Showing papers on "Supreme Court Decisions published in 2017"

A General Approach for Predicting the Behavior of the Supreme Court of the United States

Abstract: Building on developments in machine learning and prior work in the science of judicial prediction, we construct a model designed to predict the behavior of the Supreme Court of the United States in a generalized, out-of-sample context. To do so, we develop a time-evolving random forest classifier that leverages unique feature engineering to predict more than 240,000 justice votes and 28,000 cases outcomes over nearly two centuries (1816-2015). Using only data available prior to decision, our model outperforms null (baseline) models at both the justice and case level under both parametric and non-parametric tests. Over nearly two centuries, we achieve 70.2% accuracy at the case outcome level and 71.9% at the justice vote level. More recently, over the past century, we outperform an in-sample optimized null model by nearly 5%. Our performance is consistent with, and improves on the general level of prediction demonstrated by prior work; however, our model is distinctive because it can be applied out-of-sample to the entire past and future of the Court, not a single term. Our results represent an important advance for the science of quantitative legal prediction and portend a range of other potential applications.

The psychology of defendant plea decision making.

Abstract: Every day, thousands of defendants, prosecutors, and defense attorneys must make guilty plea decisions, such as whether to accept a plea offer or proceed to trial. Most defendants opt to plead guilty; approximately 95% of state and federal convictions result from guilty pleas. In light of a newly emerging body of research and recent Supreme Court decisions on guilty pleas, this article asks and answers 2 questions: First, who pleads guilty and why? We describe the characteristics of those who are more or less likely to plead guilty, and examine the reasons why individuals plead guilty instead of proceeding to trial, exploring the cognitive, social influence, and developmental factors that underlie decision making. Second, are defendants' plea decisions valid, in that the decisions are made knowingly, intelligently, voluntarily, and with a factual basis of guilt? That is, do defendants who plead guilty understand and appreciate the conditions and consequences of their pleas, as required by law? Are innocent people induced to plead guilty to crimes they did not commit? We conclude with suggestions to move the field of plea research forward. (PsycINFO Database Record

Who reads patents

Abstract: Biotechnology and chemistry researchers look to the patent literature as a source of technical information more than researchers in other fields, and few researchers are deterred from reading patents by concerns about enhanced legal liability.

How Expected Political and Legal Impact Drive Media Coverage of Supreme Court Cases

Abstract: Media coverage of Supreme Court decisions is not well-understood, with studies typically focusing on features of decisions such as issue area and opinion authorship, and ignoring the political and legal importance of those decisions. Because the Court is both secretive and esoteric, and because it does not engage in traditional public relations activities, media must proxy importance by looking to available cues, such as interest group participation. Importantly, some indicators of importance are available before a decision is rendered; thus I examine both pre- and post-decision media coverage of cases. I show that expected legal and political impact drive media coverage of Court decisions, and that the decision-level features that prior studies have focused on are much less important in determining coverage than has been previously thought.

Opportunity and Overrides: The Effect of Institutional Public Support on Congressional Overrides of Supreme Court Decisions:

Abstract: Existing theories of legislative-judicial relations emphasize the role of public support for the judiciary on the likelihood of legislative compliance Although Congress can strengthen or weaken the Supreme Court’s decisions after initial compliance, the role of public support for the judiciary on subsequent legislative action is unclear We develop a theory of legislative-judicial interactions, which suggests that Congress considers the court’s current level of public support when determining whether to override a Supreme Court decision We test our theory using data on congressional overrides of US Supreme Court decisions, finding that high levels of public support for the court shield the court from hostile congressional action The results underscore the vital role played by the public in interbranch relations, suggesting that public support plays a role in the legacy of a judicial decision beyond ensuring initial compliance

The State of American Federalism 2016–2017: Policy Reversals and Partisan Perspectives on Intergovernmental Relations

Abstract: Unified Republican Party control of the federal government after the 2016 election brought a reversal of several Obama administration policies, especially those adopted via executive and administrative action in areas such as immigration, energy, the environment, and LGBT rights. The 2016 election also prompted a reversal of partisan perspectives with respect to federal-state relations, as Republicans in Washington moved to preempt state discretion in various areas, whereas Democrats in state capitols challenged the legality of presidential actions and resisted federal efforts to constrain state and local discretion. In this essay, we discuss these themes through an analysis of developments in 2016 and early 2017 regarding health care, immigration, education, marijuana, and energy and environmental policy. We also consider key U.S. Supreme Court decisions affecting the contours of state policymaking.

Disability and Community Living Policies

Abstract: This book provides a comprehensive analysis of the roots of institutionalization, deinstitutionalization legislation and policies of the twentieth century, and twenty-first-century efforts to promote community living policies domestically and internationally, particularly through the role of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD), a landmark treaty adopted on 13 December 2006. Rimmerman shows that deinstitutionalization and community living cannot be examined only in terms of the number of institutions closed but also through the substantial change in values, legislation, and policies supporting personalization, as well as the social participation of people with disabilities. The book includes a significant exploration of United States legislation and important Supreme Court decisions compared with European policies toward community living. Finally it discusses the importance of Articles 12 and 19 of the convention and demonstrates the case of Israel that has used the convention as a road map for proposing a new community living policy.

The Charlie Gard case: British and American approaches to court resolution of disputes over medical decisions

Abstract: The Charlie Gard case: British and American approaches to court resolution of disputes over medical decisions

The Supreme Court and the Judicial Genre

Abstract: This paper exploits a relatively new approach to quantitative text analysis — topic modeling — to examine the subject matter of Supreme Court decisions, and in particular to analyze how the semantic content produced by the Court differs from the published decisions of the U.S. Appellate Courts. To conduct this analysis, we fit a topic model to the joint corpus of decisions (Supreme Court plus Appellate Court). The topic model enables a quantitative measurement of differences in semantic content between three corpora: the Supreme Court decisions, the Appellate Court decisions, and Appellate Court cases selected for review. We develop new methods to estimate these differences over time. We reach two findings. First, the Supreme Court has become substantially more semantically idiosyncratic in recent decades, as measured by the use of the topic distribution within a decision as a predictor of the authoring court. We then examine potential causes of this trend, isolating the use of the Court’s case selection power. We find that the topic model based measure of semantic difference between the cases selected for review by the Court does not appear to be increasing over time, indicating instead that the Court has become more distinctive in how it discusses a similarly distinct pool of cases. Normative implications and avenues for future research are discussed. This work demonstrates the utility of topic modeling as a valuable supplement to and/or replacement of hand-coded labels in the study of hierarchically arranged judiciaries. While this case study focuses on the U. S. Courts, extensions and broadening to other national and international judicial corpora can be readily accomplished. More generally, this work opens the door for broader application of topic models within empirical legal studies and related disciplines to study the rich textual corpora generated by legal institutions.

Finding the Topics of Case Law: Latent Dirichlet Allocation on Supreme Court Decisions

Abstract: The law produces a large amount case law, which is still mostly processed by hand. The Case Law Analytics project aims to develop a technology that assists the legal community in analyzing case law. As a part of this project, this thesis explores the possibilities of finding accurate and useful legal topics with LDA and whether or not legal experts and people with a non-legal background agree in their judgments about this. To this end I investigated possible methods suited for evaluation of the model’s results. I evaluated the topics as well as their assignment to the documents using human evaluation. I found that the topics evaluated to cohere most, are easy to label. Human subjects were also mostly able to differentiate between topics assigned to a document with high probability and topics that do not belong to this document. However less than half the topics were evaluated as coherent by the subjects and according to the subjects the main topic of a document was not found by the model for most of the documents. I also found that domain experts and non domain experts might evaluate topics differently. I argue that the usability of the results depends on the intended application and and introduce some complications specific to the legal domain, which should be taken into account as well.

The War on Kids: How American Juvenile Justice Lost Its Way

Abstract: In 2003, when he was sixteen, Terrence Graham and three other teens attempted to rob a barbeque restaurant in Jacksonville, Florida Though they left with no money, and no one was seriously injured, Terrence was sentenced to die in prison for his involvement in that crime As shocking as Terrence’s sentence sounds, it is merely a symptom of contemporary American juvenile justice practices Today in this country, adolescents are routinely transferred out of juvenile court and into adult criminal court without any judicial oversight Once in adult court, children can be sentenced without regard for their youth Juveniles are housed in adult correctional facilities; they may be held in solitary confinement; and they experience the highest rates of sexual and physical assault among inmates Until 2005, children convicted in America’s courts were subject to the death penalty; today, they still may be sentenced to die in prison – no matter what efforts they make to rehabilitate themselves America has waged a war on kids The War On Kids reveals how the United States went from being a pioneer to an international pariah in its juvenile sentencing practices While academics and journalists have recognized the failings of juvenile justice practices in this country and have called for change, recent Supreme Court decisions and political developments make those calls a reality today The War On Kids seizes upon this moment of judicial and political recognition that children are different in the eyes of the law The book chronicles the shortcomings of juvenile justice by drawing upon social science, legal decisions and first-hand correspondence with Terrence and others like him – individuals whose adolescent errors have cost them their lives At the same time, The War On Kids maps out concrete steps that states can take to correct the course of American juvenile justice

Triaging the Law: Developing the Common Law on the Supreme Court of India

Abstract: Legal precedent serves as the foundation of the common law. Judges provide their reasoning through precedent, citing cases to support their conclusion while distinguishing between cases cited by that counsel in favor of an opposing result. Legal precedent also provides the mechanism by which judges communicate with one another, at the same time providing guidance to prospective litigants and the practicing bar. This process is particularly important for supreme courts, whose decisions bind all lower courts within their jurisdiction. For this reason, in most common‐law jurisdictions, the supreme court decides relatively few cases but draws heavily on precedent for the opinions it issues. The Supreme Court in India stands in contrast to its counterparts in countries such as the United States and Canada in that it decides thousands, rather than tens, of cases. Examining the universe of Court decisions from 1950–2010, we find that the Court elects not to cite precedent in nearly half its opinions. In turn, these opinions without citation to precedent are rarely subsequently cited. However, there is a second set of decisions that is more analogous to U.S. Supreme Court decisions. These decisions do cite prior decisions and are cited by later cases. Opinions that do cite precedent gravitate to older opinions, whose salience often endures for decades. These findings suggest the Court is constrained in its ability to process a heavy caseload, and makes strategic decisions as to which opinions to emphasize through its use of precedent.

After the Override: An Empirical Analysis of Shadow Precedent

Abstract: The ability of Congress to override judicial interpretations of statutory language is central to legislative supremacy. Both political science and legal scholarship assume, often implicitly, that enactment of a legislative override will effectively replace the pre-existing precedent, akin to a judicial overruling of a prior decision. Yet, because the superseding language comes from Congress rather than the courts, it is often unclear precisely how an override interacts with the pre-existing precedent. Our study is the first to empirically address this issue. We built an original dataset of annual citations to three different groups of Supreme Court decisions: (i) cases overridden by Congress (ii) cases subsequently overruled by the Court, and (iii) a matched control group of Supreme Court decisions that were neither overridden nor overruled. Using a differences-in-differences research design, we find that, on average, citation levels to cases that have been at least partially superseded — what we call “shadow precedents” — decrease only minimally after an override, while they decrease dramatically after a judicial overruling. Our results suggest that when faced with competing signals from Congress and the courts above them, trial courts look for interpretive guidance from other judicial actors, and that courts often continue to rely extensively on overridden precedents.

A (forensic) stylistic analysis of adverbials of attitude and emphasis in supreme court decisions in philippine english

Abstract: Contemporarily, stylistics today has developed into its multiplicity – one of which is forensic stylistics. Being a powerfully legal written discourse, Supreme Court decisions are a rich corpus in which linguistic vis-a-vis stylistic choices of Court justices could be examined. This study is a humble attempt at stylistically analyzing Supreme Court decisions in Philippine English (PhE) drafted by two Filipino justices. Specifically, it sought to investigate on the classes, placements, and environments of adverbials of attitude and emphasis employed by the two justices, and drew their implications to teaching and learning English for Legal Purposes (ELP). Using McMenamin (2012), Quirk, Greenbaum, Leech, and Svartvik (1985), and Dita’s (2011) frameworks, 54 randomly selected Supreme Court decisions as primary sources of legal language were analyzed. Results are the following. Firstly, the classes of adverbials of attitude in Supreme Court decisions in PhE used by the two judges were the evaluation to the subject of the clause, judgment to the whole clause, and evaluation to an action performed by the subject of the clause, while those adverbials of emphasis were adverbials of conviction and doubt . Secondly, both adverbials they used have placements that were frequently medial and less initial in sentences where they belonged. Thirdly, the two justices put their adverbials within two principal environments, i.e. within functor, and before/after the verb among others. In these regards, legal and stylistic explanations with respect to these recurrent linguistic features in the two justices’ Court decisions were revealed. Implications of the study to ELP are explained. Lastly, trajectories for future (forensic) stylistic analyses have been recommended.

The commercialisation of equity

Abstract: This paper analyses the jurisprudence on the relevance of the commercial context to principles of the law of equity and trusts. We criticise recent UK Supreme Court decisions in the area (chiefly Williams v Central Bank of Nigeria, FHR European Ventures v Cedar Capital Partners and AIB Group v Mark Redler & Co) and identify a trend of the ‘commercialisation’ of the issues. The cases are placed in comparative context and it is argued that there is an unsatisfactory pattern of judicial reasoning, exhibiting a preference for some degree of unarticulated flexibility in commercial adjudication. But the price of that flexibility is a lack of doctrinal coherence and the development of equitable principles that will apply in, and beyond, the commercial context. We also argue that this trend has important implications for the coming rounds of Supreme Court appointments.

Law on the Market? Abnormal Stock Returns and Supreme Court Decision-Making

Abstract: Do judicial decisions affect the securities markets in discernible and perhaps predictable ways? In other words, is there “law on the market” (LOTM)? This is a question that has been raised by commentators, but answered by very few in a systematic and financially rigorous manner. Using intraday data and a multiday event window, this large scale event study seeks to determine the existence, frequency and magnitude of equity market impacts flowing from Supreme Court decisions. We demonstrate that, while certainly not present in every case, "law on the market" events are fairly common. Across all cases decided by the Supreme Court of the United States between the 1999-2013 terms, we identify 79 cases where the share price of one or more publicly traded company moved in direct response to a Supreme Court decision. In the aggregate, over fifteen years, Supreme Court decisions were responsible for more than 140 billion dollars in absolute changes in wealth. Our analysis not only contributes to our understanding of the political economy of judicial decision making, but also links to the broader set of research exploring the performance in financial markets using event study methods. We conclude by exploring the informational efficiency of law as a market by highlighting the speed at which information from Supreme Court decisions is assimilated by the market. Relatively speaking, LOTM events have historically exhibited slow rates of information incorporation for affected securities. This implies a market ripe for arbitrage where an event-based trading strategy could be successful.

Placing 'Bestial' Acts in Canada: Legal Meanings of 'Bestiality' and Judicial Engagements with Sociality

Abstract: This paper undertakes a critical methodology of case law that unpacks the sociality of the legal case. Our paper analyzes the legal case of D.L.W. (2016) through the trial, appellate and Supreme Court decisions, and mines the legal texts produced for reasoning and rhetoric pertaining to the interpretation of the legal term bestiality. The future for animal rights activists in Canada seems especially bleak after the case. Wholesale legislative change might provide the only way forward for activists. By unpacking the legislative, social, factual and judicial understandings of bestiality, it is clear the Supreme Court of Canada decision causes more problems for human-animal relations than it solves.

Obergefell’s Ambiguous Impact on Legal Parentage

Abstract: The Supreme Court decisions in Windsor and Obergefell have the potential to affect the law of parent-child relations, particularly the law that determines who is a legal parent. However, how the cases will affect this area of the law is at best ambiguous. The central question of the law of parentage is when and to what extent determinations of legal parenthood should be based on biological relationship, marriage to a child’s biological parent, or functioning as or intending to be a parent. In Windsor and Obergefell the Court endorsed the claim that children whose parents are married are better off socially and legally than non-marital children; the language in both opinions could easily be taken to support legal rules that encourage or prefer childrearing within marriage. On the other hand, the Court assumed that both members of a same-sex couple are in fact parents of the children, even though it is highly likely that only one adult is biologically related to the child. The unspoken premise is that both are parents because both function as parents (and often, but not always, both participated in the decision-making process that led to the child’s conception and birth). This article examines how the law in the various states balances claims to base legal parentage on biology, function, and marriage, and how the Supreme Court’s same-sex marriage decisions are affecting that balance. The analysis focuses on recent decisions with mixed results from Oklahoma, Maryland, Massachusetts, New York, and Wyoming. The article concludes that the Supreme Court decisions are having some impact in the lower courts, particularly by supporting recognition of the parental claims of adults who are not biologically related to children whom they have raised with their same-sex partners. However, these decisions are limited and cannot protect children and their functional parents adequately in all situations. Therefore, legislative solutions are still needed.

Patient No Longer? What Next in Healthcare Law?

Abstract: A series of Supreme Court decisions since 2013 have revisited the fundamental principles of healthcare and medical law established during the 1980s in which the Bolam test became pre-eminent. These decisions represent a watershed and suggest that a reorientation is underway, in which the law is reducing the significance of the status of patients in favour of greater recognition of the human rights of health service users as citizens. Aintree (2013) suggests that respect for professional expertise probably remains intact, but its scope is expressly limited by Montgomery (2015). That case purports to bring the law’s understanding of patients into the modern era, although a close examination reveals that the analysis is deeply flawed. The Supreme Court Justices have shown an intent to give greater scope for human rights arguments, although the basis for this, as yet, lacks a clear rationale or coherence. Montgomery claims to be a radical departure from the previous orthodoxy and suggests a need to revisit many earlier cases. The human rights turn not only alters the doctrines that underpin the law affecting healthcare, but also provides a basis for the courts to assert jurisdiction. While the European Court of Human Rights has developed jurisprudence that defers to a margin of appreciation for democratic legislatures, Nicklinson (2014) shows the UK Supreme Court asserting its authority over Parliament and may indicate that the boundaries of healthcare law are being redrawn. A v N CCG (2017) seems to continue some features of the traditional approach, but R (A & B) v Sec State for Health (2017) confirms Article 8 of the ECHR as a limiting factor, while Doogan (2014) seems to limit its scope in healthcare law (in favour of being able to balance human rights issues through employment law). Together, these developments may represent a profound shift in the constitution of healthcare law.

Can a Court Change the Law by Saying Nothing

Abstract: Can an appellate court alter substantive law without writing an opinion? We attempt to answer that question by conducting a novel empirical investigation into how the Federal Circuit has implemented the Supreme Court’s 2014 ruling in Alice v. CLS Bank, the most recent in a series of Supreme Court decisions strengthening patent law’s patentable subject matter requirement. Our dataset includes each one of the Federal Circuit’s more than 100 decisions on patentable subject matter in the three years since Alice, including affirmances issued without an opinion under Federal Circuit Rule 36. Including those no-opinion affirmances, the Federal Circuit has found the patent to be invalid in more than ninety percent of its decisions. The court’s precedential opinions, however, tell a different story: nearly a quarter of them favor the patentee by rejecting challenges to patent validity. This difference is due largely to one remarkable fact: Although the court has issued over fifty Rule 36 affirmances finding the asserted patent to be invalid, it has not issued a single Rule 36 affirmance when finding in favor of a patentee. Rather, it has written an opinion in every one of those cases. As a result, the Federal Circuit’s precedential opinions provide an inaccurate picture of how disputes over patentable subject matter are actually resolved. Those opinions suggest that any given patent has a decent chance of surviving an eligibility challenge at the Federal Circuit. But, in reality, very few patents do. Our findings suggest that, by saying nothing, a court can indeed affect substantive law, or at least the perception of it. This has interesting implications both for the on-going debate over the legality of Rule 36 and, more broadly, for understanding the differences between the law on the books and the actual experience of litigants.

Prohibition of Persons With Mental Illness From Gun Ownership Under Tyler.

Abstract: The U.S. Supreme Court's Heller and McDonald decisions are the most important legal affirmations of the right of U.S. citizens to possess and bear firearms under the Second Amendment. Heller and McDonald are also significant in citing persons with mental illness as an exceptional group, whose right may be restricted by the U.S. Government. From 1968 onward, federal and state governments have enacted legislation prohibiting gun ownership by persons with mental illness who have been involuntarily committed to an institution or deemed by a legal authority to be dangerous or mentally incompetent. The U.S. Sixth Circuit Court of Appeals in its first Tyler decision (Tyler I) placed limitations on legislation that restricts persons with mental illness from owning firearms. In its second decision (Tyler II), the appellate court reversed and remanded the case to the district court with instruction to apply "intermediate scrutiny" to determine whether this statute was constitutionally applied to appellant Charles Tyler, whose right to possess firearms was restricted in 1985 after a singular involuntary commitment during a transitory mental health crisis. Although it applies only to the Sixth Circuit, Tyler could have precedential influence on gun restrictions for persons with mental illness in other jurisdictions.

All but Overturned: America's Nullification of Brown v. Board of Education

Abstract: Six decades have passed since the Supreme Court's holding in Brown v. Board of Education declared “separate educational facilities for the races are inherently unequal.” Yet, the educational landscape for still far too many Black and Latino school children more resembles Plessy v. Ferguson. Years of resistance to the letter and spirit of Brown in various forms culminated with a series of Supreme Court decisions in the 1990s that released scores of local school districts from court-mandated desegregation orders. These political and legal battles over desegregation and busing are often understood as part of the “Southern strategy” utilized by Republicans to appeal to the racial resentments of white voters who traditionally voted Democratic. This essay, by drawing parallels to the Nullification Crisis of 1832–1833, argues that the so-called Southern strategy is not a mere by-product of “white backlash” to the civil rights movement. Rather, the Nullification Crisis is the crucible for a uniquely American reactionary political tradition that opposes the ideal of multiracial democracy. Thus, America's “nullification” of Brown represents the norm, not the exception, to the pattern of American history with respect to race.

The Aftermath of Hobby Lobby and Obergefell: A Reconceptualization of Religious Freedom in the United States and its Potential Implications for Public Schools and Pluralist Democracies

Abstract: Restricting public employees' free exercise rights or the State to maintain neutrality toward religion has been longstanding precedent in the United States. It has certainly been the case in US public schools beginning in the 1940s and affirmed through the courts over and again through much of the 20th century. The aftermath of 2 recent Supreme Court decisions challenges this long-held precedent, however, as it has led to several instances in which public employees have requested religious exemptions from their professional obligations (e.g., Kentucky court clerk Kim Davis' refusal to grant marriage certificates to same-sex couples). This article provides a foundational framework for exploring the recent reconceptualization of religious freedom and its possible implications for public schools and the larger project of advancing a liberal, pluralist democracy were teachers to refuse to fulfill central elements of their job on the basis of religious objections.

Feminist Judging Matters: How Feminist Theory and Methods Affect the Process of Judgment

Abstract: This essay, written in connection with the University of Baltimore School of Law’s 10th Annual Feminist Legal Theory Conference, explores the relationship between the real-world practice of law and feminist legal theory. Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press, 2016) was a collaborative effort of over 50 law professors and practitioners to rewrite, from a feminist perspective, key Supreme Court decisions on gender, using only the precedent in effect and the facts known at the time of the original decision. This essay situates the U.S. Feminist Judgments project and other international feminist judgments projects within the scholarly tradition of feminist legal theory, and explores why the socio-legal movement of rewriting judicial opinions from a feminist perspective is essential in a world that is increasingly interrelated and international. The essay argues that feminist judgments demonstrate the potential for lawyers to incorporate feminist theory and methods into oral and written arguments, for law students to gain deeper insights from and to learn the practical utility of feminist theory, and for judges to recognize how incorporating feminist perspectives may transform the reasoning or outcome of a case without changing the law or the facts of the underlying lawsuit. The essay concludes with an examination of three recent Supreme Court opinions – Justice Sotomayor’s dissent in Utah v. Strieff, Justice Ginsburg’s majority decision in Sessions v. Morales-Santana, and Justice Gorsuch’s dissent in Perry v. Merit Systems Protection Board – as consistent (or inconsistent) with the theories and methodologies that are characteristic of feminist judgments.

O relator dá voz ao stf? uma réplica a almeida e bogossian

Abstract: In a recent article published in this journal, Danilo dos Santos Almeida e Andre Martins Bogossian advanced an interesting thesis on the role of the judge rapporteur as the one who delivers the reasons for a given decision in the Brazilian Supreme Court. To a great extent, their article establishes a dialogue with an article I myself published in this journal before. In this short reply, I aim to show that, despite their good arguments, they overrate the relevance of the written opinion of the judge rapporteur, at least as far as the most important Supreme Court decisions are concerned. Although the written opinion of the judge rapporteur indeed delivers the reasons for deciding in ordinary and routine decisions, since in those decisions the rapporteur's opinion is often the only written document, this is not necessarily true in the most important decisions of the Brazilian Supreme Court.

Authorial Control of the Supreme Court

Abstract: The Chief Justice of the United States Supreme Court authors many of the most important opinions coming out of the Court. The prestige of authoring an important policy decision, and the value that such an opinion adds to the legacy of the Chief Justice’s Court, plays an important and strategic role in the Court’s opinion authorship dynamics and the policy outcomes of the Court. We present a Supreme Court decision-making model that, within the confines of legal doctrine, incorporates the authorship utility of the Chief Justice (and senior associate justices who hold secondary, yet important, property rights over authorship). New predictions emerge about who authors the Court’s opinion, what case outcome is chosen by the justices, which legal doctrines are chosen, and which decisions are unanimous among the justices. We illustrate aspects of the model with recent Supreme Court decisions involving health care and campaign financing.

The Jury and Empire: The Insular Cases and the Anti-Jury Movement in the Gilded Age and Progressive Era

Abstract: This article contributes to several debates and literatures, which have not previously been all linked together: the history of the jury in the United States, the nature of U.S. imperialism and colonial governance in Puerto Rico and the Philippines, and Progressive era legal reform. The story starts with the Insular Cases — landmark Supreme Court decisions from the early twentieth century holding that jury rights and some other constitutional guarantees did not apply in Puerto Rico and the Philippines until and unless Congress had taken decisive action to "incorporate" the territories into the union. The conventional wisdom among scholars is that the Supreme Court in these decisions shamefully ratified the U.S. government's discrimination and domination over the peoples of newly-acquired colonies. Racism and cultural chauvinism are blamed as primary causal factors. The article shows that Congress, the executive, the courts, and local legislatures in the Philippines and Puerto Rico granted almost every single right contained in the Constitution to the territorial inhabitants, with the exception of the jury. So while deep, institutional racism was certainly present and causally important, it is also true that U.S. governance in the territories was not a project of wholesale discrimination. Motivations, goals, and outcomes were complex. Protection of rights of local inhabitants was a key concern of U.S. policymakers. But the jury was considered a unique case, different than other rights. To understand why the jury was thought uniquely unsuited for the new U.S. colonies, this article fills out a largely overlooked history of the jury in the mainland United States during the Gilded Age and Progressive Era. Most histories of the jury skip from the adulation of the institution at the Founding, to the Warren-Burger Courts' decisions over 150 years later that racial and gender discrimination in jury service were unconstitutional and that the criminal petit jury was a fundamental right. It turns out that the late nineteenth and early twentieth centuries saw severe criticism of the jury by elite lawyers, the newly-created bar associations in big cities, the reformist popular press, and progressive movement leaders. Many states cut back on jury rights at the time. And the Supreme Court held then that states should not be forced to "straight jacket" themselves (in the Court's words) to the common law procedure of old England that was found in the Bill of Rights, but should be free to experiment to create more efficient criminal and civil procedure. Leaders of the anti-jury reform movement in the United States were also leading policymakers for colonial issues in Puerto Rico and the Philippines, notably William Howard Taft. Many of the same arguments against the jury were made in both contexts. Linking the anti-jury movement to the legal and political decision-making about governance of the new territories helps enrich our understanding of both.