial behavior of early twentieth-century Supreme Court Justices. To this end, White seeks to recapture the constitutional jurisprudential debates of this era and to advance a more complicated and richly nuanced account of transformative constitutional events. From this perspective, the New Deal and the Court-packing plan recede in importance as catalysts of constitutional change and instead become historical episodes stripped of their mythical importance, which White attributes to the indiscriminate use of political abels and behavioralist presuppositions of generations of scholars. In many respects, White succeeds in attaining his ambitious objective and has written a compelling revisionist history of one of the more controversial and misunderstood periods of American constitutional history. This Book Review corresponds to White's method of complicating and revising the conventional perspective. After an introductory discussion of the concept of revolution, Part I will address the conventional account of the constitutional revolution of 1937 and the factors White attributes to its enduring position of distorted significance. Part II will examine and respond to White's treatment of three areas of constitutional jurisprudence complicating the conventional account: foreign relations, administrative law, and free speech. With much precision and careful analysis, White illuminates the developments of these areas of law and, for the most part, effectively supports his revised narrative of early twentieth-century constitutional change. Finally, in Part III, this Book Review will examine the heart of White?s effort, namely his alternative explanation for the transformation in early twentiethcentury constitutional jurisprudence, particularly his emphasis on the ascendancy of modernism and the connection between the Supreme Court's internal intellectual climate and developments in both private and public law jurisprudence. To this end, White offers a detailed and shrewd account of the relationship between the formalism/realism debate in common law and the notion of constitutional adaptivity in political economy constitutional law. As I will discuss below, White's analysis overlooks, at certain points, factors that would ven more fully develop his already in-depth treatment of this period of constitutional change. Nevertheless, he generally succeeds in providing a reasoned, subtle, and persuasive revision of the change in constitutional jurisprudence of the early twentieth century.

Judicial Enforcement of Predispute Arbitration Agreements: Back to the Future

Abstract: Recent Supreme Court decisions have sent federal courts a strong signal to enforce mandatory employment arbitration agreements under the Federal Arbitration Act (FAA). Critics worry that individuals lose access to courts to vindicate their statutory employment rights, and are subjected to unfair rules and procedures in these private tribunals. We present original empirical research from 396 federal court decisions from 1954-2002 in which employees sought to avoid arbitration, and analyze rulings before Gilmer, after Gilmer and before Circuit City, and after Circuit City. Also, statistical analysis is provided for specific issues raised by employees. This evidence is then related to extensive research of pre-FAA court rulings, and debunks the myth that early courts were hostile to arbitration. The historical and statistical elements of our analysis moderate the claims of arbitration advocates and critics. Arbitration supporters would strengthen their case for this ADR method by recognizing that American courts have consistently supported the use of pre-dispute arbitration agreements since the early 1800s. Nevertheless, judicial support for arbitration has been tempered during the last two centuries by due process limitations. This finding addresses a major concern for arbitration critics, who perceive current courts as too permissive in enforcing one-sided arbitration agreements. Post-Gilmer and Circuit City courts have denied enforcement with surprising frequency, notwithstanding the Supreme Court's strong and clear message to avoid interfering with these arrangements. They are unintentionally re-creating many of the due process safeguards from 19th Century courts.