Showing papers on "Supreme court published in 1996"

Legal Reasoning and Political Conflict

Abstract: The most glamorous and even glorious moments in a legal system come when a high court recognizes an abstract principle involving, for example, human liberty or equality. Indeed, Americans, and not a few non-Americans, have been greatly stirred-and divided-by the opinions of the Supreme Court, especially in the area of race relations, where the Court has tried to revolutionize American society. But these stirring decisions are aberrations, says Cass R. Sunstein, and perhaps thankfully so. In Legal Reasoning, Sunstein, one of America's best known commentators on our legal system, offers a bold, new thesis about how the law works in America, arguing that the courts best enable people to live together, despite their diversity, by resolving particular cases without taking sides in broader, more abstract conflicts. Sunstein offers a close analysis of the way the law mediates disputes in a diverse society, examining how the law works in practical terms, and showing that, to arrive at workable, practical solutions, judges must by necessity avoid broad, abstract reasoning. Why? For one thing, adversaries who would never agree on fundamental ideals are often willing to accept the concrete details of a particular decision. Likewise, a plea bargain for someone caught exceeding the speed limit need not-indeed, must not-delve into sweeping issues of government regulation and personal liberty. Thus judges purposely limit the scope of their decisions to avoid reopening large-scale controversies. Sunstein calls such actions incompletely theorized agreements. In identifying them as a core principle of legal reasoning, he takes issue with advocates of comprehensive theories and systemization, from Robert Bork (who champions the original understanding of the Constitution) to Jeremy Bentham, the father of utilitarianism. Equally important, Sunstein goes on to argue that it is the living practice of the nation's citizens that truly makes law. For example, he cites Griswold v. Connecticut, a groundbreaking case in which the Supreme Court struck down Connecticut's restrictions on the use of contraceptives by married couples-a law that was no longer enforced by prosecutors. In overturning the legislation, the Court invoked the abstract right of privacy; the author asserts that the justices should have appealed to the narrower principle that citizens need not comply with laws that lack real enforcement. By avoiding large-scale issues and values, such a decision could have led to a different outcome in Bowers v. Hardwick, the decision that upheld Georgia's rarely prosecuted ban on sodomy. Legal reasoning can seem impenetrable, mysterious, baroque. This book helps dissolve the mystery. Whether discussing the interpretation of the Constitution or the spell cast by the revolutionary Warren Court, Cass Sunstein writes with grace and power, offering a bold new vision of the role of the law in a diverse society. In his flexible, practical approach to legal reasoning, he moves the debate over fundamental values and principles out of the courts and back to its rightful place in a democratic state: the legislatures elected by the people.

Law's stories : narrative and rhetoric in the law

Abstract: The law is full of stories, ranging from the competing narratives presented at trials to the Olympian historical narratives set forth in Supreme Court opinions. How those stories are told and listened to makes a crucial difference to those whose lives are reworked in legal storytelling. The public at large has increasingly been drawn to law as an area where vivid human stories are played out with distinctively high stakes. And scholars in several fields have recently come to recognize that law's stories need to be studied critically. This notable volume-inspired by a symposium held at Yale Law School-brings together an exceptional group of well-known figures in law and literary studies to take a probing look at how and why stories are told in the law and how they are constructed and made effective. Why is it that some stories-confessions, victim impact statements-can be excluded from decisionmakers' hearing? How do judges claim the authority by which they impose certain stories on reality? Law's Stories opens new perspectives on the law, as narrative exchange, performance, explanation. It provides a compelling encounter of law and literature, seen as two wary but necessary interlocutors.

The Influence of Stare Decisis on the Votes of United States Supreme Court Justices

Abstract: Theory: We test arguments from the legal model claiming that United States Supreme Court justices will follow previously established legal rules even when they disagree with them; i.e., that they are influenced by stare decisis. Hypothesis: Because of the institutional features facing Supreme Court justices, we argue that justices who dissent from or otherwise disagree with Supreme Court precedents established in landmark cases are free not to support those decisions in subsequent cases. Methods: A systematic content analysis of the votes and opinions of dissenting Supreme Court justices in a random sample of landmark decisions and their progeny. Results: Overwhelmingly, Supreme Court justices are not influenced by landmark precedents with which they disagree. We replicate the research for nonlandmark decisions and find similar results. Alone among the justices studied, only Potter Stewart and Lewis Powell show any systematic support for stare decisis at all.

Emotional events and emotions in autobiographical memories

Abstract: “And the question which I have for you (Professor Anita Hill) is how reliable is your testimony in October of 1991 on events that occurred 8, 10 years ago, when you are adding new factors, explaining them by saying you have repressed a lot?,” asked Senator Specter. (Republicans and Democrats alternate in questioning, 1991). It is October 11, 1991, and the U.S. Senate Judiciary Committee is considering the controversial nomination to the Supreme Court of Judge Clarence Thomas. Toward the end of the nomination process, there is a surprise witness. An attorney, Anita Hill, who used to work for Thomas, claims he sexually harassed her a decade earlier. Hill, now a University of Oklahoma law professor, reluctantly agrees to testify in front of the Senate Judiciary Committee, and much of the nation watches spellbound as she testifies on television. “My working relationship became even more strained when Judge Thomas began to use work situations to discuss sex. … His conversations were very vivid. He spoke about acts that he had seen in pornographic films involving such matters as women having sex with animals and films showing group sex or rape scenes. … One of the oddest episodes I remember was an occasion in which Thomas was drinking a Coke in his office.

The Norm of Stare Decisis

Abstract: Theory: Precedent might affect Supreme Court decision making in a number of ways. One conception, the conventional view scrutinized by Segal and Spaeth, sees precedent as the primary reason why justices make the decisions that they do. A second regards precedent as a normative constraint on justices acting on their personal preferences. On this account, justices have a preferred rule that they would like to establish in the case before them, but they strategically modify their position to take account of a norm favoring respect for precedent in order to produce a decision as close as is possible to their preferred outcome. Hypothesis: If precedent is a norm, researchers would be unlikely to detect its presence by conventional examinations of the vote. Rather, it would manifest itself throughout the decision making process in some of the following ways: attorneys' attention to precedent and justices' appeals to and respect for the doctrine. Methods: Counts of attorneys' use of authorities in written briefs, of justices' appeals to precedent during conference discussion, of justices' invocation of precedent in their opinions, anid of the Court's alterations of stare decisis. Results: Since the data support our account of stare decisis as a norm that structures judicial decisions, we question research designs that focus solely on how precedent affects the disposition of cases.

Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-Analytic Perspective

Abstract: Recent aggregate-level research on the United States Supreme Court suggests that shifting tides of public opinion can have important effects on Supreme Court decisions. Moreover, these effects can be both direct (i.e., unmediated by other institutions) and indirect (i.e., mediated through presidential elections and subsequent judicial appointments). This research extends this inquiry by examining the influence of public opinion on individual members of the Supreme Court during the period 1953-1992. Although the majority of justices during this period show little or no evidence of public opinion effects, a significant minority of justices show substantial effects. As predicted by social psychological theories, the impact of public opinion is greatest among moderate justices who are likely to hold critical swing positions on the Court. The effects of public opinion are in addition to significant agenda effects and suggest important refinements in the standard attitudinal model of judicial decision making.

Politics and Judgment in Federal District Courts

Abstract: Are appointment politics and court decisions linked? Do presidents use judicial appointments to shape their policy agendas? C. K. Rowland and Robert Carp provide definitive answers to these questions and, in the process, provide a new paradigm for the study of federal jurisprudence. As the authors remind us, since the Judiciary Act of 1789, federal trial judges have been politically appointed, a process frequently the object of partisan scorn. Marshall's famous "Marbury v. Madison" case was triggered by the highly politicized appointment of William Marbury. FDR tried to protect his New Deal programs by choosing judges sympathetic to his political philosophy. Nixon and Carter were accused of nominating judges on the basis of ideological "litmus tests." And Reagan attracted relentless criticism to his own district-court appointments. From Woodrow Wilson to George Bush, Rowland and Carp examine the voting patterns of these presidentially appointed trial judges. Working from attorney interviews and more than 45,000 court rulings from 1933 to 1988-the largest and most current database available-they document the undeniable link between politics and jurisprudence in the federal lower courts. Rejecting the outmoded and reductionist attitudinal (or behavioral) model for a new one based on cognitive psychology, the authors argue that federal trial judges' decisions do not automatically reflect the policies and ideologies of that judge's presidential appointer. They show, instead, that ideology influences but does not predetermine or control judicial decision-making. They demonstrate further that, while the attitudinal model can help us understand judicial behavior at the appellate and Supreme Court level, it's simply incompatible with fact-finding, the primary duty of trial judges. In an era of expanding power and influence for federal trial judges, declining faith in our legal system, and increasingly divisive partisan politics the federal judiciary and its appointed judges will remain the focus of intense public scrutiny. This book shows us just how such analysis should be conducted.

Measuring Political Preferences

Abstract: Theory: When analysts adopt surrogates of actors' political preferences for purposes unanticipated by the inventors of those measures, they often stretch (but not explicitly assess) the range of reliability and validity. Hypotheses: The consequences pushing measures beyond their intended purposes may significantly impact research findings, as well as the conclusions drawn from those findings. Methods: "Methodological audit" of measures developed by Segal and Cover (1989) to represent the political preferences of justices on the United States Supreme Court. Mainly regression analysis using the Segal/Cover scores and vote data drawn from the United States Supreme Court Judicial Database. Results: Analysts would be well advised to weigh carefully whether adequate tests have been performed before adopting others' preference measures for their own research. More specific conclusions are: 1) scholars should invoke the Segal/Cover scores in the set of circumstances indicated by their developers: aggregated individual-level decisions in civil liberties cases; and 2) students of the judicial process who seek to explore phenomena other than aggregated individual-level voting in civil liberties cases ought to give serious thought to devising new surrogates for judicial preferences.

The Supreme Court and Federal Administrative Agencies: A Resource-Based Theory and Analysis of Judicial Impact

Abstract: Theorv: Government bureaucracies are strategic and implement Supreme Court opinions based upon the costs and benefits of alternative policy choices. Agencies develop these expectations from prevailing resource environments and bureaucracies are more likely to establish larger policy change when resources favor the Court because the costs of not changing their policies appear larger. Hypotheses: The amount of bureaucratic policy change due to Court opinions is a function of: (1) attributes of Supreme Court opinions-specificity of Court-ordered policy change, basis of opinions, remands, and dissents; (2) agency characteristics-policy preferences, type of proceedings, and time preferences; and (3) external actors-amicus curiae, opposing litigants, Congress, and presidents. Methods: An Ordered Probit analysis tests a multivariate model of the impact of every Supreme Court opinion reversing or remanding a federal agency decision from the 1953 through 1990 terms. Results: Agency policy change after Court opinions is influenced by the specificity of Supreme Court opinions, agency policy preferences, agency age, and amicus curiae support.

The shepherding of local public opinion: The Supreme Court and Lamb's Chapel

Abstract: We argue that the standard methodology for assessing the impact of Supreme Court decisions on public opinion, which relies on national surveys to measure public attitudes before and after relevant Court decisions, fails, among other grounds, to account for the fact that the overwhelming majority of Court decisions speak to particular constituencies only. We assess the impact of the Supreme Court's decision in Lamb's Chapel v. Center Moriches on the geographic constituencies involved in the case. We interviewed a random sample of residents in the town of Center Moriches and in the surrounding county of Suffolk, New York, before and after the decision. Consistent with the elaboration likelihood model of persuasion (Petty and Cacioppo 1986), we find that high levels of information about the decision increases support for the Court's decision among those for whom the decision is relatively less salient.

Not the whole story: The impact of justices' values on supreme court decision making

Abstract: A half century of empirical scholarship has now firmly established that the ideological values and the policy preferences of Supreme Court justices have a profound impact on their decisions in many cases. The prior work of Segal and Spaeth (both collaborative and independent) has made important contributions to our understanding of the linkages between these preferences and the justices' decisions (Rohde and Spaeth 1976; Segal 1984; Segal and Cover 1989; Segal and Spaeth 1993). Their most recent work (Segal and Spaeth 1996) provides additional evidence that for the set of important policy making cases they examine, the policy preferences of the justices have a significant effect on judicial votes. While this research makes it clear that preferences play an important role in the justices' decision making process, it does not establish that preferences eclipse precedent and legal doctrine completely. Segal and Spaeth (1996) argue that there has been no systematic empirical evidence of the role of legal factors, including precedent, at the Supreme Court level. Several studies, nevertheless, have provided bits of evidence that, when considered together, suggest that legal factors do matter. For example, Epstein and Koblyka's 1992 study of death penalty and abortion decisions indicates that the substantive legal arguments presented to the Court play an important role in doctrinal development and alteration. Similarly, H.W. Perry's 1991 study of the Court's agenda-setting process, which demonstrated the justices' concern for the jurisprudential, as well as the policy implications of cases selected for review, further reinforces the view that law and precedent matter in the Supreme Court. Although Perry did not investigate decisions on the merits, justices who place cases on the docket for jurisprudential reasons should be attentive to those same jurisprudential concerns at the merits stage. These studies may not provide a systematic assessment of precedent and the justices' decisions. But they do suggest that it matters. Regardless of this evidence in support of the legal model, Segal and Spaeth continue to adhere to their position that precedent has virtually no impact on the

May It Please the Chief? Opinion Assignments in the Rehnquist Court

Abstract: Theory: Majority opinion assignments made by the Chief Justice of the Supreme Court can be accounted for with both organizational and attitudinal models of behavior. Hypotheses: The likelihood that the Chief assigns an opinion to a justice depends upon the importance of each case, the size of the initial majority coalition, the timing of the decision, and each justice's expertise, efficiency, workload, and policy preferences. Method: A discrete choice model is used to test a multivariate model of the assignments made by Chief Justice William Rehnquist. Results: Chief Justice Rehnquist's assignments are determined by the Court's organizational needs, rather than the Chief's policy preferences.

The Misperception of Public Opinion Toward Capital Punishment: Examining the Spuriousness Explanation of Death Penalty Support

Abstract: Appellate courts in the United States, including the U.S. Supreme Court, have looked to public opinion and legislative trends to interpret the meaning of “evolving standards of decency” in determining whether capital punishment violates the Eighth Amendment's prohibition of cruel and unusual punishment. Bowers's spuriousness explanation of public support for capital punishment suggests that lawmakers and appellate judges have misinterpreted public sentiment. Specifically, although the public voices general support for the death penalty, that support vanishes when citizens are given the option of life in prison without possibility of parole coupled with a requirement of work and restitution. This research tests and finds support for Bowers's explanation with data from a sample of Indiana citizens. In addition, the study extends the model by presenting data from Indiana legislators showing that indeed lawmakers do misread the opinions of their constituents on this important issue.

On “I Know It When I See It”

Abstract: My subject is one of the most famous phrases in the entire history of Supreme Court opinions: "I know it when I see it." The phrase appears in Justice Potter Stewart's concurring opinion in Jacobellis v. Ohio,1 a pornography case decided by the Court in 1964. Although many people have appropriated the phrase?some approvingly, some not?no one has ever examined it in any way commensurate with its fame. But the phrase repays reflection. Aside from its provocative place in the history of pornography regulation, "I know it when I see it" invites us to reappraise the role of nonrational elements in judicial decisionmaking, which I think deserve both more attention and more acceptance than they typically enjoy. Such a reappraisal is my underlying purpose here. Jacobellis v. Ohio involved a theater owner who had been convicted for

The affirmative action debate

Abstract: * Introduction * Staying on the Path to Racial Equality Manning Marable * To Fulfill These Rights Lyndon B. Johnson * A Personal Footnote in History Arthur A. Fletcher * Affirmative Action in Context Cornel West * Affirmative Action in the Workplace Eleanor Holmes Norton * Performing Without a Net Glenn C. Loury * Diversity in Corporate America A. Barry Rand * Who Has Benefited from Affirmative Action in Employment? Heidi Hartmann * The Business of Affirmative Action Anthony W. Robinson * Personal Responsibility Robert L. Woodson Sr. * Why America Needs Set-Aside Programs Kweisi Mfume * An Experiment Gone Awry William Bradford Reynolds * Standing in the Right Place Deval L. Patrick * Race and the Supreme Courts 1994-95 Term Elaine R. Jones * The Supreme Court Ruled Correctly in Adarand Todd S. Welch * The Minority-Majority Society Pete Wilson * Why Women Need Affirmative Action Judy L. Lichtman, Jocelyn C. Frye, and Helen Norton * Invisible Latinos: Excluded from Discussions of Inclusion Harry P. Pachon * Beyond the Model Minority Myth Theodore Hsien Wang and Frank H. Wu * Sitting In for Diversity Victoria Valle * The Color Line and the Thin Blue Line Wade Henderson * Affirmative Action in the Army: Why It Works Charles Moskos * Tracing the Politics of Affirmative Action Linda Faye Williams * Mend It, Dont End It Bill Clinton * The Meaning of American Equality Charles T. Canady * Race-Baiting and the 1996 Presidential Campaign Jesse L. Jackson Sr. * Affirmative Action: Why We Need It, Why It Is Under Attack Mary Frances Berry * Promoting Racial Harmony Linda Chavez * The Future of Affirmative Action Louis Harris

Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda

Abstract: Miranda v. Arizona is the Supreme Court’s most famous criminal law decision, spelling out the requirements for police interrogation of criminal suspects. Despite its fame, we have little empirical knowledge about how the decision has affected police interrogation in the years that followed. What percentage of suspects waives Miranda rights? How many confess? How important are confessions to the outcome of prosecutions? No one knows the answer. This Article provides answers to those questions. After a review of existing literature in Part I, Part II sets forth the methodology of the empirical study. Part III reports the specific findings, including assessments of custodial interrogations, noncustodial interrogations, police compliance with Miranda rules, and ultimate outcomes of criminal cases. Part IV assesses the importance of these findings with respect to the wisdom of Miranda. The Article concludes that the Miranda decision, despite the promises of the Court and its defenders, has yet to be empirically justified as the proper balance between the competing interests of criminal suspects and society at large.

The Educational Justification of Historically Black Colleges and Universities: A Policy Response to the U.S. Supreme Court.

Abstract: The Historically Black Colleges and Universities (HBCUs) have recently come under attack from the Supreme Court and the U.S. Department of Education, which have told states that they must either find an educational justification for the schools’ continued existence, or close them. Applying multivariate statistical techniques to a nationally representative sample of students attending HBCUs and Traditionally White Institutions (TWIs), this study finds that the schools may have an educational justification in that African American HBCU students are more likely than their counterparts at TWIs to pursue a postgraduate education and become professionals. African American HBCU students are, however, no more likely than their counterparts at TWIs to experience high levels of social interaction with faculty and other students, nor are they more likely to aspire to community activism.

Making Sense of the Antitrust-State Action Doctrine: Balancing Political Participation and Economic Efficiency in Regulatory Federalism

Abstract: Author(s): Inman, Robert P.; Rubinfeld, Daniel L. | Abstract: This article examines the problem of designing federalist regulatory policies (in particular, making sense of the current antitrust state action doctrine) from the perspective of a well-articulated theory of federalism respecting the twin values of political participation and economic welfare. The conflict between state and federal regulatory interests has been longstanding in U.S. constitutional history. This conflict has typically been resolved by a Constitutional interpretation in which federal regulations trump their state counterparts -- witness the Supremacy Clause of the U.S. Constitution which resolves conflicts in favor of federal law. At the other extreme, however, has been the "state action" doctrine, which resolves the tension between federal antitrust regulations and the states' sometimes anticompetitive regulation of business activities in favor of the states. Despite this disparity, the Supreme Court has thus far been largely unwilling to undertake a substantive balancing test between such state and federal regulations. This is especially surprising in the realm of antitrust, where federal and state antitrust laws come directly into conflict with state and local economic regulations. Does the present state action doctrine provide the foundation for making good federalism policy? We will argue that it does not. (Texas Law Review, May 1997) Contact the Law and Economics Program at Boalt Hall, UC Berkeley, Berkeley, CA 94720 for a copy of this paper.

Political violence, order, and the legal construction of public space: power and the public forum doctrine

Abstract: This paper presents a historical geography of the legal construction of public space I argue that to understand the nature of the laws and court decisions that govern political activity in public space, it is necessary to examine that law not in isolation, but in relation to the social struggles over and in public space that forced legal decision making I begin by examining a recent Supreme Court decision concerning the rights of anti-abortion protestors and show how that decision was built on a long history of controlling dissent—particularly the dissent of unionizing and striking workers—rather than on a history of protecting the right to assembly and speech in public space The legal structure of public space derives first from imputing “violence” to those who dissent, and then seeking ways to control that dissent in the name of protecting property rights I argue, therefore, that it has only been by actively challenging—on the streets and in the courts-legal definitions of appropriate behavior in pu

Justices' Responses To Case Facts: An Interactive Model

Abstract: In this study we evaluate the generalizability of the attitudinal model as explicated in the United States Supreme Court by assessing the extent to which state supreme court justices' responses to case facts are conditioned not only by their ideological preferences but also by the political environments within which the cases are heard. Using probit analysis, we examine the votes of supreme court justices in eight states (Arizona, California, Illinois, Kentucky, Louisiana, North Carolina, Ohio, and Texas) from 1983 through 1988 in the death penalty decisions issued by these courts. We find that justices do not respond uniformly to certain case facts when deciding between sentences of life or death for defendants convicted of capital crimes. Instead, justices' responses to case facts vary according to their individual partisan preferences and the ideological climates within which they operate. In other words, contextual forces are important direct and indirect influences on judicial behavior, and the attit...

Antidiscrimination Laws and Social Research on Disability: The Minority Group Perspective

Abstract: In recent years, assessments of the difficulties confronting disabled persons have been altered both by the passage of antidiscrimination laws and by an emerging minority group model, based on a sociopolitical definition of disability, that has challenged studies shaped by the functional limitations paradigm. Unlike the latter orientation, the sociopolitical definition indicates that stigmatizing attitudes are the primary source of discrimination against disabled individuals. Both legal scholars and behavioral scientists also have neglected attitudinal research that seems at least comparable to the evidence cited by the Supreme Court to support the Brown decision. Further investigations based on the postulates of the minority group model and the concept of aesthetic anxiety may provide a means of combatting the effects of unconscious aversion toward disabled people in the courts.

Retesting Segal and Spaeth's Stare Decisis Model

Abstract: Segal and Spaeth's (1996) innovative article constitutes the most ambitious attempt to date to empirically test whether stare decisis influences the votes of the justices on the United States Supreme Court. These two scholars inspect a 40% random sample of major, nonunanimous decisions of the Court in the 1953 through 1995 era as well as the progeny of these cases, i.e., orally argued, full opinion cases that applied "the holding of the majority or plurality opinion" of the major case. They test whether the dissenting justices in Case 1 (the major case) support the precedent of Case 1 in Case 2 (the progeny case) or vote the same way as they did in Case 1, i.e., vote their "preferences." Note two characteristics of their clever research design. First, they treat situations in which the justices' preferences (based on their vote in Case 1) indicates that they will vote one way and conformity to precedent indicates that they vote the other way. This is a productive way to proceed. For the best way of showing that a precedent is influential is to focus on the situation when conformity to precedent is in conflict with the justices' preferences. Second, Segal and Spaeth focus on major cases. They state that they chose these cases "because they are more likely to establish precedential guidelines for future cases and because they are more likely to actually generate progeny that we can analyze," (1996, 976). In addition, the rule of the law set forth in the major cases is likely to be sufficiently unambiguous and sufficiently dramatic that the justices in Case 2 will be forced to either uphold the precedent or refuse to do so. The justices cannot simply ignore the precedent.' Segal and Spaeth discover that justices vote their preferences 90.8%

Slaying the Dragon: Segal, Spaeth and the Function of Law in Supreme Court Decision Making

Abstract: In 1961 Harold Spaeth published an article in the predecessor of this journal that concluded that an examination of the votes of Supreme Court justices was, ". . . protection against the subjectivity which qualitative techniques of analysis provided. The result is the attainment of a higher degree of reliability and validity in connection with measurement-quantitative techniques than is otherwise possible" (Spaeth 1961, 180). Shortly thereafter he published articles that not only quantitatively described the justices' voting behavior but that began a quest for an explanatory model of Supreme Court decision making. In these articles he considered that the justices' votes on the merits of selected categories of cases ". . . may be motivated by considerations other than those of a legal character" (Spaeth 1963a, 290) or ". . . by a single politically defined variable . . ." (Spaeth 1963b, 100). By 1976, he and a colleague defined the motivating factor as an "attitude" or an instrumental (change-oriented) policy preference which determines a vote when the simulation provided by an encounter with an "attitude object" or a class of litigants and an "attitude situation" or factual issue raised in a case (Rohde and Spaeth 1976, 76). With the publication of The Supreme Court and the Attitudinal Model (1993), Jeffrey Segal joined Spaeth to compile an exceptionally sophisticated collection of evidence in support of the thesis that political attitudes are the single important variable in Supreme Court justices' decision making. To ascertain the effect of judicial attitudes on voting behavior, Segal and Spaeth contrasted the explanatory power of their "attitudinal model" to a "legal model" of judicial decision making. The legal model assumes that judicial votes result from the application of use of professional interpretative techniques, or modes of reasoning from legal principles as taught in law schools, to the interpretation of various sorts of legal texts. As several critics have pointed out (Canon 1993, 99; Rosenberg 1994, 7; Smith 1994, 8-9), however, they did not empirically test the legal model. Rather, they attempted to provide evidence of the influence of political attitudes on the justices' voting behavior. Even in their most detailed discussion of the legal model (Segal and Spaeth 1993, 33-64, largely repeated in Spaeth 1995, 297-305), they did not present the legal model as a set of empirically testa-

Setting Boundaries between Science and Law: Lessons from Daubert v. Merrell Dow Pharmaceuticals, Inc.

Abstract: In Daubert v. Merrell Dow Pharmaceuticals, Inc., the U.S. Supreme Court made its first major pronouncement on the evaluation of scientific evidence, calling on judges to act as gatekeepers for scientific knowledge and validity, despite lack of scientific training among judges. Daubert offers the science studies community a case study for examining how judges (and scientists acting as experts) engage in boundary-work and construct scientific validity. In constructing scientific validity under Daubert, judges must evaluate the scientific method behind a particular scientific claim, and will look to the parties' experts and the relevant scientific community for assistance. To combat the oft-cited problem of the battle of the experts, judges may be tempted to obtain assistance from court-appointed neutral experts, an inquisitorial (rather than adversarial) system in the civil law tradition of many European countries. The judicial evaluation of scientific evidence, the resulting construction of scientific vali...

The impact of state-level restrictions on abortion

Abstract: This research examines 23 different laws passed by state governments in an effort to restrict the number of abortions. It assesses both laws passed and laws actually enforced after the Supreme Court permitted states to restrict access to abortion in 1989. None of the policy actions by state governments has had a significant impact on the incidence of abortion from 1982 to 1992. Abortion rates continue to reflect past abortion rates, the number of abortion providers, whether the state funds abortions for Medicaid-eligible women, urbanism, and racial composition of the population. Recent restrictive policies have not affected these trends.

Police Interrogation in the 1990s: An Empirical Study of the Effects of Miranda

Abstract: Miranda v. Arizona is the Supreme Court’s most famous criminal law decision, spelling out the requirements for police interrogation of criminal suspects. Despite its fame, we have little empirical knowledge about how the decision has affected police interrogation in the years that followed. What percentage of suspects waives Miranda rights? How many confess? How important are confessions to the outcome of prosecutions? No one knows the answer. This Article provides answers to those questions. After a review of existing literature in Part I, Part II sets forth the methodology of the empirical study. Part III reports the specific findings, including assessments of custodial interrogations, noncustodial interrogations, police compliance with Miranda rules, and ultimate outcomes of criminal cases. Part IV assesses the importance of these findings with respect to the wisdom of Miranda. The Article concludes that the Miranda decision, despite the promises of the Court and its defenders, has yet to be empirically justified as the proper balance between the competing interests of criminal suspects and society at large.

The Claim of Issue Creation on the U.S. Supreme Court

Abstract: W T Ze argue that a variant of the sua sponte doctrine, namely, the practice disfavoring the creation of issues not raised in the legal record, is a norm with substantial consequences for the U.S. Supreme Court. Without it, justices would act considerably more like legislators, who are free to engage in "issue creation, " and less like jurists, who must wait for issues to come to them. Yet, McGuire and Palmer claim that justices engage in issue creation in a "significant minority" of their cases. We dispute this finding because we think it is an artifact of the way McGuire and Palmer collected their data. Indeed, for virtually every case in which they found evidence of issue creation, we show that the issue was actually present in at least one of the litigants' briefs. This suggests that justices may be policy seekers, but they are not policy entrepreneurs; and that briefs filed by third parties (such as amici curiae) are generally not a source of important issues considered by the Court.

The Supply Side of Congressional Redistricting: Race and Strategic Politicians, 1972-1992

Abstract: The goal of empowering minorities through redistricting has been attacked from all sides. The Supreme Court recently called the North Carolina redistricting plan "political apartheid" (Shaw v. Reno 1993) while critics on the left reject the approach because it merely provides descriptive rather than substantive representation (Guinier 1991a, 1134-53). This article offers a new perspective from which to assess the viability of this approach to black empowerment: the supply side of redistricting. Using a unique data set from the 1972, 1982, and 1992 congressional elections in black districts, we examine how individual politicians respond to the changing electoral context imposed by new district lines and how, in turn, their decisions shape the electoral choices and outcomes in a given district. We argue that individual politicians acting in their own self-interest may tip the balance of electoral power to black and white moderates in the district. We find that this outcome prevails in approximately half of ...

Mothers and Authors: Johnson v. Calvert and the New Children of Our Imaginations

Abstract: What is a mother? Who is the mother of a child when one woman provides the ovum for fertilization and another carries the baby to term? This was the issue before the California Supreme Court in 1993 in the surrogate mother case of Johnson v. Calvert. Faced with these conflicting biological claims, the court shifted its inquiry from the physical to the mental realm. Who had first intended to bring the child into the world? Who was the "originator of the concept" of the child? But in formulating the issue in this manner, the court was, as one justice pointed out, implicitly invoking the paradigm of intellectual property law the owner of a creative work is the originator or author of it and this amounted, the dissenting justice argued, to the treatment of a child as property.l Johnson v. Calvert is an extraordinarily resonant case. It echoes King Solomon's famous judgment when confronted with two women who each claimed to be the mother of a child, and it also echoes Athene's judgment in The Eumenides when she rules that Orestes is not related to his mother Clytaemestra. It raises questions about our understanding of the relationship between nature and technology, and it challenges conventional assumptions about gender and reproduction how exactly is a