Showing papers on "Supreme Court Decisions published in 2018"

Predicting Decisions of the Philippine Supreme Court Using Natural Language Processing and Machine Learning

Abstract: For the past decades, Philippine courts have been experiencing severe court congestion and case backlog problems. This study aims to provide a solution to alleviate these problems by predicting the outcome of court cases. As the Philippine Supreme Court case decisions are the only readily available data online, we use this as our dataset. We use Natural Language Processing, particularly the bag-of-words model to represent the case text into n-grams. Spectral clustering is also used to group these n-grams into topics. These n-gram and topic features are then input to the machine learning algorithms such as linear support vector machines and random forest classifiers. Linear support vector machine results reached 45% on the n-gram datasets and 55% on the topic datasets. The best result we obtained is 59% on the topic datasets using a random forest classifier. This is the first systematic study in predicting Philippine Supreme Court decisions based purely on textual content.

The Supreme Court’s Crisis Pregnancy Center Case — Implications for Health Law

Abstract: The Supreme Court’s Crisis Pregnancy Center Case The decision in National Institute of Family and Life Advocates v. Becerra has created new uncertainty, and invited new litigation, regarding numerous health laws that were once assumed to be constitutional.

Why do judges depart? A review of reasons for judicial departures in federal sentencing

Abstract: Over the past decade, scholars have produced a fairly large body of research evaluating the factors that predict the use of judicial departures following the Booker/Gall Supreme Court decisions, which transformed the guidelines from presumptive to advisory. With few exceptions, studies reveal that these decisions have not led to an increase in unwarranted disparities. Less is known, however, about the factors that motivate judges to impose sentences that are more punitive or more lenient than those specified by the guidelines. The purpose of this research note is to provide a comprehensive empirical analysis of the reasons federal judges give for downward and upward departures and to identify the themes that animate these decisions. We use 2013 federal sentencing data to identify six themes found in the reasons judges give for departing from the presumptive sentence. We find that judges’ explanations reflect their individual philosophies of punishment, their evaluations of the defendant, the victim and the offense, their attempts to correct what they view as problematic guideline issues, and/or their concerns about various court and correctional contexts and constraints. The results of our study provide a deeper and more nuanced understanding of the factors federal judges consider as they attempt to tailor sentences to fit offenders and their crimes. The results of our study enhance understanding of how judges interpret sentencing guideline policies. We discuss the implications of these findings for theory and policy.

Federalism, Convergence, and Divergence in Constitutional Property

Abstract: Federal law exerts a gravitational force on state actors, resulting in widespread conformity to federal law and doctrine at the state level. This has been well recognized in the literature, but scholars have paid little attention to this phenomenon in the context of constitutional property. Traditionally, state takings jurisprudence—in both eminent domain and regulatory takings—has strongly gravitated towards the Supreme Court’s takings doctrine. This long history of federal-state convergence, however, was disrupted by the Court’s controversial public use decision in Kelo v. City of New London. In the wake of Kelo, states resisted the Court’s validation of the economic development justification for public use, instead choosing to impose expansive private property protections beyond the federal minima. This resistance thus raises a fundamental puzzle: despite the fracturing of public use doctrine following Kelo, states continue to converge around the force of and be lured by the Court’s regulatory takings jurisprudence. Why is this? This Article argues that the most persuasive explanation is the political economy; that is, where homeowners are perceived to be underprotected by Supreme Court decisions, state actors are more likely to diverge from federal doctrine to grant greater protections as opposed to when the challenger is a developer-landowner. The Court has not underprotected a homeowner in a regulatory takings challenge in a manner that would spark a similar post-Kelo state resistance. Few scholars have explored this mystery and offered conceptual and doctrinal explanations on the value of state divergence from federal takings doctrine in our federalist regime.

Risk assessment and juvenile resentencing: A critical analysis

Abstract: Recent United States Supreme Court decisions in Miller v. Alabama (2012) and Montgomery v. Louisiana (2016) have created the need to resentence individuals who received a sentence of mandatory life without parole (LWOP) for offenses committed when they were younger than 18 years old. Neither of these decisions explicitly cite reoffense risk as a sentencing criterion, but a careful reading of the reasoning in these cases suggests that such a risk should be among the considerations addressed by resentencing courts. If so, important theoretical and scientific questions are raised about the nature of risk assessment tools, in particular the distinction between static and dynamic risk factors. Additionally, the novelty of LWOP resentencing raises further questions about the applicability of these tools to individuals who have been incarcerated for long periods of time. We address these questions, call for additional research on dynamic risk factors, and offer recommendations for professionals involved in these types of assessments.

Rewriting Judicial Opinions and the Feminist Scholarly Project

Abstract: In late 2018, the Notre Dame Law Review Online will publish a series of ten essays that reflect on the significance and impact of the book Feminist Judgments: Rewritten Opinions of the United States Supreme Court (Cambridge University Press 2016) ("U.S. Feminist Judgments"). The contributors to the symposium include the three editors of U.S. Feminist Judgments and eleven other commentators — among them law professors and practicing attorneys as well as a retired judge and a political scientist. As the name of the book implies, feminist judgments are judicial opinions rewritten from a feminist perspective. The essays in this online symposium respond to several questions raised by the rewriting project: whether this exercise in re-imagining key Supreme Court decisions enhances and expands the feminist scholarly project, how the shadow opinions can be used by lawyers in the courtroom, and how studying the rewritten opinions offers an opportunity for students to better understand that particular legal results are neither predetermined nor inevitable, but rather the product of multiple factors, including the perspective of the deciding judge. The symposium's diverse contributors engage with the book from varying perspectives, with some focusing on doctrine, others on theory, and still others on process. The end result is a rich and comprehensive look at the volume whose 25 alternative judgments might have effected a legal and cultural shift in the United States in terms of gender equality. U.S. Feminist Judgments connects with similar feminist judgments projects all over the world and has inspired a series of subject-matter specific books that are forthcoming from Cambridge University Press. The symposium's reviewing contributors are Leah Ward Sears, formerly the Chief Justice of the Georgia Supreme Court; attorneys Sarah Weddington, who argued Roe v. Wade before the Supreme Court of the Supreme Court of the United States; Gillian Thomas of the ACLU Women's Rights Project; Sasha Greenberg of Smith, Gambrell & Russell, LLP in Atlanta, Georgia; political scientist Claire Wofford (College of Charleston); U.S.-based law professors Noa Ben-Asher (Pace University); Margaret Johnson (University of Baltimore); Elizabeth Kukura (Drexel University); and Sandra Sperino (University of Cincinnati); and Australia-based law professors Gabrielle Appleby (University of New South Wales) and Rosalind Dixon (University of New South Wales). The first essay in the symposium, written by Linda L. Berger, Kathryn M. Stanchi and Bridget J. Crawford, the editors U.S. Feminist Judgments and the U.S. Feminist Judgments series of books, explores how feminist judging is a complex and potentially transformative practice (as well as one consistent with a judge's ethical obligations). The essay also examines the interplay between and among law, public opinion and judicial decisions in the United States and all around the globe, with reference to sister feminist judgments projects in Canada, England, Australia, Ireland, New Zealand, Scotland, India, Mexico and a pan-European collaboration. The book's editors argue that feminist legal theory's capacious analytic tools can highlight bias in the law that is based on race, gender, sex, sexuality, ethnicity, class, nationality, language, culture, ability, immigration status and religion. The ultimate goal of U.S. Feminist Judgments is to encourage students, lawyers, judges, law professors, and members of the public to understand that the law’s future trajectory is not etched in stone. The legal system can become more inclusive and just; feminist jurisprudence offers one pathway toward that future.

Spillovers from regulating corporate campaign contributions

Abstract: Populist clamor and recent Supreme Court decisions have renewed calls for increased regulation of corporate money in politics. Few empirical estimates exist, however, on the implications of existing rules on firms' political spending. Exploiting within firm-cycle cross-candidate variation and across firm-cycle variation, we demonstrate that the regulation of PAC campaign contributions generates large spillovers into other corporate political expenditures such as lobbying. Using both high dimensional fixed effects and regression discontinuity designs, we demonstrate that firms constrained by campaign contribution limits spend between $549,000 and $1.6M more on lobbying per election cycle, an amount that is more than 100 times the campaign contribution limit. This empirical results demonstrate that, similar to regulations in other domains of the economy, constraining specific corporate political activities often yields unintended effects.

Criteria for 'Good' Justifications

Abstract: Many institutions in a democratic society wield important power by virtue of the decisions they make. These decisions may concern individuals or have a more general impact on society. It goes without saying today that this exercise of power must be accounted for. A supreme court’s reasoning is given in its judgements. A central bank’s reasoning is given in the decision-making body’s minutes. In this paper, we develop criteria for what constitute good written justifications for a decision, not what makes a good decision per se. We look at the two institutions we know best: supreme courts and central banks. Of course, these are not the only institutions that exercise power on behalf of the state, and we also ask whether our criteria could be applied more generally. We assess a selection of supreme court judgements and monetary policy decisions in various countries qualitatively against our criteria, and find that practice largely conforms to the criteria. There are some common features between supreme courts and central banks. In recent years there has been a development in the way the judgments are written in the UK Supreme Court. Earlier, each judge wrote his votum. Now they are writing a common text. With individual writing, there were many different formulations of the normative text. It is easier for the public to relate to one legislative text. The UK Supreme Court, under the presidency of Lord Neuberger, has therefore gradually moved towards writing a joint text. John Roberts, the US Chief Justice, thought that judges should be worried when they are writing separately about the effect on the court as an institution. What about the minutes of the central banks? Professor Alan Blinder at Princeton argues that a central bank that speaks with a cacophony of voices has no voice at all. Professor Otmar Issing, the former Chief Economist and Member of the Board of the ECB, believes that there is a danger that individual minutes provide an incentive for individual members to put themselves ahead of the institution. We also test empirically whether the institutions’ decisions and the justifications for these decisions are communicated in clear language. Our analysis is inspired by Bank of England chief economist Andrew Haldane’s speech “A little more conversation, a little less action”, and by the report “Bankspeak: The Language of World Bank Reports 1946-2012” by Franco Moretti and Dominique Pestre at Stanford Literary Lab. We analyse more than 6,000 central bank and supreme court decisions from the past decade and find considerable differences in length and readability across countries and institutions. The grand chamber decisions of the European Court of Human Rights are by far the longest, while the European Court of Justice employs the most complex language. The Danish central bank keeps things briefest and uses the clearest language, but also has the simplest regime to explain. The Swedish central bank’s minutes stand out as both long and complex, while the Norwegian central bank is unusually concise. Moretti and Pestre analysed the text of all World Bank reports and found quantitative indications that the language of the reports had moved in the wrong direction in terms of readability. We perform the same tests on central banks and supreme courts and find that these institutions’ language has not moved in the same negative direction. Former Bank of England governor Mervyn King argued that the design of an institution “must reflect history and experience”, and there is no doubt that each institution’s way of writing is influenced by its own history. This is what economists refer to as “path dependence”. We wonder, however, whether there is rather too much path dependence in many cases, and whether the institutions in question might benefit from looking at trends and learning from other institutions both at home and abroad. In our work on this paper, we have been particularly wary of phrases along the lines of “based on a general assessment”. Alarm bells sound whenever we see them, especially with any frequency, as they are liable to conceal rather than illuminate the true rationale.

The Supreme Court Ruling in Sandoz v Amgen: A Victory for Follow-on Biologics

Abstract: In June 2017, the Supreme Court issued its first decision concerning follow-on biologics—lower-cost versions of innovator biologics—ruling 9-0 in Sandoz v Amgen.1 The decision ruled that follow-on biologic companies are not required to share their licensing application with the innovator company and that a required 180day notice to the innovator company before commercial marketing could be given before US Food and Drug Administration (FDA) approval of their product. This handed the nascent follow-on biologics industry a substantial, albeit incomplete victory, which may help reduce prices and improve patient access to biologic therapies.

Why Canada's Medical Assistance in Dying Legislation Should Be C(h)arter Compliant and What It May Help to Avoid

Abstract: In 2015, the Supreme Court of Canada in Carter v Canada (AG) (Carter) invalidated the absolute prohibition on what is now known in Canada as medical assistance in dying (MAID), It nevertheless reaffirmed the validity of a more limited criminal law-based prohibition and the role of the criminal law. In response, the 2016 federal legislation provides access to MAID to competent adults who have a grievous and irremediable medical condition that causes enduring and intolerable suffering, but it balances this with restrictions aimed at the realization of several broad goals and values: the protection against errors and abuse; the equal value of every person’s life and the avoidance of negative perceptions of the quality of life of persons who are elderly, ill, or disabled; the prevention of suicide; and the protection of vulnerable people. Access is therefore restricted to people whose natural death is “reasonably foreseeable” and whose “capabilities” are irreversibly declining. Several commentators have criticized the law for being inconsistent with Carter and for violating the Canadian Charter of Rights and Freedoms (Charter) and the law is already being challenged in court. In this article, we argue that the federal legislation constitutes a proper response to Carter, in that it respects Carter as well as the Charter. The first Part of the article discusses the largely ignored restrictive, and at times contradictory, nature of the Carter trial and Supreme Court decisions, their discussion of the evidence, the subsequent public and parliamentary debates, the introduction of the legislation, and some problematic interpretations that have since been put forward. The second Part of the article looks at serious problems that are increasingly identified in Belgium's euthanasia regime, which has been hailed by some as a good model for MAID regulation, and which played a particular role in the Carter decision. Our discussion highlights how a Belgian-style regime, which provides broad access to MAID outside of the end-of-life context and relies mostly on physician evaluations and post-factum reporting as safeguards, risks undermining the legitimate goals and values of the federal legislation. The authors conclude with recommendations to keep the current end-of-life restrictions in place, to introduce a meaningful reporting system, and to provide proper guidance for the interpretation of the end-of-life restrictions.

Os Juízes na Pauta do Supremo: a Atuação da Associação dos Magistrados Brasileiros no Controle Concentrado de Constitucionalidade

Abstract: Brazilian Judges’ Association is a central political actor in the defense of the rights, prerogatives and benefits of the judicial corporation in the Brazilian Supreme Court. So, the research that underlies this paper analyzed 93 Supreme Court decisions in actions filed by the AMB between 1988 and 2017, in order to understand how the AMB has used its legitimacy to provoke concentrated judicial review. The result offers a diagnosis of the use of concentrated control from the identification of conflicts between the judiciary, other spheres of state power and other legal careers. In addition to mapping the main themes of decisions the text presents an evaluation of the standard of decision adopted on issues such as judicial organization, remuneration policy and judicial Independence. The article also raises hypotheses about the STF's judicial behavior when it is in the defense of the corporate interests of other members of the Judiciary.

The States' Interest in Federal Procedure

Abstract: Recent changes to federal procedure have alarmed state governments. In a handful of cases decided in the past ten years, the Supreme Court has dramatically restructured basic procedural devices like general personal jurisdiction (Daimler AG v. Bauman), class actions (AT&T v. Concepcion), and pleading (Bell Atlantic Corporation v. Twombly). Signaling their concern, dozens of states have written sharp amici in some of these cases, demanding that federal courts refrain from remaking longstanding doctrines. Expressing their distress, some state legislatures have threatened to skirt Supreme Court decisions through tactically worded state legislation: a New York bill seeks to circumvent Daimler, while a California bill promises to avoid the consequences of Concepcion. Even state courts have joined the effort, embracing creative ways to avoid the consequences of these groundbreaking procedural decisions. This type of state intrusion into federal procedure is novel and raises questions about federalism and the development of federal procedure.This Article sheds light on the growing phenomenon of state attempts to influence federal procedure, its causes and consequences. First, it develops a typology of federal procedure’s interaction with state courts. Then, it explores how states have recently responded to federal changes by seeking to shape federal procedure through legislation, court decisions, and amici. In exploring these developments, the Article discusses the passive influence of state law, which is the unseen and unintentional ways through which state law shapes federal procedure, and active state actions, like amici and legislation that advocate a particular view of federal procedure. These interventions have been strident and ubiquitous. Second, the article critically analyzes states’ interests in federal procedure and proposes a dynamic theory as to why states may seek to shape federal procedural devices. In their amici, states claim that federal changes threaten court access for “private attorneys general” and that local businesses should not bear the burden of federal procedural overreach. However, the Article argues that this is an incomplete account of events — deeper motives influence states, including state-federal competition in the litigation market that encourages states to retain important and lucrative cases in state court. This incentive system has also been influenced by the recent marriage between politics and procedure — state Republican Party officials have embraced an anti-litigation narrative that opposes class actions and litigation generally, while Democrats support looser procedure and open courts. These positions translate into surprisingly nuanced views of federal procedure. Finally, the Article focuses normatively on whether states’ actions are salutary for federal procedure. Thereafter, it suggests ways to accommodate state interests in the structure and framework of federal procedure such that important changes can avoid federal-state friction.

Patterns in the politics of drugs and tobacco: The Supreme Court and issue attention by policymakers and the press:

Abstract: Past research has demonstrated lasting effects of important Supreme Court decisions on issue attention in the national media. In this light, the Court has served as an important agenda setter. We significantly expand on these findings by arguing that these salient Court decisions can raise the perceived importance of political issues and induce heightened, short-term policy attention in the broader political system. Using measures of media attention, congressional policy actions, and presidential policy actions, we utilize dynamic vector autoregressive modelling to examine the Court’s impact on issue attention in the macro policy system regarding tobacco and drug policy. Overall, this study suggests that the Supreme Court’s most important decisions might significantly affect broader issue attention in the American political system.

The New(Clear?) Electricity Federalism: Federal Preemption of States’ “Zero Emissions Credit” Programs

Abstract: This Article proposes and applies a “conscious disregard” test for resolving the upcoming appellate litigation that involves the conflict between federal authority over the electric grid and state laws providing subsidies to nuclear power plants in the form of “zero emissions credits” (ZECs). This test draws upon principles of conflict preemption, as elaborated in three recent Supreme Court decisions on the intersection of state and federal jurisdiction over the electric grid under the Federal Power Act. It provides that if a state law explicitly aims to directly affect wholesale electricity market prices, terms or conditions, its subsidy program is impermissible as conflicting with the regulatory jurisdiction of the Federal Energy Regulatory Commission (FERC). Applying this “conscious disregard” test, the Article concludes that federal law preempts the state laws and that lower courts’ decisions to the contrary were in error. The Article explains that the Court has ushered in a new era of jurisprudence under the Federal Power Act in which the states and FERC have significant and concurrent responsibilities for regulating the electric grid. It then contends that this dynamic, concurrent federalism environment of policy innovation is an essential backdrop to decision-making in the nuclear subsidies cases, as there is considerable unease about the interaction between state energy policies and the wholesale electricity markets overseen by FERC. Many commentators have called into question how the two can coexist going forward, and as a result, the Article explains how states’ “around-market” policies such as the nuclear subsidies involve overlaps between state and federal laws. The Article’s conscious disregard test for addressing these overlaps brings together three distinct concepts. A state cannot “aim” its subsidy law at the wholesale markets, as the Court held in ONEOK v. Learjet. FERC, not the states, has authority over the terms, conditions, and results on wholesale markets, under FERC v. EPSA’s “directness” standard. Hughes v. Talen Energy Marketing found unlawful state programs that disregard wholesale rates or are closely linked (or “tethered”) to the wholesale markets. The Article contends that the ZEC programs violated this test. Finally, the Article contends that only a test that is based on conscious disregard for wholesale market results can harmonize the three recent Supreme Court decisions, preserve valuable state policy experimentation, and set a narrowly defined preemption standard that avoids unintended consequences in future litigation.

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.

A Short Defense of Southland, Casarotto, and Other Long-Controversial Arbitration Decisions

Abstract: Scalding criticism of Supreme Court arbitration decisions appeared in the 1990’s and is now widespread. Over twenty years ago, the Supreme Court held that pre-dispute arbitration clauses in adhesion contracts are generally enforceable. Thoughtful scholars then feared threats to consumers’ and employees’ rights, and today similarly warn that the Court’s recent arbitration decisions “will provide companies with free rein to commit fraud, torts, discrimination, and other harmful acts without fear of being sued.” Professors are not the only sources of strong language opposing the Court’s arbitration decisions. Under the heading “Forced Arbitration Destroys Individual Rights,” a 2015 federal court decision declares: “Today, forced arbitration bestrides the legal landscape like a colossus, effectively stamping out the individual’s statutory rights wherever inconvenient to the businesses which impose them. What is striking is that, other than the majority of the Supreme Court, whose questionable jurisprudence erected this legal monolith, no one thinks they got it right.” From this alleged consensus of “No one thinks they got it right,” this Article dissents in significant part. While I have long opposed Supreme Court decisions on arbitration law’s separability doctrine and judicial review of arbitration awards, and would reduce adhesive arbitration agreements’ impact on class actions, I continue to sympathize with some of the Court’s long-controversial arbitration decisions. I choose the word “sympathize” because I believe much of the criticism of the Court’s arbitration decisions does not sufficiently weigh the difficult position the Court was in when deciding those cases. The FAA was enacted in the 1920’s before the landmark federalism case of Erie v. Tompkins, the New Deal’s expansion of the Commerce Clause and thus of federal power to preempt state law, the growth of federal employment and consumer law in the 1960’s and 1970’s, and the ensuing explosion of class actions. Each of these enormous changes to our nation’s legal landscape conflicted with the premises underlying the FAA. While Congress could have amended the FAA to accommodate and be more consistent with these enormous changes, it did not. So, reconciling an old statute with a half century of law in tension with that statute’s premises became the Court’s task. The Courts’ critics generally argue that the drafters and adopters of the FAA did not intend for it to: (1) preempt state law or (2) cover consumer and employment arbitration agreements. This Article responds to those arguments.

The 2018 FTC Hearings on IP & Innovation: Key Testimony, Economic Learnings, and Recommendations for Further Study

Abstract: This Article provides a summary of some of the key testimony from the U.S. Federal Trade Commission’s October 23-24, 2018 hearings on intellectual property (IP) and innovation, followed by insights from the economics literature and recommendations for future study. Covered topics include: the role and importance of IP rights in promoting innovation; the role of IP in business and investment decisions, including data on recent investment trends; and effects of recent patent law reforms, including U.S. Supreme Court decisions restricting patent eligible subject matter (2012 Mayo and 2014 Alice decisions) and weakening patentees’ ability to obtain injunctive relief (2006 eBay decision); the high invalidity rate of patents following the 2011 American Invents Act and its creation of post-grant challenges through the Patent Trial and Appeal Board (PTAB); and the general trend towards lower patent damages awards. Key testimony covered includes remarks by the Commissioner for Patents at the U.S. Patent and Trademark Office, the Acting Chief Judge of the PTAB, investors and other industry participants, and leading academics.

Reforming the homelessness legislation? Exploring the constitutional and administrative legitimacy of judicial lawmaking

Abstract: This paper analyses the significance from both a constitutional law and administrative law viewpoint of three recent Supreme Court decisions which offered new perspectives on the meaning of important elements of the homelessness legislation (now Part VII of the Housing Act 1996). It is suggested that the collective impact of these judgments has produced what is in formal, doctrinal terms a significant amendment of the Act, notwithstanding both that the text of the legislation remains unaltered and that the Supreme Court has declined expressly to overrule pertinent previous authorities. The article explores both the constitutional legitimacy of such judicial innovation in a theoretical sense and its likely impact in practical terms on the conduct of local authority decisionmaking and the entitlements that the homelessness legislation bestows upon homeless people.

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.

US Supreme Court allows historic kids' climate lawsuit to go forward.

Abstract: Case aims to compel the government to slash greenhouse-gas emissions. Case aims to compel the government to slash greenhouse-gas emissions.

Are U.S. Public Lands Unconstitutional

Abstract: Arguments are sometimes made most recently in a paper commissioned by the State of Utah, and by a lawyer for a defendant facing charges for the armed takeover of a National Wildlife Refuge in Oregon in 2016 that U.S. public lands are unconstitutional. This article disputes that position. It digs deeply into the history of the public lands, going back to the very founding of the nation. It seeks to show that the arguments for unconstitutionality reflect an incomplete, defective understanding of U.S. legal and political history; an extremely selective, skewed reading of numerous Supreme Court decisions and federal statutes; a misleading assertion that states have very limited governing authority over activities taking place on U.S. public lands; and even a misuse of the dictionary. At bottom, the arguments rest on the premise that the U.S. Supreme Court should use the U.S. Constitution to determine how much if any land the U.S. may own in any state. For the Court to assume that responsibility would be a breathtaking departure from more than 225 years of practice during which Congress has made that determination through the political process, and from a century and a half of Supreme Court precedent deferring to Congress. It would also be contrary to the Court’s often expressed reluctance to revisit settled public land law, upon which so many property transactions depend.

Supreme Court Invalidates Public-Sector Union Agency Fees: Considerations for Congress in the Wake of Janus

Abstract: This report discusses the Supreme Court case Janus v. American Federation of State, County, and Municipal Employees, Council 31 (AFSCME). In a 5-4 decision, the Court held that "agency fee" arrangements between a union and a government employer necessarily violate the First Amendment, overruling its 1977 decision in Abood v. Detroit Board of Education.

Values and Valuations in Judicial Discourse. A Corpus-Assisted Study of (Dis)Respect in US Supreme Court Decisions on Same-Sex Marriage

Abstract: Abstract This paper investigates the role of (DIS)RESPECT a value premise in two landmark civil rights cases given by the United States Supreme Court. It adopts a corpus-assisted approach whereby a keyword analysis and the analysis of key semantic domains are used to identify potential values relied upon by judges in their justifications. The two categories of NO RESPECT and RESPECTED have been selected and examined as one domain of (DIS)RESPECT. (DIS)RESPECT turns out to be the only value marked by strong evaluative polarity and it is found in the majority, as well as in dissenting opinions. The analysis shows how the notion of (DIS)RESPECT has been integrated into the arguments of judges and it highlights the central importance of values and the related evaluative language for legal argumentation.

Are U.S. Public Lands Unconstitutional

Abstract: Arguments are sometimes made most recently in a paper commissioned by the State of Utah, and by a lawyer for a defendant facing charges for the armed takeover of a National Wildlife Refuge in Oregon in 2016 that U.S. public lands are unconstitutional. This article disputes that position. It digs deeply into the history of the public lands, going back to the very founding of the nation. It seeks to show that the arguments for unconstitutionality reflect an incomplete, defective understanding of U.S. legal and political history; an extremely selective, skewed reading of numerous Supreme Court decisions and federal statutes; a misleading assertion that states have very limited governing authority over activities taking place on U.S. public lands; and even a misuse of the dictionary. At bottom, the arguments rest on the premise that the U.S. Supreme Court should use the U.S. Constitution to determine how much if any land the U.S. may own in any state. For the Court to assume that responsibility would be a breathtaking departure from more than 225 years of practice during which Congress has made that determination through the political process, and from a century and a half of Supreme Court precedent deferring to Congress. It would also be contrary to the Court’s often expressed reluctance to revisit settled public land law, upon which so many property transactions depend.

Securities Regulation and Initial Coin Offerings: A Legal Primer

Abstract: This report discusses the principles that the Securities and Exchange Commission (SEC) and courts use to determine whether a transaction qualifies as an offering of "securities" under the Securities Act and the Exchange Act, and the application of those principles to initial coin offerings (ICOs).

How Perris v. Hexamer Was Lost in the Shadow of Baker v. Selden

Abstract: Perris v. Hexamer stands out as case that is equal parts important and forgotten. It is obviously important – it is one of a preciously small number of Supreme Court decisions on the idea/expression dichotomy, but it is mostly forgotten in favor of the Court’s decision the following year in Baker v. Selden. It is equally obscure – Westlaw counts 2,703 citations of Baker v. Selden, and 81 of Perris v. Hexamer. Yet the subject matter of both decisions is surprisingly similar, and these cases tell us far more when considered in tandem than when either one is considered on its own. This piece will seek to tell the story of Perris v. Hexamer – in terms of both the background of the controversy and the procedural background that led to the lawsuit, as well as discussing the decision itself. Following this, two questions will be addressed – firstly why Perris was largely forgotten as a decision about the idea/expression dichotomy, and secondly why the vote among the Justices was different in Perris than in Baker v. Selden.

The Irrepressible Functionalism in U.S. Foreign Relations Law

Abstract: This essay, written as an introduction to a collection of law review articles, describes the pervasive role of functionalist reasoning in modern Supreme Court decisions relating to foreign relations law. Much of this reasoning consists of “first-order functionalism”—that is, the legal tests themselves are formulated in functionalist terms. For some foreign relations law doctrines, however, the Court has insisted on more categorical rules, and some commentators have suggested that this insistence has become more common in recent years. Even in these instances, the essay explains, the Court has often relied on functionalist reasons for formalizing the doctrine—that is, it has relied on what the essay calls “second-order functionalism.” The essay is intended to be primarily descriptive rather than normative and makes no claim about the persuasiveness of the Court’s functionalist reasoning. Instead, the claim is simply that functionalist reasoning has been a recurring feature of judicial decisions in the foreign relations law area and that this reasoning has persisted, although sometimes in different forms, even when the Court has shifted to more formal legal doctrines.