Showing papers on "Supreme court published in 1997"

The choices justices make

Abstract: "The Choices Justices Make" is a groundbreaking work that offers a strategic account of Supreme Court decision making. Justices realize that their ability to achieve their policy and other goals depends on the preferences of other actors, the choices they expect others to make, and the institutional context in which they act. All these factors hold sway over justices as they make their decisions, from which cases to accept, to how to interact with their colleagues, and what policies to adopt in their opinions. "Choices" is a thought-provoking, yet nontechnical work that is an ideal supplement for judicial process and public law courses. In addition to offering a unique and sustained theoretical account, the authors tell a fascinating story of how the Court works. Data culled from the Court's public records and from the private papers of Justices Brennan, Douglas, Marshall, and Powell provide empirical evidence to support the central argument, while numerous examples from the justices' papers animate the work.

The puzzle of judicial behavior

Abstract: From local trial courts to the United States Supreme Court, judges' decisions affect the fates of individual litigants and the fate of the nation as a whole. Scholars have long discussed and debated explanations of judicial behavior. This book examines the major issues in the debates over how best to understand judicial behavior and assesses what we actually know about how judges decide cases. It concludes that we are far from understanding why judges choose the positions they take in court.Lawrence Baum considers three issues in examining judicial behavior. First, the author considers the balance between the judges' interest in the outcome of particular cases and their interest in other goals such as personal popularity and lighter workloads. Second, Baum considers the relative importance of good law and good policy as bases for judges' choices. Finally Baum looks at the extent to which judges act strategically, choosing their own positions after taking into account the positions that their fellow judges and other policy makers might adopt. Baum argues that the evidence on each of these issues is inconclusive and that there remains considerable room for debate about the sources of judges' decisions. Baum concludes that this lack of resolution is not the result of weaknesses in the scholarship but from the difficulty in explaining human behavior. He makes a plea for diversity in research.This book will be of interest to political scientists and scholars in law and courts as well as attorneys who are interested in understanding judges as decision makers and who want to understand what we can learn from scholarly research about judicial behavior.Lawrence Baum is Professor of Political Science, Ohio State University.

A Matter of Interpretation: Federal Courts and the Law

Abstract: The 1997 book, A Matter of Interpretation: Federal Courts and the Law, is framed around a clear, accessible essay entitled “Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws,” written by Supreme Court Justice Antonin Scalia. The second section of the book is composed of responses to Justice Scalia’s essay by such diverse, prominent scholars as Gordon S. Wood, Laurence H. Tribe, Mary Ann Glendon, and Ronald Dworkin; edited by AmyGutmann, the book concludes with Justice Scalia’s response to each comment.

Separation-of-Powers Games in the Positive Theory of Congress and Courts

Abstract: The hallmark of the new positive theories of the judiciary is that Supreme Court justices will frequently defer to the preferences of Congress when making decisions, particularly in statutory cases in which it is purportedly easy for Congress to reverse the Court. Alternatively, judicial attitudinalists argue that the institutional structures facing the Court allow the justices to vote their sincere policy preferences. This paper compares these sincere and sophisticated models of voting behavior by Supreme Court justices. Using a variety of tests on the votes of Supreme Court justices in statutory cases decided between 1947 and 1992, I find some evidence of sophisticated behavior, but most tests suggest otherwise. Moreover, direct comparisons between the two models unambiguously favor the attitudinal model. I conclude that the justices overwhelmingly engage in rationally sincere behavior.

The Interplay of Preferences, Case Facts, Context, and Rules in the Politics of Judicial Choice

Abstract: In this paper, we explore linkages between electoral politics and judicial voting behavior in the context of models that take into account personal, contextual, institutional, and case-related influences on courts. Using probit (ordered and binary), we examine the votes cast in death penalty decisions by supreme court justices in eight American states from 1983 through 1988 We anticipate and find evidence that institutional features are prominent in shaping the distribution of institutional preferences Fundamentally, justices have predispositions that are consistent with the states' electoral and ideological environments Moreover, these institutional arrangements subsequently enhance or restrict opportunities for individual members, once selected, to exhibit their predispositions Personal preferences notwithstanding, individual justices' support for the death penalty is affected by competitive electoral conditions and institutional arrangements that create linkages with the political environment Finally, ...

The Supreme Court Speaks — Not Assisted Suicide but a Constitutional Right to Palliative Care

Abstract: The Supreme Court has unanimously ruled that there is no constitutional right to physician-assisted suicide.1,2 Unexpectedly, however, the Court did much more than simply uphold the New York and Wa...

The Dynamics of Public Support for the Supreme Court

Abstract: Past empirical studies of factors affecting public support for the Supreme Court suggest: (1) the Supreme Court's decisions are more often congruent than incongruent with public opinion; (2) public response to decisions influences subsequent levels of institutional support; (3) negative reactions more strongly affect institutional support than do positive reactions; and (4) support is subject to value-based regeneration due to a link between the Court and basic democratic values. Although a wealth of empirical studies underlies these propositions, such findings appear inconsistent with the observed character of aggregate public support for the Court-namely, that levels of support tend to be high and that support is quite stable over time. To explore this tension, we construct a dynamic model of public support for the Supreme Court, guided by our four empirically derived propositions. Model analysis and estimation demonstrates that an active and occasionally controversial Supreme Court can maintain aggrega...

'Driving While Black' and (All) Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops

Abstract: Under a Constitution that restrains the government vis-a-vis the individual and that puts some limits on what the authorities may do in the pursuit of the guilty, the power of the police to stop any particular driver, at almost any time, it seems oddly out of place. And with the words "equal justice under law" carved into the stone of the Supreme Court itself, one might think that the use of police power in one of its rawest forms against members of particular racial or ethnic groups might prompt the Court to show some interest in curbing such abuses. The defendant-petitioners presented both of these arguments-the almost arbitrary power over any driver inherent in the "could have" approach, and the racially biased use of traffic stops-to the Court. Yet the Court paid little attention to these obvious implications of its decision. Whren is more than a missed opportunity for the Court to rein in some police practices that strike at the heart of the ideas of freedom and equal treatment; Whren represents a clear step in the other direction-toward authoritarianism, toward racist policing, and toward a view of minorities as criminals, rather than citizens.

Amicus Curiae and the Role of Information at the Supreme Court

Abstract: Conventional wisdom holds that amicus briefs provide the Supreme Court with information that is not otherwise supplied by litigants and that the Court finds this information useful. While several studies explore the information that amici contribute to the Court in certain notable cases, judicial scholars have no systematic knowledge regarding the nature of information furnished by amici or the Court's use of it in its opinions. We argue that amici curiae briefs are important because they reduce informa tion problems at the Court by helping the justices anticipate the impact of their opinions. To test conventional wisdom, we examined all party briefs on the merits and amicus briefs filed in the 1992 term. We found that the conventional wisdom is largely inaccurate. First, amicus briefs often con tribute unique arguments, but they also commonly reiterate their party's brief. Second, the Court's majority opinions are not more likely to use ar guments from amicus briefs that offer new information. In fact, t...

Competent care for the dying instead of physician-assisted suicide.

Abstract: While the Supreme Court is reviewing the decisions by the Second and Ninth Circuit Courts of Appeals to reverse state bans on assisted suicide, there is a unique opportunity to engage the public, h...

The Public and the Supreme Court: Individual Justice Responsiveness to American Policy Moods

Abstract: Theory: Individual Supreme Court justices care about policy, but they must compete with popular institutions for policy control. They also care about their institution. In order to secure as much as they can of policy goals and protect their institution, they adjust policy decisions at the margins in response to mass public opinion. Hypotheses: Individual Supreme Court justice liberalism depends on shifts in mass public opinion through time. Methods: We test hypotheses using pooled time series cross-section analysis, with the individual justice-term as the unit of analysis. Results: Controlling for the changing composition of the Court, attitudinal inertia of justices, and the strength of judicial ideologies, we find that public opinion directly affects decisions by individual members of the Court. We show that the result holds across various issue areas, is not restricted to only a few justices, and that the justices' responses are relatively quick with a lag of only one term.

"Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops

Abstract: Under a Constitution that restrains the government vis-a-vis the individual and that puts some limits on what the authorities may do in the pursuit of the guilty, the power of the police to stop any particular driver, at almost any time, it seems oddly out of place. And with the words "equal justice under law" carved into the stone of the Supreme Court itself, one might think that the use of police power in one of its rawest forms against members of particular racial or ethnic groups might prompt the Court to show some interest in curbing such abuses. The defendant-petitioners presented both of these arguments-the almost arbitrary power over any driver inherent in the "could have" approach, and the racially biased use of traffic stops-to the Court. Yet the Court paid little attention to these obvious implications of its decision. Whren is more than a missed opportunity for the Court to rein in some police practices that strike at the heart of the ideas of freedom and equal treatment; Whren represents a clear step in the other direction-toward authoritarianism, toward racist policing, and toward a view of minorities as criminals, rather than citizens.

The Supreme Court and Physician-Assisted Suicide — Rejecting Assisted Suicide but Embracing Euthanasia

Abstract: In rejecting a constitutional right to physician-assisted suicide earlier this year,1,2 the U.S. Supreme Court appeared to preserve the distinction between the withdrawal of life-sustaining treatment and assisted suicide or euthanasia. In fact, however, the Court undermined the distinction when it endorsed terminal sedation. Terminal sedation seems consistent with traditional medical care but often is a form of euthanasia. Moreover, it is a practice that is ethically more problematic than assisted suicide or voluntary euthanasia. The Supreme Court's Opinions In deciding against a right to assisted suicide, the Court faced the claim that such a right is necessary for . . .

The Life of the Law: Judicial Politics and Legal Change

Abstract: To what extent is legal change influenced by judicial politics? This question, as initially posed by legal realists, provided the stimulus for much of the early study of the judicial process Although judicial scholars have since explored the impact of judicial policy views, the litigation environment, and the political environment, no systematic analysis of the impact of these factors on legal change has been undertaken. I develop a measure of legal change and use it to test the impact of judicial politics by examining search and seizure cases decided by the Supreme Court between 1962 and 1989 Using a multinomial logit model, I find that several aspects of the judicial process, particularly the Court's political composition, legal constraints, litigant resources, attorney experience, amicus support, and presidential preferences, affect the direction of legal change.

One Voice Among Many: The Supreme Court's Influence on Attentiveness to Issues in the United States, 1947-92

Abstract: Theory: As with other United States political institutions, the Supreme Court confers and withdraws benefits, both material and symbolic, and can under some circumstances rearrange the ecology of political influence. When these effects occur in the extreme, the result can be an expansion of conflict and a shift in system-wide attention to the underlying issues. Hypothesis: "Politically significant" Supreme Court decisions produce large and enduring shifts in system-wide attention to the underlying issues. Methods: We evaluate the effects of all "politically significant" decisions, gauged by the CQ Guide to the US Supreme Court, on systemic attention to the underlying issues. We measure systemic attention using monthly indicators of media coverage of school desegregation, freedom of speech/censorship, and church/state issues. Box-Tiao (1975) methods are used to evaluate the impact of these decisions on systemic attention. Results: We find long-term shifts in issue attention associated with four decisions, dealing respectively with school desegregation, flag-burning, religious instruction in public schools, and public school prayer. Each decision conferred and withdrew benefits, rearranged the distribution of political influence, and significantly expanded the scope of conflict for the underlying issues.

Judging Science: Scientific Knowledge and the Federal Courts

Abstract: What is "scientific knowledge" and when is it reliable? These deceptively simple questions have been the source of endless controversy. In 1993, the Supreme Court handed down a landmark ruling on the use of scientific evidence in federal courts. Federal judges may admit expert scientific evidence only if it merits the label "scientific knowledge." The testimony must be scientifically "reliable" and "valid." This book is organized around the criteria set out in the 1993 ruling. Following a general overview, the authors look at issues of fit--whether a plausible theory relates specific facts to the larger factual issues in contention; philosophical concepts such as the falsifiability of scientific claims; scientific error; reliability in science, particularly in fields such as epidemiology and toxicology; the meaning of "scientific validity"; peer review and the problem of boundary setting; and the risks of confusion and prejudice when presenting science to a jury. The book's conclusion attempts to reconcile the law's need for workable rules of evidence with the views of scientific validity and reliability that emerge from science and other disciplines.

Deciding Life and Death in the Courtroom: From Quinlan to Cruzan, Glucksberg, and Vacco—A Brief History and Analysis of Constitutional Protection of the 'Right to Die'

Abstract: This article analyzes judicial determinations on the "right to die" fromQuinlan to Cruzan, Glucksberg, and Vacco. The body of law known as right-to-die cases extends ordinary treatment refusal doctrine to end-of-life decisions. The courts, having affirmed a right to refuse life-sustaining treatment, held that certain categorical distinctions that had been drawn lacked a rational basis. No rational distinction could be made between competent vs incompetent patients, withholding vs withdrawing treatment, and ordinary vs extraordinary treatment. The courts, however, had persistently affirmed one categorical distinction: between withdrawing life-sustaining treament on the one hand and active euthanasia or physicianassisted dying on the other.In Washington v Glucksberg and Vacco v Quill, the Supreme Court unanimously held that physician-assisted suicide is not a fundamental liberty interest protected by the Constitution. Notably, five members of the Court wrote or joined in concurring opinions that took a more liberal view. The Court powerfully approved aggressive palliation of pain. The Supreme Court, hinting that it would find state legalization of physician-assisted suicide constitutional, invited the nation to pursue an earnest debate on physician assistance in the dying process.

Four Decades of Progress.. .and Decline: An Assessment of African American Educational Attainment

Abstract: Antoine M. Garibaldi, Howard University* In this, the 18th annual Charles H. Thompson lecture, Dr. Garibaldi charts African Americans' forward and backward movement in education since the 1954 Brown decision, noting both the obstacles and success factors that have shaped the contemporary Black experience in U.S. schools, colleges, and universities. He provides a sweeping review of K-12 data, examining the relationships between race, poverty, school location, course-taking patterns, and parental expectations on Black students' academic achievement. He also assesses African Americans' standardized achievement and college admissions test performance, college enrollment, and postsecondary and graduate degree attainment, highlighting the significant role of historically Black colleges. Over the last four decades, notable progress has been made in the educational attainment and achievement of African Americans. More African Americans are attending elementary and secondary schools; African Americans are graduating from high school at higher rates; more African American students are attending college, graduate, and professional schools; and there are more African American professionals in leadership roles as a result of expanded educational opportunities. Those positive results are due in large measure to the landmark 1954 Supreme Court decision in Brown v. Board of Education of Topeka, Kansas. That celebrated case was argued by Howard University alumnus Thurgood Marshall, the first African American Supreme Court Justice, and a host of other legal and educational scholars who were determined to reverse the 1896 Plessy v. Ferguson Supreme Court decision. The Brown decision not only opened the nation's school doors wide, it also provided the impetus for the elimination of "separate-but-equal" laws in employment, housing, voting rights, and related civil rights areas. Ironically, however, as we commemorate the 40th anniversary of the integration of de jure segregated schools such as Central High in Little Rock, Arkansas, most of our nation's public schools are more segregated than they were 40 years ago; and legislative attacks on affirmative action threaten the numerous gains in educational opportunity and civil rights made possible by Brown. Thus, there are fewer reasons to celebrate because of the perplexing signs of missed educational opportunities; declines in educational performance; lower than expected four-year college-going rates; and uneven undergraduate, postgraduate and first-professional degree attainment by gender for African Americans. Today I will describe the status of educational attainment of African Americans four decades after Brown, with an attempt to balance the gains and declines in progress so that prescriptions can be developed to remedy the educational problems that exist in our schools and communities. SCHOOL ENROLLMENT DEMOGRAPHICS As shown in Table I, the total U.S. public school enrollment during the 1993-94 school year was 43.5 million students, and the total private school enrollment was approximately 5 million students. Ninety-four percent (94%) of African American students, or almost 7.2 million young people, were enrolled in the nation's public schools, while the remaining 6%, or close to a half-million students (462,105), attended private schools (Frederick D. Patterson Research Institute, 1997). African American students represented 16.5% of all public school enrollments, and they accounted for 9.3% of private schools' student bodies. Though African Americans' 16.5% share may seem small when compared to the 66% of White students enrolled in public schools, it is important to note that approximately 30% of Black public school students are enrolled in schools in large central cities with populations of more than 400,000 people, and more than half of all Black public school students (56.2%) live in the South (Frederick D. Patterson Research Institute, 1997). …

The Supreme Court and Physician-Assisted Suicide — The Ultimate Right

Abstract: The U.S. Supreme Court will decide later this year whether to let stand decisions by two appeals courts permitting doctors to help terminally ill patients commit suicide.1 The Ninth and Second Circuit Courts of Appeals last spring held that state laws in Washington and New York that ban assistance in suicide were unconstitutional as applied to doctors and their dying patients.2,3 If the Supreme Court lets the decisions stand, physicians in 12 states, which include about half the population of the United States, would be allowed to provide the means for terminally ill patients to take their own lives, . . .

Explaining Federal Bureaucratic Compliance with Supreme Court Opinions

Abstract: Past research on bureaucratic compliance with Supreme Court opin ions offers few comprehensive theoretical frameworks and even fewer rigorous empirical tests. I argue that bureaucracies comply based on the costs or benefits of alternative ways of responding to the Court. Agencies develop these expectations from the environments within which they implement opinions, which I conceptualize as attributes of Court opin ions, agency characteristics, and external actors. I show that federal bu reaucracies generally comply with the Court, though they sometimes respond to the Court in self-interested ways. Using a probit model of agency implementation of Court opinions from the 1953 through 1990 terms, I also demonstrate that several factors explain whether agencies comply, including the nature of the Court's opinions, the characteristics of the responding agency, and support by societal interests. I further il lustrate that the absence of defiance or evasion most likely results from the interdependencies between ...

Frozen Rights in Canada: Constitutional Interpretation and the Trickster

Abstract: The trickster is alive and well. The Supreme Court of Canada illustrated this in the recent cases of R. v. Vanderpeet,1 R. v. Gladstone,2 R v. N.T.C. Smokehouse3 and R. v. Pamajewon4 when it considered how it would define Aboriginal rights "recognized and affirmed" under section 35(1) of the Canadian Constitution.5 Until these judgments were released, the country's highest court had supplied very little guidance concerning the test it would use to identify those rights protected by section 35(1). In 1982 Aboriginal rights were placed within Canada's newly patriated Constitutional Act, and outside of its Charter of Rights and Freedoms,6 at the insistence of many Aboriginal governments.7

Judicial review and coordinate construction of the constitution

Abstract: Theory: A Congress-centered model of coordinate construction of the Constitution is proposed to predict when legislation, that would reverse a decision of the Supreme Court, is brought to a vote in Congress. Hypotheses: Decision reversal of Supreme Court cases striking down law as unconstitutional are a function of federal power concerns, presidential position, the type of law struck down, public opinion, and interest group pressure. Methods: A two-stage model suggested by Achen (1987) for modeling two interrelated, dichotomous outcomes is used. Results: We find that Congress often does reverse Supreme Court rulings and that public opinion, the position of the president, federal power concerns, and the type of law struck down have the greatest effect on the likelihood that reversal legislation will come to a vote in Congress and will be passed.

Multiracial Couples: Black and White Voices

Abstract: ROSENBLATT, Paul C., Terri A. KARIS, Richard D.POWELL, MULTIRACIAL COUPLES: Black and White Voices. Thousand Oaks, CA: Sage Publications, 1995, 305 pp., $21.95 softcover / $44.00 hardcover. Reviewed by : DEBBIE STORRS * Interracial marriage has become more common in recent years, particularly after the U.S. Supreme Court struck down laws against interracial marriages in 1967. According to the US Census, black-white couples have quadrupled since 1970, raising important questions about the meaning of race and providing challenges to relationship norms. Multiracial Couples addresses these issues and adds to the growing literature concerning interracial relationships and interracial births. The authors provide a unique view of race relations through the accounts of 21 interracial couples. They meet their primary objective of giving voice and subjectivity to the volunteers in this study through the use of extensive quotations. The strength of this text is the personal and intimate view of the difficulties and joys of being in an interracial relationship. The book begins by revealing a paradoxical reality of interviewees' lives. On the one hand, individuals characterized their relationships as "ordinary," experiencing the typical problems and pleasures of any intimate relationship. On the other hand, the couples discussed how others often perceived them as unusual because of their interracial status. The main chapters focus on these extraordinary features of interracial relationships including raising biracial children, mediating the reactions of families, communities, and institutions, and responding to racism. Although the couples experienced forms of overt racism such as name calling, the dominant theme in the narratives is the more subtle disapproval of their relationships. One of the most immediate sources of disapproval came from the couples' family members. Both black and white families opposed relationships, but for different reasons and with various levels of intensity. Overall, black families were more accepting of interracial relationships than white families. Their concern mainly focused on what they perceived as black men's rejection of black women. White families, concerned with safety, children, and economic well-being, were much more likely to be opposed to the interracial relationship. Racial communities also disapproved of interracial relationships which provoked challenges to both black and white identity. For African Americans, marrying outside of one's race was often perceived as a sign of disloyalty. Despite this ostracism, African Americans articulated strong black identities. …

American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice

Abstract: * Preface * Acknowledgments * Chapter 1. Legal Masks, Legal Consciousness * Chapter 2. The Era of Defining Tribes, Their Lands, and Their Sovereignty * Chapter 3. The Era of Congressional Ascendancy over Tribes: 1886-1903 * Chapter 4. The Era of "Myths": Citizenship, Nomadism, and Moral Progress * Chapter 5. The Era of Judicial Backlash and Land Claims * Chapter 6. The Era of the Imperial Judiciary * Chapter 7. Removing the Masks * Appendix A. Cases Cited * Appendix B. Supreme Court Justices Authoring the Fifteen Opinions Analyzed * Notes * Glossary * References * Index

Out in force : sexual orientation and the military

Abstract: Can the U.S. military integrate gay personnel into its ranks and still accomplish its mission? In 1993, this question became the centre of a heated debate when President Clinton attempted to lift the long-standing ban on gays in the military. This debate persists because the compromise policy "Don't Ask, Don't Tell, Don't Pursue," faces serious legal challenges, and is likely to go to the Supreme Court before the end of the decade. Just below the surface of this debate rages a more general argument about the status of gay people in America. This volume refutes the notion that homosexuality is imcompatible with military service and that gay personnel would undermine order and discipline. Contributors seek to show that the ban on homosexual personnel could successfully be eliminated and they set forth a programme for implementation.

Antitrust and the Bounds of Power: The Dilemma of Liberal Democracy in the History of the Market

Abstract: Antitrust - introduction on the surface - the technical profiles in the foundations - the dilemma of liberal democracy Part 1 Technical profiles - the USA: protection of competition or of freedom or contract - from the common law to the Sherman Act, early years of the Sherman Act, prohibitions to protect market pluralism increase today's subtle weapons - the Chicago School, evolution in the Supreme Court, trends in recent cases, the present position in summary Part 2 Technical profiles - Europe: the heritage of history - Europe's industrial culture, the Freiburger Ordoliberalen School, early development of antitrust laws, antitrust in the European Community "restrictive" agreements - the normative machinery, vertical agreements, horizontal agreements abuse of a dominant position - "special responsibility", assessment of "dominant position", abuse as an "objective concept", individual types of abuse, in conclusion prohibitions of dominant position - mergers - the ban and its limits, antitrust against public monopolies Part 3 Antitrust and the bounds of power: drawing together the threads - original aims and later evolution, in the USA, in Europe, the limits to antitrust law, facing concentrated, competitive firms, changing markets - what remains? the dilemma of liberal democracy - the dilemma of liberal democracy within the dilemma of efficiency, towards autonomy of European antitrust from other common policies, the global market and tomorrow's antitrust

The Election of African Americans and Latinos To the U.S. House of Representatives, 1972-1994

Abstract: Past studies have shown that racially polarized voting results in African American and Latino congressional candidates rarely winning election outside of majority-minority districts. Analyz ing U.S. House of Representatives elections from 1972 through 1994 confirms these findings and shows that race, rather than socioeconomic factors highly correlated with race, accounts for racial polarization in congressional elections. Nonracial district characteristics bear virtually no relationship to the race of a district's representative. Even if socioeconomic differences among African Americans, Latinos, and Whites decline substantially, race will continue to play an important role in American elections. If the Supreme Court's decisions in Shaw v. Reno and its progeny reduce the number of majority-minority districts, then the number of minority repre sentatives probably will decline as well.

The Case for a Permanent International Truth Commission

Abstract: Supreme Court Justice Robert Jackson, the U.S. Chief Prosecutor at Nuremberg, said that one of the most important legacies of the international war crimes trials following World War II would be the documentation of the Nazi atrocities “with such authenticity and in such detail that there can be no responsible denial of these crimes in the future and no tradition of martyrdom of the Nazi leaders can arise among informed people.” Jackson said further that to establish an authoritative record of abuses to endure the test of time and withstand the challenge of revisionism, “we must establish incredible events by credible evidence.” The international community has principally used two methods to establish the record of grave human rights crimes following an international conflict or civil war: international prosecutions such as those conducted at Nuremberg and Tokyo following World War II, and more recently at The Hague, Netherlands, and in Arusha, Tanzania, following the conflicts in the former Yugoslavia and Rwanda; and commissions of inquiry, now commonly referred to as “truth commissions,” which investigate situations and submit reports of their findings but have no power to impose criminal fines or sentences.

Labor's Constitution of Freedom

Abstract: According to the standard story, the basic structure of modern constitutional law emerged from a clash between two great constitutional visions: the laissez-faire constitutionalism of the so-called Lochner Era and the progressive vision concisely summarized in footnote four of United States v. Carolene Products. The standard story omits a third great constitutional vision: labor's constitution of freedom. In the early twentieth century, American workers advanced their own interpretations of the Constitution, often in opposition to those of the Supreme Court. Workers did not wait for judicial approval to put their constitutional vision into practice. Having declared laws unconstitutional, they endeavored to strike them down through noncompliance and direct action. The article begins by setting forth a theoretical model of constitutional insurgency, focusing on the roles played by popular rights consciousness, direct popular power, and professional legal representation in achieving constitutional change. It then presents a detailed case study of constitutional insurgency. In January of 1920, the Kansas state legislature enacted the Kansas Industrial Court Act, the most ambitious piece of American labor legislation prior to the Wagner Act. Although the Industrial Court ruled in favor of workers more often than not, the American Federation of Labor declared the law unconstitutional under the Thirteenth Amendment, and ten thousand Kansas coal miners staged a four-month winter strike “against the political powers of the state of Kansas, monopoly, [and] the industrial court law.” The article tells the story and examines the dynamics of this insurgency from the level of the miners’ local unions on up to the United States Supreme Court.