Showing papers on "Supreme Court Decisions published in 2007"

Fragmentation of Power and the Emergence of an Effective Judiciary in Mexico, 1994-2002

Abstract: Legal reforms that make judges independent from political pressures and empower them with judicial review do not make an effective judiciary. Something has to fill the gap between institutional design and effectiveness. When the executive and legislative powers react to an objectionable judicial decision, the judiciary may be weak and deferential; but coordination difficulties between the elected branches can loosen the constraints on courts. This article argues that the fragmentation of political power can enable a judiciary to rule against power holders' interests without being systematically challenged or ignored. This argument is tested with an analysis of the Mexican Supreme Court decisions against the PRI on constitutional cases from 1994 to 2002. The probability of the court's voting against the PRI increased as the PRI lost the majority in the Chamber of Deputies in 1997 and the presidency in 2000.

The story of cruel and unusual

Abstract: A searing indictment of the American penal system that finds the roots of the recent prisoner abuse at Abu Ghraib and Guantanamo in the steady dismantling of the Eighth Amendment's prohibition of "cruel and unusual" punishment. The revelations of prisoner abuse and torture at Abu Ghraib and more recently at Guantanamo were shocking to most Americans. And those who condemned the treatment of prisoners abroad have focused on U.S. military procedures and abuses of executive powers in the war on terror, or, more specifically, on the now-famous White House legal counsel memos on the acceptable limits of torture. But in The Story of Cruel and Unusual, Colin Dayan argues that anyone who has followed U.S. Supreme Court decisions regarding the Eighth Amendment prohibition of "cruel and unusual" punishment would recognize the prisoners' treatment at Abu Ghraib and Guantanamo as a natural extension of the language of our courts and practices in U.S. prisons. In fact, it was no coincidence that White House legal counsel referred to a series of Supreme Court decisions in the 1980s and 1990s in making its case for torture.Dayan traces the roots of "acceptable" torture to slave codes of the nineteenth century that deeply embedded the dehumanization of the incarcerated in our legal system. Although the Eighth Amendment was interpreted generously during the prisoners' rights movement of the late 1960s and 1970s, this period of judicial concern was an anomaly. Over the last thirty years, Supreme Court decisions have once again dismantled Eighth Amendment protections and rendered such words as "cruel" and "inhuman" meaningless when applied to conditions of confinement and treatment during detention. Prisoners' actual pain and suffering have been explained away in a rhetorical haze-with rationalizations, for example, that measure cruelty not by the pain or suffering inflicted, but by the intent of the person who inflicted it. The Story of Cruel and Unusual is a stunningly original work of legal scholarship, and a searing indictment of the U.S. penal system.

Does the Median Justice Control the Content of Supreme Court Opinions

Abstract: A commonly-held view of Supreme Court decision-making is that the median justice on the Court controls the content of opinions. This view rests on an application of median voter theorem - typically applied to legislative decision-making or party positioning - in the judicial context. We argue that the judicial context often involves decision problems that differ from these more familiar applications of median voter theory in ways that make a straightforward application of the median voter theorem inappropriate. In particular, judges simultaneously vote on an outcome (the judgment) and sign onto a rationale (the opinion). We demonstrate that if judicial preferences across these two aspects of a case are discontinuous - that is, if justices do not switch their vote on the outcome in exchange for concessions on rationale - the median justice typically does not determine the content of Supreme Court decisions. We offer an alternative account of the location of influence on decision content. Finally, we offer empirical evidence that demonstrates the inadequacy of median justice theory, and suggests support for our alternative account.

Judicial Decision Making In the Supreme Court of Canada: Updating the Personal Attribute Model

Abstract: . This study seeks to add to the current understanding of the political nature of the Supreme Court of Canada. We analyze a data set consisting of all nonunanimous published Supreme Court decisions for the period 1949 to 2000. A prior study by Tate and Sittiwong (1989) suggested a model of judge attributes for the period 1949 to 1985. We build on that analysis by extending the time period to 2000, which allows the impact of gender also to be assessed. We find that since the Court gained substantial docket control, the types of cases the Court hears has changed from the period studied by Tate and Sittiwong. In the more recent period, civil rights and liberties cases are much more substantial in number. We conclude some of the variables in the Tate and Sittiwong study may be time bound and we suggest a new model of attitudinal voting.Resume. Cet etude cherche de augmenter le savoir courant du le nature politique du Cour supreme du Canada. Nous analysons un ensemble de donnees non unanime compose de tout decisions publie du Cour supreme entre les annees 1949 a 1985. Une enquete precede fait par Tate et Sittiwong (1989) a propose un modele des attributs des juges pour la periode entre 1949 a 1985. Nous poursuivons laquelle analyse pour prolonger la periode du temps jusqu'a 2000, ce que on permettre evalue l'effet du sexe aussi. Nous trouvons que comme le Cour a conquis considerable control du registre, les gendres dossier entendre par le Cour ont change depuis le periode de enquete de Tate y Sittiwong. Pendent le periode plus recent les dossiers concernant les droits civiles et libertes sont beaucoup plus nombreux. Nous concluons que possiblement, quelques variables de l'enquete du Tate et Sittiwong soient liees par le temp et nous proposent un modele neuf des votes attitudinal.

After Marshall: Implementation of Aboriginal Fishing Rights in Atlantic Canada

Abstract: Both the Canadian Constitution and several Supreme Court decisions have guaranteed Canada’s First Nations special rights to natural resources including lands, waters, and fisheries. In acting on these rights, however, aboriginal peoples of Canada not been successful in arguing that their activities should be guided by the objectives, rules and protocols established by their First Nation, and not by those of the post-colonial Government of Canada. More recently, the 1999 Marshall decision of the Supreme Court of Canada recognized the Treaty Right of the Mi’kmaq, Maliseet and Passamaquoddy peoples to rely on natural resources for a ‘moderate livelihood’ and a ‘communal level of benefit’. While this decision was met with uncertainly and some hostility by the non-native population, it did result in the government offering new program support to First Nations communities engaged in the commercial fishery in the Canadian Maritimes. This paper assesses those programs and provides an analysis of what Firs...

The Persuasive Power of Russian Courts

Abstract: Given the centralization of power in contemporary Russia, can nonexecutive institutions exercise some power, especially institutions such as high courts, which are critical to establishing the rule of law? In particular, can high courts influence the Russian public through their power to persuade? Using experiments embedded in three surveys of more than 6,000 Russians each, the authors find that the Supreme and Constitutional Courts, as well as the Duma, have persuasive power but greater potential to persuade tolerant Russians to be intolerant than vice versa. The findings have powerful implications for understanding the judicial role in protecting the rights and liberties of minorities. Keywords: persuasion; law and society; judicial politics; courts; political psychology; Russia; postcommunism The establishment of the rule of law depends on the creation and maintenance of an effective judicial system. One measure of an effective judicial system is whether the highest court in the land has the power of moral suasion, or the ability to persuade the public to accept judicial opinions. We seek to understand whether the high courts in Russia have this power to persuade and, if so, whether the courts' power is more influential when judicial opinions reflect tolerant ideals or intolerant ideals. Our question has theoretical and practical implications. Understanding the influence of high courts on a non-American population can contribute significantly to our more general understanding of courts and public opinion, which to date is heavily skewed by case studies of U.S. Supreme Court decisions. Understanding the influence of Russian high courts in particular can speak to the growing debate about the future of the Russian political system and whether its increasing centralization of executive power leaves room for other institutions to influence the public and thereby exercise power. Public persuasion by courts may be the first of many long steps necessary for Russian institutions to feel public pressure to address current problems implementing court decisions (Kahn 2002; Trochev 2002; Hendley 2004; Solomon 2004). Using experimental designs embedded in three surveys conducted in 2003, 2004, and 2005 of more than 6,000 urban Russians each year, we investigate the potential persuasive power of Russian high courts. We measure initial baseline attitudes toward a widely disliked group in Russia, Jehovah's Witnesses, and then measure acceptance of contrary decisions by three different institutional source cues: the Russian Supreme Court, the Russian Constitutional Court, and as a basis for institutional comparison, the lower house of the Russian legislature, the Duma. Our experiments allow us to test whether opinions can be changed and how strongly, whether tolerant court decisions are more or less persuasive than intolerant court decisions, whether one court is more persuasive than another, and whether the court's potential role as persuader is unique or shared by other institutions such as the Duma. We find that high courts in Russia do have the potential to persuade at least some urban Russians. The Russian Supreme Court and Russian Constitutional Court have roughly equal potential to persuade, and consistent with prior research, persuasion is easier for each court when the decision reflects intolerance than when it reflects tolerance. The Russian legislature, the Duma, has similar potential to persuade and similarly stronger potential with intolerant decisions, suggesting that some urban Russians may be persuadable not just by courts but by any authoritative institution. The Persuasive Power of Courts The persuasive power of courts is considered so integral for judicial effectiveness because persuasion is the only leverage courts have. Famously possessed of neither the purse nor the sword (Hamilton 1787), courts must rest their authority instead on public acceptance of judicial decisions. …

At the Invitation of the Court: Eminent Domain Reform in State Legislatures in the Wake of the Kelo Decision

Abstract: The Supreme Court's 2005 Kelo decision upholding a condemnation of private property for economic development purposes sparked a wave of reform legislation in state legislatures. However, there is considerable variation in the extent to which state legislatures restricted the power of eminent domain. This article seeks to account for this variation. It tests hypotheses drawn from the literature on state responses to Supreme Court decisions and research on factors shaping state policy change in the wake of federal actions more generally. The results show support for an organized interests explanation, a need/scope of the problem explanation, and some elements of an explanation featuring institutional characteristics of the state legislature; there are mixed findings with respect to the role of public ideology.

Of Metaphor, Metonymy, and Corporate Money: Rhetorical Choices in Supreme Court Decisions on Campaign Finance Regulation

Abstract: This Article examines the metaphorical and metonymical framing of corporate money in Supreme Court decisions about campaign finance regulation. Metaphorical influences (corporation as a person, spending money as speech, marketplace of ideas as the model for First Amendment analysis) affected early decisions about the regulation of corporate spending in election campaigns. Later, a metonymical move to isolate corporate money and then to focus on its malevolent tendencies displaced the earlier view of corporate money as speech. This movement was best depicted in McConnell v. Federal Election Commission, 540 U.S. 93 (2003), the Supreme Court's 2003 decision on the Bipartisan Campaign Reform Act of 2002 (BCRA). In McConnell, a majority of the Court severed corporate money from the concepts of corporate speech and political participation in election campaigns and focused instead on corporate money's potential to corrupt lawmakers, buy influence, flood the market, and distort the election process. Since McConnell, another shift in perspective has occurred. In June 2007, the Supreme Court upheld an as-applied challenge to BCRA, casting doubt on the eventual fate of the holding in McConnell that a pre-election prohibition on electioneering communications funded by corporations and unions did not violate the First Amendment. In McConnell, the Court upheld the ban against a facial challenge, but Wisconsin Right to Life later challenged the provision as applied to the anti-abortion group. The three-judge panel authorized to hear constitutional challenges to BCRA eventually held (2-1) that the ban on electioneering communications violated the First Amendment as applied to the advertisements sponsored by a nonprofit ideological advocacy corporation, and in Federal Election Commission v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007), the Supreme Court agreed (5-4), with Chief Justice John Roberts., Jr., and Justice Samuel Alito, Jr., in the majority. In McConnell, Justice O'Connor, since replaced by Chief Justice Roberts, had supported the ban; Chief Justice William Rehnquist, since replaced by Justice Alito, did not. This Article illustrates and assesses the rhetorical choices in the debate about how to view corporate participation in election campaigns. Choices among different ways of portraying the target of governmental action affect judicial, lawyerly, and public understanding, reasoning, and evaluation. Competing rhetorical moves appear to lead to different results: the marketplace of ideas in which corporations speak goes unregulated for First Amendment purposes, while the corporate money from which potential evils flow must be regulated to protect the election process. Courts may find it useful to behave as if these outcomes are determined by neutral principles, but it may be only the frame selected that makes it appear to be so.

Harvard, Not Chicago: Which Antitrust School Drives Recent Supreme Court Decisions

Abstract: The U.S. Supreme Court has now decided 14 antitrust cases in a row in favor of the defendant. But this does not indicate an embrace of the conservative Chicago School over the moderate Harvard School. To the contrary, on every issue the Court has addressed where those two schools are in conflict, the Supreme Court has sided with the Harvard School. It has also sided with sound antitrust economics rather than with formalisms favoring plaintiffs or defendants.

Supreme Court Nominations, Legitimacy Theory, and the American Public: A Dynamic Test of the Theory of Positivity Bias

Abstract: Social scientists have taught us a great deal about the legitimacy of the U.S. Supreme Court. Unfortunately, however, most research fails to consider how the public's views of political institutions like the Court change over time. But opinions can indeed change, with at least two types of "exogenous" sources - controversial Supreme Court decisions and politicized confirmation hearings - providing engines for attitude change. Events such as these may awaken attitudes from their hibernation, allowing for the possibility of updating. Two types of change seem possible: Attention to things judicial may be associated with exposure to highly legitimizing symbols of judicial power (e.g., robes), symbols that teach the lesson that the Court is different from ordinary political institutions and therefore is worthy of esteem. Gibson and Caldeira refer to this as "positivity bias." Alternatively, events may teach that the Court is not different, that its role is largely "political," and that the "myth of legality" really is a myth. Since so few studies have adopted a dynamic perspective on attitudes toward institutions, we know little about how these processes of attitude change take place. Based on a three-wave national survey of ordinary Americans, we attempt to understand the influence of the Alito nomination/confirmation process on loyalty toward the Supreme Court. Our most important finding is that exposure to advertisements by interest groups for and against Alito's confirmation contributes to the erosion of support for the Court. These advertisements seem to encourage the belief that the Supreme Court is "just another political institution," which, in the political climate in the country, is not an accolade. Politicized confirmation processes therefore seem to have considerable capacity to undermine the legitimacy of the Supreme Court itself.

Domestic Courts and Global Governance

Abstract: Domestic court decisions often make headlines around the world. For example, recent U.S. Supreme Court decisions about the International Court of Justice and the rights of foreign detainees held by the United States at Guantanamo Bay have attracted international attention. However, the role of domestic courts in the world extends far beyond headlines. Seemingly routine decisions on issues such as personal jurisdiction, forum non conveniens, choice of law, extraterritoriality, and arbitration have implications for global governance. Legal scholarship divides these issues into doctrinal categories like civil procedure, conflict of laws, and international law. But by doing so, it misses the bigger picture: for better or worse, domestic courts are pervasively involved in regulating transnational activity. This Article cuts across doctrinal categories to provide the first systematic analysis of the global impact of domestic courts. It argues that domestic courts perform two global governance functions: they allocate governance authority, and they determine the rights and obligations of transnational actors. It shows that these functions matter not only for litigants, but also for global welfare. And it proposes a method for critically evaluating these functions that moves beyond traditional litigant-focused assessments to analysis of the cross-border effects of domestic court decisions. This method will allow scholars and policymakers to develop the empirical foundations needed for the intensifying debate over the proper role of domestic courts in addressing global challenges.

Doctrine Formulation and Distrust

Abstract: Legal scholars exhaustively debate the substantive wisdom of Supreme Court decisions and the appropriate methods for interpreting legal texts, but rarely consider the more pragmatic need to craft rules that will be faithfully implemented by the lower court judges who have the last word in the overwhelming majority of cases Political scientists, in contrast, invest tremendous effort seeking to determine whether lower courts "comply" with Supreme Court directives, but find themselves unable to explain why their own studies generally find high levels of compliance This Article argues that part of the answer lies in the Court's ability to craft legal doctrines that both shape a trial court's initial decision and increase the efficacy of appellate monitoring After identifying numerous strategies for increasing lower court control, this Article argues that appreciating the links between them helps illuminate recent developments in three areas of public law - the constitutional law of punitive damages; the rules governing "officer suits" brought under 42 USC § 1983; and the concept of "reasonable" searches and seizures under the Fourth Amendment

Avena and Sanchez-Llamas Come to Germany - The German Constitutional Court Upholds Rights under the Vienna Convention on Consular Relations

Abstract: Much attention has been given to a series of decisions by the US Supreme Court regarding the effects of the decisions of the International Court of Justice interpreting the Vienna Convention on Consular Relations On 19 September, 2006, the German Bundesverfassungsgericht (BVerfG - German Federal Constitutional Court), has made its first judgment on the issue The decision is significant for international law and even more specifically for US jurists: Its outcome differs significantly from the US Supreme Court decisions

The Roberts Court and the Chicago School of Antitrust: The 2006 Term and Beyond

Abstract: The U.S Supreme Court issued four antitrust decisions this term (the most it has issued since the 1989-1990 term) and seven cases over the past two years. The antitrust activity level of the Roberts Court thus far has exceeded the single case average of the Court prior to the 2003-2004 term by a significant margin. What can be said of the Roberts Court's antitrust jurisprudence? This article examines the quartet of Supreme Court decisions issued during the 2006-2007 term in an attempt to identify and characterize the antitrust philosophy of the Roberts Court. I argue that the Roberts Court decisions embrace the Chicago School of antitrust analysis and predict that the antitrust jurisprudence of this Court will increasingly reflect this influence.

The application of the Olmstead decision on housing and eldercare.

Abstract: This article reviews the Supreme Court's interpretation of Title II of the Americans with Disabilities Act (ADA) and discusses its application for the frail older person. The parallels and differences between the societal ideas about, and the development of, community-based housing programs for younger populations of people with disabilities and for aging populations will be examined. This article explains how frail older people may be included in the ADA's definition of persons with disabilities. It then explains the Supreme Court's interpretation of discrimination in Olmstead v. L.C. ex rel Zimring (1999). Lastly, it examines the implications of the Olmstead decision for long-term care as it relates to housing for older people.

The Roberts Court and the Chicago School of Antitrust: The 2006 Term and Beyond

Abstract: This article examines the quartet of Supreme Court decisions issued during the 2006-2007 Term in an attempt to identify and characterize the antitrust philosophy of the Roberts Court.

The Discretionary Function Exception to the Federal Tort Claims Act: A Proposal for a Workable Analysis

Abstract: I INTRODUCTION In 1946 Congress enacted the Federal Tort Claims Act (FTCA), which provides that the federal government can be held liable in tort "in the same manner and to the same extent as a private individual under like circumstances"1 In enacting the FTCA, Congress also provided thirteen exceptions to this baseline rule2 The most litigated,3 and one of the broadest4 of these statutory exceptions, is the discretionary function exception5 The Supreme Court created the current test for the applicability of the discretionary function exception in 1991 in United States v Gaubert6 The Gaubert Court's test created a "strong presumption" that the discretionary function exception applies where the governmental official has discretion to act and the action is "susceptible to policy analysis"7 Although the Gaubert presumption has remained the law for seventeen years, it has been consistently decried by commentators as applying the discretionary function exception too broadly and in effect swallowing the purpose of the FTCA8 Accordingly, various commentators have proffered a number of proposals on how to refine and narrow the application of the exception9 Similarly, several recent Ninth Circuit decisions reveal judicial attempts to chip away at the Gaubert "presumption" and thus narrow the exception's applicability10 This Comment will discuss and compare the Ninth Circuit's recent approach to the discretionary function exception with both a stricter application of the Supreme Court's test in Gaubert and alternatives advocated by commentators In so doing, this analysis will illustrate that in addition to applying the discretionary function exception too broadly, the Court's current approach under Gaubert also creates an undesirable incentive for governmental agencies to establish ineffective regulations in order to avoid FTCA liability Further, this Comment shows that neither the Ninth Circuit's approach nor proposed scholarly alternatives present solutions that are both workable for courts and able to remove the incentive for agencies to regulate ineffectively Identifying the problems created by both the Court's current approach and other alternative approaches, this Comment proposes a novel analytical approach based upon recognition of the incentives the discretionary function exception creates for agencies in drafting policies In applying this proposed "incentive recognition" approach, a court would undergo a two-step analysis First, the court would determine whether the discretionary decision was made through a legislative or administrative process If so, the exception applies; if not, the court would move to the second step to determine whether: (1) the official taking the action was affirmatively delegated the authority to use discretion in considering specific policy factors; (2) before taking the action, the official had received training such that she was aware of the policy factors she was to consider; and (3) at the time of the action, the official had access to information to make such a policy-based decision If the government can show that these three criteria are met under the second step, there is a rebuttable presumption that the discretionary function exception applies This proposed "incentive recognition" approach would narrow the scope of the discretionary function exception and avoid encouraging agency policymakers to enact inefficient policies and regulations to avoid liability exposure The result is a discretionary function analysis that is more attuned to Congress's purpose in enacting the discretionary function exception and the FTCA as a whole Part II provides an overview of the context surrounding the passage of the FTCA, Congress's intent in enacting the discretionary function exception, and the Supreme Court decisions dealing with the exception prior to Gaubert Part III provides a general overview of the Gaubert decision and reactions to Gaubert by scholarly commentators …

Harvard, Not Chicago: Which Antitrust School Drives Recent U.S. Supreme Court Decisions?

Abstract: The U.S. Supreme Court has now decided 14 antitrust cases in a row in favor of the defendant. But this does not indicate an embrace of the conservative Chicago School over the moderate Harvard School.

Arbitration and Arbitrability: Toward an Expectation Model

Abstract: The process of arbitration has been transformed by a series of Supreme Court decisions that have increased the enforceability of arbitration awards. Beyond that, the Supreme Court has also taken steps to ensure the enforceability of promises to arbitrate. These latter arbitrability issues raise questions as to who will decide whether an enforceable agreement to arbitrate has been made and what standard shall be applied in making that determination. This article explores the arbitrability question in the wide variety of settings in which it occurs, including post-contract disputes, successor parties, and the separability doctrine which focuses on challenges to the entire contract containing the arbitration provision. Also explored are the differing standards used to determine whether a substantive dispute is arbitrable on the merits and whether procedural preconditions to arbitration have been satisfied. This article identifies an expectation model as the premise upon which the Supreme Court's arbitrability principles have been based, and argues that it appropriately focuses on logical inferences of the parties' intent arising from their agreement as the basis for resolving arbitrability disputes. Reprinted with the permission of the Baylor Law Review.

Merck KGaA v. Integra Lifesciences I, Ltd: implications of the supreme court's decision for the people who matter most...the consumer.

Abstract: Sales of brand and generic pharmaceuticals in the United States reached 800 million. For every 10,000 compounds investigated, only five are ever tested as potential medicines in clinical trials and only one is ever approved for patient use. Of all the drugs approved by the FDA, only three out of ten generate revenues that meet or exceed average research and development costs.

Prisoners' Rights and the Rehnquist Court Era

Abstract: Supreme Court decisions affecting prisoners' rights assumed special importance during the Rehnquist Court era (1986 to 2005) because rapidly expanding prison populations placed more individuals' daily lives under the influence of corrections law. Substantive legal analysis reveals that the Rehnquist Court produced important decisions establishing new analytical tests that helped to guide lower court decisions and counteracted previous expansions of prisoners' rights. In particular, the Rehnquist Court's tests emphasized deference to corrections officials, significant proof thresholds for Eighth Amendment claims, and strict standing requirements for access-to-courts claims.

How Do You Solve a Problem Like in Kelo

Abstract: This article analyzes one of the most controversial recent U.S. Supreme Court decisions and demonstrates that the common perception of the Kelo case, that now the government can take any property under the 5th Amendment if they simply allege or show that the new use of the property will achieve a higher economic use, is a misreading of the majority and concurring opinions in Kelo. The article then argues that the Kelo decision is still very troubling for the dicta in the majority, concurring, and even Justice O'Connor's dissenting opinion, that judges should show extreme deference to a legislative judgment of public use and not to "second guess" legislative judgments. The article then reviews all of the cases cited to by the Court in Berman and Midkiff (the two key cases relied upon by the Court in Kelo) and demonstrates that none of them provide support for this extreme judicial deference in the context of a non-traditional taking. Consequently, the Court is in a very strong position to re-examine the continued applicability of this deferential approach in the context of non-traditional takings. Rather than interpret public use to exclude all such non-traditional exercises of eminent domain, this article suggests that an approach that better comports with the legitimate functions of the legislative and judicial branches is for courts to more closely scrutinize these takings to make sure that the alleged public benefits from the taking are real rather pretextual or highly speculative and to increase the level of review when the taking will lead to high uncompensated subjective values to home owners. The article concludes by developing three distinct categories of takings and specific appropriate levels of judicial review and legislative burdens for each category in order to restore the system of checks and balances between the legislative and judicial branches that are essential to the American Constitutional system.

The Costs of a “Free” Education: The Impact of Schaffer v. Weast and Arlington v. Murphy on Litigation under the IDEA

Abstract: The Individuals with Disabilities Education Act guarantees to children with disabilities the right to receive a "free appropriate public education." This Note argues that the Supreme Court decisions Schaffer v. Weast and Arlington v. Murphy, cases dealing with procedural aspects of the Act, undermine a prior trend in IDEA litigation a trend that had increased the substantive and procedural rights of children with disabilities. Considered together, the Schaffer and Arlington decisions ignore the realities of the litigation process and impose significant burdens on parents attempting to ensure that their children receive the free appropriate education to which they are entitled.

The Legal Entrenchment of Illegality

Abstract: This paper concerns systematic practices by public officials that are clearly unlawful, not hidden from view, and tolerated for many years. Such a “legal entrenchment of illegality” characterized America’s Jim Crow period, from the 1890s to the 1960s, especially in the former slave states, where the rape, assault and murder of African Americans, police brutality, procedural bias, and anti-black pogroms were tolerated or engaged in by officials. The related cynicism of officials is illustrated by a review of Supreme Court decisions that undermined the legal framework for the post-Civil War “reconstruction” of the former slave states. This paper also shows how the legal entrenchment of illegality required officials to embrace an incoherent and unstable set of attitudes towards law, which was incompatible with Hart’s legal theory as originally presented, but was compatible with its final form.

The Return of the Supreme Court to Patent Law

Abstract: This Article, composed from comments made at the Eighth Annual Sughrue Symposium University of Akron School of Law, explores the various Supreme Court decisions directly in or that relate or impact patent law. It also explores the then-pending cases. It concludes by noting the altered relationship between the Federal Circuit and the Supreme Court.

An empirical assessment of party capability theory in federal tax cases

Abstract: Party Capability Theory hypothesizes that parties with greater resources, usually “repeat players,” fare better in the judicial system and are better able to influence legal changes than “one shotters.” The theory also points out that “parties who have lawyers do better.” The theory has become most influential since its publication and has been tested by several studies. However, its importance has not been addressed in the accounting

Abortion : the Supreme Court decisions 1965-2007

Abstract: Updated to include the 2007 decision Gonzales v. Carhart, this volume provides all of the major Supreme Court decisions on abortion--as well as many majority, dissenting, and plurality opinions--carefully edited for use in undergraduate and graduate courses in a variety of disciplines. In his introductory essay, Shapiro sets these cases in political, historical, and philosophical context, and gives the reader a sense of what the main issues in the constitutional law of abortion are likely to be in the future.

Law's Enemies: Enemy Concepts in U.S. Supreme Court Decisions

Abstract: In a series of mid-20th century cases, the U.S. Supreme Court has modified and diversified the status of the enemy in U.S. law. We see a shift away from the statist egalitarian model toward a transnationalized model of enemies. U.S. Supreme Court decisions in three clusters of cases (German enemy aliens, the internment of the West Coast Japanese Americans, and Communist) from the 1940s and 1950s prefigure the radicalized post-9/11 “enemy combatant” status. The choice for such enemy conceptions is both a result of and a contribution to the changes in contemporary practices of violence.