Showing papers on "Supreme Court Decisions published in 2010"

The Limits of Judicial Independence

Abstract: This book investigates the causes and consequences of congressional attacks on the US Supreme Court, arguing that the extent of public support for judicial independence constitutes the practical limit of judicial independence. First, the book presents a historical overview of Court-curbing proposals in Congress. Then, building on interviews with Supreme Court justices, members of Congress, and judicial and legislative staffers, the book theorizes that congressional attacks are driven by public discontent with the Court. From this theoretical model, predictions are derived about the decision to engage in Court-curbing and judicial responsiveness to Court-curbing activity in Congress. The Limits of Judicial Independence draws on illustrative archival evidence, systematic analysis of an original dataset of Court-curbing proposals introduced in Congress from 1877 onward and judicial decisions.

Regional Autonomy and Legal Disorder: The Proliferation of Local Laws in Indonesia

Abstract: Under Indonesia’s decentralisation reforms authority was granted to two levels of regional government – provinces (propinsi) on the one hand, and districts (kabupaten) and cities (kota) on the other – to make their own policies and local laws. Many of the laws these new local authorities have passed have been criticised for being unclear, unnecessary, misdirected, exploitative of citizens and investors, or even unconstitutional. This article aims to describe and analyse the mechanisms under which these local laws can be reviewed and revoked, if deemed necessary. I show that the two currently-available mechanisms for review of local laws – bureaucratic review by the central government and judicial review by the national Supreme Court (Mahkamah Agung, or MA) – appear to be both deeply flawed. From an analysis of 500 bureaucratic review decisions, and 16 Supreme Court decisions, this study shows that, unless a local law seeks to impose a tax or user charge, it is highly unlikely to be reviewed. This is so even if its content breaches fundamental principles of law, including human rights, or has otherwise deleterious effects for citizens. This paper begins by discussing the legal infrastructure for decentralisation, focusing on the relative jurisdictions of the various levels of government, before turning to these bureaucratic and judicial review mechanisms. It concludes with observations about effects of this proliferation of local laws upon the Indonesian legal order.

Prolonged Armed Conflict and Diminished Deference to the Military: Lessons from Israel

Abstract: We examine whether the level of deference shown by the Israeli Supreme Court to Military decisions has changed over time, by analyzing empirically the entire body of Supreme Court decisions in petitions against the Military Commander between 1990 and 2005. Setting forth a number of different factors which might generally impact the degree of deference towards State agencies, we hypothesize that when applied to the context of the relationship between the Court and the Military Commander during the examined period, a decrease in deference is expected. Our findings show that deference to the Military Commander has indeed diminished significantly. We argue that this is best explained by the continuation of the armed conflict (and its aftermath, namely the increase and routinization of petitions by the civilian population), and also - to some extent - by the rise of a substantive rule-of-law legal consciousness, central to which is the importance of human rights.

Prolonged Armed Conflict and Diminished Deference to the Military: Lessons from Israel

Abstract: We examine whether the level of deference shown by the Israeli Supreme Court to military decisions has changed over time by empirically analyzing the entire body of Supreme Court decisions in petitions against the military commander between 1990 and 2005. Setting forth a number of different factors that might generally affect the degree of deference to state agencies, we hypothesized that there would be a decrease in deference in the relationship between the Court and the military commander during the examined period. Our findings show that deference to the military commander has indeed diminished significantly. We argue that this is best explained by the continuation of the armed conflict (and its aftermath, namely, the routinization and increase in the number of petitions by the civilian population) and also—to some extent—by the rise of a substantive rule-of-law legal consciousness, central to which is the importance of human rights. lsi_1209 919..956

"In a Race All Their Own": The Quest to Make Mexicans Ineligible for U.S. Citizenship

Abstract: This article traces challenges to Mexicans9 legal and racial status by various groups, including federal bureaucrats, nativist organizations, and everyday citizens. Early twentieth-century efforts to make Mexicans ineligible for U.S. citizenship, despite provisions in the Treaty of Guadalupe-Hidalgo, focused on the premise that Mexicans were neither "black" nor "white"; interest groups and politicians both strove instead to categorize Mexicans as "Indian." These efforts intensified after the 1924 Immigration Act and two Supreme Court decisions, Ozawa v. United States (1922) and United States v. Bhagat Singh Thind (1923), which declared Japanese and Asian Indians ineligible for citizenship because they were not white. Underlying U.S. efforts to resolve Mexican immigration and citizenship issues was the ongoing problem of determining who could be considered white; this concern clashed with positive Mexican understandings of mestizaje.

Sexual Injustice: Supreme Court Decisions from Griswold to Roe

Abstract: Focusing on six major Supreme Court cases during the 1960s and 1970s, Marc Stein examines the generally liberal rulings on birth control, abortion, interracial marriage, and obscenity in "Griswold," "Eisenstadt," "Roe," "Loving," and "Fanny Hill" alongside a profoundly conservative ruling on homosexuality in "Boutilier." In the same era in which the Court recognized special marital, reproductive, and heterosexual rights and privileges, it also upheld an immigration statute that classified homosexuals as "psychopathic personalities." Stein shows how a diverse set of influential journalists, judges, and scholars translated the Court's language about marital and reproductive rights into bold statements about sexual freedom and equality.

Unequal Protection : How Corporations Became People - and How You Can Fight Back

Abstract: By America's most popular progressive radio host - Updated throughout, including analysis of recent critical Supreme Court decisions - Reveals how corporations achieved their current near-imperial status and what we can do to change it Unequal taxes, unequal accountability for crime, unequal influence, unequal control of the media, unequal access to natural resources -- corporations have gained these privileges and more by exploiting their legal status as persons and by winning special protections that enable them to avoid the responsibilities that come with these rights. How did something so illogical and unjust become the law of the land? Is there a way for American citizens to recover democracy of, by, and for the people? Thom Hartmann takes on these difficult questions and tells a startling story that will forever change your understanding of American history. Americans have been struggling with the role of corporations since before the birth of the republic. Hartmann uncovers evidence that the Boston Tea Party was actually a protest against actions of the East India Company the world's first modern corporation making it the great-great-granddaddy of today's World Trade Organization protests. But eventually the corporations won. Hartmann tells the astonishing story of how an offhand comment by a Supreme Court justice led to the Fourteenth Amendment -- originally passed to grant basic rights to freed slaves -- becoming the justification for changing the status of corporations from "artificial persons" with limited rights to persons entitled to the same rights granted to human beings. Unequal Protection details the deeply destructive results. Corporations now enjoy extraordinary priveleges that make them virtually independent kingdoms. This new feudalism is not what our founders intended. Hartmann proposes specific legal remedies that could truly save the world from political, economic, and ecological disaster. It's time for "we, the people" to take back our lives. With huge corporations now benefiting from massive taxpayer-funded bailouts, Hartmann's hard-hitting critique of corporate personhood is more timely than ever. This new edition has been thoroughly updated and features Hartmann's analysis of two recent critical Supreme Court corporate speech cases.

O Benefício de Prestação Continuada no Supremo Tribunal Federal

Abstract: This paper analyses decisions of the Brazilian Supreme Court regarding the Beneficio de Prestacao Continuada (BPC, Continuous Cash Benefit), a regular income transfer to the elderly and persons with disability not capable of working or living an independent life whose family per capita income is lower than a quarter of the minimum wage. The litigation of social policies before the Brazilian Supreme Court is a growing phenomena and the case of BPC is paradigmatic. The paper examines the budgetary arguments prevailing in recent Supreme Court decisions, and challenges the appropriateness of the income eligibility threshold set by the Lei Organica da Assistencia Social (Social Assistance Act). In addition, the paper evaluates the fiscal impact of raising the threshold to half minimum wage. The main conclusion of the study is that an increase in the threshold would be followed by an increase in the number of beneficiaries but, due to the existing targeting errors, the raise in costs would be lower than the growth of the eligible population.

Can the states nullify health care reform

Abstract: On February 1, Virginia joined numerous other states with pending legislation aimed at limiting, changing, or opposing national health care reforms. Timothy Jost asks, What is going on here?

The case of Samuel Golubchuk: the dangers of judicial deference and medical self-regulation.

Abstract: Jotkowitz and colleagues (AM. J. BIOETHICS, 2010) claim that the College of Physicians and Surgeons of Manitoba Guidelines 'represent a retreat from autonomy towards old fashioned paternalism.' This is descriptively false. Autonomy has developed solely as a negative right to be free from unwanted treatment. It has almost never been formally construed to give patients a positive right to demand nonindicated treatment. These guidelines are a clarification of the scope of autonomy, rather than any retreat from some positive rights that were previously recognized. Autonomy has long been and remains a very weighty principle – but it does not automatically trump other principles.Still, Jotkowitz and colleagues are correct that the Golubchuk case is special because of the religious nature of the request for life-sustaining medical treatment. While even Jotkowitz and colleagues concede that such requests can be (and should be) overridden in some circumstances, they rightly argue that such unilateral action must be carefully circumscribed. Provider arguments for overriding must be more compelling in futility disputes where the treatment request is religiously motivated.

The Pleading Problem

Abstract: Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This Article provides that theory. It develops a new paradigm -- plain pleading -- as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference.This approach is able to reconcile Twombly and Iqbal with pre-Twombly authority. Indeed, a careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading. First, Twombly and Iqbal did not overrule the most significant pre-Twombly authorities. The only aspect of prior case law that these decisions set aside was a misunderstood fifty-year-old phrase whose real meaning was never called into question. Furthermore, Iqbal's two-step analysis confirms that the problematic plausibility standard employed in Twombly and Iqbal is neither the primary inquiry at the pleadings phase nor a necessary one. The threshold issue is whether a crucial allegation in a complaint may be disregarded as "conclusory"; only then does the "plausibility" of an entitlement to relief become dispositive. While there remains some uncertainty about what conclusory means, authoritative pre-Twombly sources -- the Federal Rules, their Forms, and Supreme Court decisions that remain good law -- foreclose any definition that would give courts drastic new powers to disregard allegations at the pleadings phase.

The Miranda Ruling: Its Past, Present, and Future

Abstract: Series Foreword Preface Acknowledgments Chapter 1: The Public Image of Miranda and Why It is Incomplete Chapter 2: What Led Up to the Miranda Decision Chapter 3: The Decision in Miranda v. Arizona Chapter 4: Limitations of the Original Decision Chapter 5: Problems in the Comprehension of the Miranda Rights Chapter 6: More Recent Supreme Court Decisions that Erode Miranda Rights Chapter 7: Police Reactions to the Miranda Requirements Chapter 8: The Future of the Miranda Ruling References

First Amendment Limits on Library Collection Management

Abstract: First Amendment freedoms impose some limits on publicly funded libraries’ discretion to manage their collections, but identifying those limits is difficult. The First Amendment law of libraries is murky territory, defined by three Supreme Court decisions that failed to produce majority opinions and lower court opinions that have employed a variety of doctrinal approaches. Libraries nonetheless must make sense of these cases to create and implement collection development and Internet access policies and procedures. This article surveys and analyzes the First Amendment law of library collections and finds that libraries’ discretion is broad, but certain limitations apply. These can serve as a reminder to librarians of their ethical commitment to challenge censorship and provide access to all points of view.

Does the Attitudinal Model Explain Unanimous Reversals

Abstract: There is little doubt that the political attitudes of the justices on the Supreme Court have a significant impact on many outcomes adopted by the Court. But a third or more of Supreme Court decisions are unanimous, and in more than a fifth of their cases every year the Supreme Court unanimously reverses the decision below. The Attitudinal Model suggests that the reason for unanimity is that the political policy made by the court below is “extreme” when compared to the ideological range of the entire Supreme Court. We test the basic claim of the most prominent proponents of the Attitudinal Model that the political preferences of the justices provide a complete explanation for all of their decisions, including those decided unanimously. We find that none of the predictions of the Attitudinal Model are supported. Thus, while the ideology of the justices may drive many of their decisions, the Attitudinal Model does not provide an adequate explanation for unanimous decisions.

Chemically contaminated casualties: different problems and possible solutions.

Abstract: Novel H1N1 influenza virus infected more than 43,000 people, killed 353 and spread to more than 122 countries within a few months. The World Health Organization declared a stage 6 worldwide pandemic. Healthcare workers and hospitals prepared for the worst. Federal and State regulations provided the legal framework to allow for the preparation and planning for a pandemic. One State had mandated both seasonal and Novel H1N1 vaccination of all healthcare workers in an effort to reduce transmission of influenza in healthcare facilities. The US Supreme Court decided in 1905 that the police power of the State permitted a State Department of Health the leeway to mandate vaccination in the face of a contagious disease. Law suits were filed, and a temporary injunction barring mandatory vaccination was entered by the court. While awaiting a court hearing, the mandatory vaccination regulation was rescinded because of the shortage of both seasonal and H1N1 vaccine. Based on the current state of the pandemic and the shortage of vaccination, it is possible that the US Supreme Court would uphold mandatory vaccination in a pandemic.

Desegregation, Academic Achievement and Earnings

Abstract: In 1896, the US Supreme Court decision Plessey v. Ferguson deemed that the establishment of separate school systems for whites and blacks did not violate the absolute equality of the two races before the law. Thus, the doctrine of separate but equal prevailed in the provision of public elementary, secondary, and tertiary education in southern states until 13 parents brought a class-action suit against the segregated Topeka, Kansas school district. The landmark decision Brown v. Topeka Board of Education (1954) ruled separate but equal unconstitutional in the case of education, outlawing de jure segregation. Yet, it took a number of years and additional court cases to compel districts to integrate schools and actually dismantle the dual system. Recent Supreme Court decisions do raise the possibility of resegregation going forward, as they narrow the circumstances in which race can be considered in enrolment decisions. In combination with the increasing popularity of various forms of school choice, the changing legal environment will likely erode some of the desegregation gains achieved over the past half century. This article attempts to summarize what we know about the impact of Brown on academic and economic outcomes for blacks. The first section briefly describes the legal history that established the environment governing the allocation of students among schools and the main types of plans used to desegregate schools. The next section documents changes over time in school-enrolment patterns, focusing both on the ways in which districts allocate students among schools and the distribution of students among districts. The penultimate section discusses evidence of desegregation-program effects on white enrolment and the final section discusses the evidence of the effects of school desegregation and racial composition on academic and economic outcomes.

Uninhibited, Robust, and Wide-Open: A Free Press for a New Century

Abstract: * Uninhibited, Robust, and Wide-Open: A Free Press for a New Century. Lee C. Bollinger. New York, NY: Oxford University Press, 2010. 210 pp. $21.95 hbk. Many journalism and mass communication educators should know Columbia University President Lee Bollinger. As a leading First Amendment scholar, he has challenged the conventional wisdom on free speech in the United States since the mid-1970s. Bollinger's new book, Uninhibited, Robust, and Wide-Open, is a notable contribution to the literature on freedom of the press. It most likely will inform the debates about the American experience with a libertarian press as a global reference in the twenty-first century. The central focus of the book is how to "project a U.S. free press system onto the world." The book's conceptual framework is that no one should separate freedom of the press in the United States from freedom of the press abroad. Bollinger is not the first to examine freedom of speech and the press from a global First Amendment perspective. This book, however, stands out in that it analyzes as its theme, not as an afterthought, why the world needs a First Amendment and how the United States helps establish a right to a free press globally. Bollinger starts with a concise overview of the First Amendment law. His "three-pillar" discussions of key Supreme Court decisions are authoritative. Few will quibble about his first-pillar conclusion: The American press has been far more protected against prior censorship than any other press system. Not surprisingly, Bollinger discusses the landmark First Amendment case of 1964, New York Times v. Sullivan, at length. Indeed, the book's main title, "Uninhibited, Robust, and Wide-Open," is taken from the Sullivan decision. In articulating the First Amendment's "central meaning," Supreme Court Associate Justice William Brennan pointed out "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open." The second pillar of American press freedom is a counterpoise to the press's anti-censorship right. The First Amendment recognizes virtually no newsgathering right for the press, except to report criminal trials. Regardless, the Supreme Court's obdurate refusal to read access to information into the First Amendment is distinguished from the European Court of Human Rights and the Inter-American Court of Human Rights on freedom of information (FOI). Moreover, the First Amendment does not grant news reporters a right to protect their sources. By contrast, the so-called journalist's privilege is increasingly accepted abroad as freedom of the press. The government's power over the press to improve the press constitutes the third pillar of the Supreme Court. Bollinger rejects the scarcity rationale for discriminating the broadcasting media against the print media. Yet he posits that the broadcasting media can be regulated differently. He finds no compelling need under the First Amendment for "a single, unified system of a free press." Bollinger's book contains a wealth of information about American and international news media and journalistic practices. …

Cree Autonomy: a re-examination of domestic dependence

Abstract: First Nations’ status definitions construed by the Indian Act of 1888 in Canada bring to mind U.S. Supreme Court decisions stating that tribal nations were considered domestic dependents or wards of the Federal Government. The Cree of Northern Quebec have challenged these paternalistic definitions through their litigation of the James Bay Hydro-electric Project. I offer in this paper that the Cree independently define their status of nationhood as an act of resistance against colonialism engendered in part through their relationship with the Hudson’s Bay Company and their relationship with the land. Retention of their commitment to their existing relationship with the land has informed the Cree Nation’s decisions regarding their autonomy while interacting with Governments intent upon dichotomizing human and other-than-human interactions.

Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court

Abstract: "Merely Judgment" uses affirmative action in government contracting, legislative vetoes, flag burning, hate speech, and school prayer as windows for understanding how Supreme Court decisions send signals regarding the Court's policy preferences to institutions and actors (such as lower courts, legislatures, executive branches, and interest groups), and then traces the responses of these same institutions and actors to Court decisions. The lower courts nearly always abide by Supreme Court precedent, but, to a surprising degree, elected branches and other institutions avoid complying with Supreme Court decisions. To explain the persistence of unconstitutional policies and legislation, Sweet isolates the ability of institutions to derail the litigation process. Merely Judgment explores the mechanisms by which litigants and their peers have escaped from the clutches of litigation and thus effectively ignored, evaded, and trumped the Supreme Court.

Reply: The Will of the People and the Process of Constitutional Change

Abstract: This is a Reply for a symposium by the George Washington Law Review regarding The Will of the People: How Public Opinion Influences the Supreme Court and Shapes the Meaning of the Constitution. It takes up the question of constitutional change, clarifying what we know about the process and raising questions about what we don’t know. Constitutional change is a relentless process in which social movements play a large role, and much is motivated by the backlash to Supreme Court decisions. Change can be both ordinary and small, or take place in dramatic steps. Even improbable meanings of the constitutional text become law when accepted by large portions of the body politic.

Essential Supreme Court Decisions: Summaries of Leading Cases in U.S. Constitutional Law

Abstract: Revised and now in its 16th edition, Essential Supreme Court Decisions: Summaries of Leading Cases in U.S. Constitutional Law is the most up-to-date and historically thorough guide to the American Supreme Court's most monumental rulings available today. The Supreme Court grapples every day with issues fundamental to our democracy - from religious expression to freedom of speech to cruel and unusual punishment rulings. Terrorism, profiling, same-sex marriage, police stop-and-search statutes, voting rights and our personal right to privacy, and recent landmark rulings regarding all of these issues are analyzed in this edition, showing us the modern iterations of debates that have raged in some shape or form in America throughout its history.

Harvard University's 359th Commencement Address

Abstract: When I was younger I used to hear Harvard stories from a member of the class of 1885. Back then, old graduates of the College who could get to Cambridge on Commencement Day didn't wait for reunion years to come back to the Yard. They'd just turn up, see old friends, look over the new crop, and have a cup of Commencement punch under the elms. The old man remembered one of those summer days when he was heading for the Square after lunch and crossed paths with a newly graduated senior, who had enjoyed quite a few cups of that punch. As the two men approached each other the younger one thrust out his new diploma and shouted, "Educated, by God." Even with an honorary Harvard doctorate in my hands I know enough not to shout that across the Yard, but the University's generosity does make me bold enough to say that over the course of nineteen years on the Supreme Court, I learned some lessons about the Constitution of the United States, and about what judges do when they apply it in deciding cases with constitutional issues. I'm going to draw on that experience in the course of the next few minutes, for it is as a judge that I have been given the honor to speak before you. The occasion for our coming together like this aligns with the approach of two separate events on the judicial side of the national public life: the end of the Supreme Court's Term, with its quickened pace of decisions, and a confirmation proceeding for the latest nominee to fill a seat on the Court. We will as a consequence be hearing and discussing a particular sort of criticism that is frequently aimed at the more controversial Supreme Court decisions: criticism that the Court is making up the law, that the Court is announcing constitutional rules that cannot be found in the Constitution, and that the Court is engaging in activism to extend civil liberties. A good many of us, I'm sure a good many of us here, intuitively react that this sort of commentary tends to miss the mark. But we don't often pause to consider in any detail the conceptions of the Constitution and of constitutional judging that underlie the critical rhetoric, or to compare them with the notions that lie behind our own intuitive responses. I'm going to try to make some of those comparisons this afternoon. The charges of lawmaking and constitutional novelty seem to be based on an impression of the Constitution and on a template for deciding constitutional claims that go together something like this. A claim is made in court that the government is entitled to exercise a power, or an individual is entitled to claim the benefit of a right, that is set out in the terms of some particular provision of the Constitution. The claimant quotes the provision and provides evidence of facts that are said to prove the entitlement that is claimed. The facts on their face either do or do not support the claim. If they do, the court gives judgment for the claimant; if they don't, judgment goes to the party contesting the claim. On this view, deciding constitutional cases should be a straightforward exercise of reading fairly and viewing facts objectively. There are, of course, constitutional claims that would be decided just about the way this fair reading model would have it. If one of today's twenty-year-old college graduates claimed a place on the ballot for one of the United States Senate seats open this year, the claim could be disposed of simply by showing the person's age, quoting the constitutional provision that a Senator must be at least thirty years old, and interpreting that requirement to forbid access to the ballot to someone who could not qualify to serve if elected. No one would be apt to claim that lawmaking was going on, or object that the age requirement did not say anything about ballot access. The fair reading model would describe pretty much what happened. But cases like this do not usually come to court, or at least the Supreme Court, and for the ones that do get there, for the cases that tend to raise the national blood pressure, the fair reading model has only a tenuous connection to reality. …

The Legacy of the Magna Carta in Recent Supreme Court Decisions on Detainees' Rights

Abstract: The legacy of the Magna Carta is apparent in the Supreme Court's recent decisions regarding detainees' rights. Asked to evaluate strong claims of executive power, the Court has had occasion to consider the origin and scope of habeas corpus, which many scholars see as a product of the Magna Carta. The majority opinion in Boumediene v. Bush (2008) traced the history of the writ of habeas corpus back to the Magna Carta and relied on that lineage to rule that Guantanamo detainees were entitled to petition for habeas corpus, even though Congress had explicitly denied them that right in the 2006 Military Commissions Act (MCA) and the 2005 Detainee Treatment Act (DTA).

An Overview of Recent U.S. Supreme Court Jurisprudence in Patent Law

Abstract: This report provides a brief summary of the Supreme Court's patent law jurisprudence in the following nine cases that have been decided since 2005: Merck KGaA v. Integra Lifesciences I, Unitherm Food Systems v. Swift-Eckrich, Illinois Tool Works v. Independent Ink, eBay v. MercExchange, Laboratory Corporation of America Holdings v. Metabolite Labs., MedImmune v. Genentech, KSR International Co. v. Teleflex Inc., Microsoft v. AT&T, Quanta Computer, Inc. v. LG Electronics, Inc., and Bilski v. Kappos.

Assessing the Effect of Catholic Justices on Supreme Court Decisions

Abstract: If judicial behavior is structured largely by the policy preferences of judges, political scientists ought to consider the source of those preferences. Religion is one force that can strongly shape a judge's worldview and therefore her votes. I examine the effect of religion on U.S. Supreme Court votes in 11 issue areas connected to religious values. Catholic justices vote in ways that more closely adhere to the teachings of the Catholic Church than non-Catholic justices even after controlling for ideology. These results may indicate that Catholic theology is different from Protestant or Jewish theology. It is also possible that on some issues there is not much of a theological difference, but religious values play a more prominent role in public life for Catholic justices.

Abortion and moral arguments from analogy.

Abstract: Manninen (2010) argues that abortion is morally permissible, indeed that women have a moral right to abortion or, at least, basic moral rights that entail the permissibility of abortion. She hopes ...

Los Elefantes Rosas en las Cúpulas en la Legislatura: An Empirical Analysis of the Texas Education Finance Mechanism with Special Emphasis on Bilingual Education

Abstract: The State of Texas’ education finance mechanism – known as the Foundation School Program (FSP) was challenged in a series of litigation known as Edgewood v. Kirby I - IV and West Orange Cove I- II. Though the state Supreme Court’s holding ultimately moved the Texas Assembly to make changes in the funding mechanism, not since the 1980s has there been a systematic evaluation of the fiscal efficacy of the State of Texas’ FSP. Therefore, the purpose of this article is to examine empirically levels of vertical and horizontal finance equity generated by Texas’ education finance system. Information will be presented in five sections that describe and discuss: (a) summations of the Texas Supreme Court decisions on K-12 education finance since 1989; (b) analyses of initial statistical results generated from efficacy analyses of the Texas Foundation School Program; and, (c) policy recommendations guided by the results.

How Free Can Religion Be

Abstract: Randall P Bezanson's "How Free Can Religion Be?" explores the Supreme Court's varied history of interpreting the religious guarantees outlined in the First Amendment The book discusses eight provocative Supreme Court decisions to track the evolution of Free Exercise and Establishment Clause doctrine, focusing on the court's shift from strict separation of church and state to a position where the government accommodates and even fosters religion Understanding the First Amendment as a complex stew of untested political theory, fear of unlimited central government, universal acceptance of Christianity, uncertain ideas about liberty, and the backbone of a secular democracy, Bezanson evaluates the way that the Supreme Court has invoked historical perspectives to follow the shifting threads of judicial theory through a series of detailed case studies Beginning with cases in the latter half of the nineteenth century, the cases present new problems and revisit some old ones as well: the Mormon Church's claimed belief in polygamy; state support for religious schools; the teaching of evolution and creationism in public schools; Amish claims for exemption from compulsory education laws; comparable claims for Native American religion in relation to drug laws; and rights of free speech and equal access by religious groups in colleges and public schools Historical but not a work of history, "How Free Can Religion Be?" invites readers into a rewarding examination of the contested and ever-changing role and meaning of religion in America Rather than aiming at conclusions about whether the Court's varied enforcement of the First Amendment's ambiguously worded guarantees is right or wrong, Bezanson instead works to identify the principles underlying the changes Using transcripts of oral arguments before the Supreme Court accompanied by his own editorial narration, he engages the reader in a revealing Socratic discussion of the issues and encourages them to draw their own conclusions

The McCain v. Obama Simulation: A Fair Tribunal for Disputed Presidential Elections

Abstract: In October 2008, Election Law @ Moritz (together with other co-sponsoring institutions) conducted an experiment to test the idea whether a specially designed court could achieve a greater appearance of impartiality in deciding a disputed presidential election than the kind of general-jurisdiction supreme courts, both state and federal, that adjudicated Bush v. Gore. This essay describes the genesis of this experiment and its results. The basis for the experiment was a hypothetical case raising equivalent issues to Bush v. Gore, involving both Equal Protection and the power of state legislatures to appoint presidential electors under Article Two of the Constitution, with these issues set in the context of a dispute over provisional ballots cast in Colorado on the assumption that this state (rather than Florida) determined the outcome of the 2008 presidential election. To test the hypothesis of the experiment, a specially designed tribunal was created to adjudicate this hypothetical dispute: two highly-regarded retired jurists from opposite political background (one Democrat and one Republican) were chosen and asked to select a third, neutral judge. These three judges then received briefs and heard oral arguments from two leading Supreme Court practitioners. The judges issued their decision, which turned out to be unanimous. The essay describes the reasoning of their opinion and discusses whether its unanimity can be regarded as successful outcome of the experiment, having a greater appearance of impartiality that the sharply divided supreme court decisions (both state and federal) in Bush v. Gore.