Showing papers on "Supreme court published in 1999"

Race, redistricting, and representation : the unintended consequences of Black majority districts

Abstract: Since the creation of minority-dominated congressional districts in 1991, the Supreme Court has condemned the move as akin to "political apartheid", while many African-American leaders argue that such districts are required for authentic representation. In this treatment of the subject, David Canon shows that the unintended consequences of black majority districts actually contradict the common wisdom that whites will not be adequately represented in these areas. Not only do black candidates need white votes to win, but this crucial "swing" vote often decides the race. And, once elected, even the black members who appeal primarily to black voters usually do a better job than white members of walking the racial tightrope, balancing the needs of their diverse constituents. Ultimately, Canon contends, minority districting is good for the country as a whole. These districts not only give African Americans a greater voice in the political process, they promote a politics of commonality - a biracial politics - rather than a politics of difference.

Bad Kids: Race and the Transformation of the Juvenile Court

Abstract: Within the past three decades, social and legal changes have transformed the juvenile court from a nominally rehabilitative welfare agency into a second-class criminal court for young offenders. Recent efforts to "toughen" juvenile justice policies have resulted in increasingly harsh sanctions that fall disproportionately on minority youths. In this provocative new book, Barry Feld examines what went wrong with the juvenile court and proposes an alternative model for youth crime control and child welfare. The Progressive reformers who created the juvenile court a century ago saw children as relatively blameless and innocent. But recent decades of rising crime rates associated with urban decay have strained this tolerant view of young offenders. Feld relates the 1967 Supreme Court decision In re Gault to the broader social and legal changes associated with the civil rights movement and the Warren Court's "Due Process Revolution." Although gault mandated more elaborate procedural safeguards in delinquency hearings, ironically, those protections legitimated the imposition of more punitive sanctions. Since Gault, Feld argues, three decades of judicial, legislative, and administrative reforms have conducted a form of "criminological triage." At the "soft end," reforms have shifted noncriminal status offenders, primarily female and white, out of the juvenile justice system into a "hidden system" made up of private sector mental health and chemical dependency facilities. At the "hard end," states transfer increasing numbers of young offenders, disproportionately minorities, to criminal court for prosecution as adults. Meanwhile, juvenile courts punish more severely those delinquents-again disproportionately minorities-who remain within the increasingly criminalized juvenile justice system. Feld attributes the current state of affairs to a conceptual flaw inherent in the juvenile court. The juvenile justice system attempts to combine social welfare and social control functions in one organization, but inevitably fulfills both missions badly because of the inherent and irreconcilable contradictions between them. Progressive reformers situated the juvenile court on a number of cultural, legal, and criminological fault lines, where the ideas of child and adult, determinism and free will, immature and responsible, treatment and punishment collide. The past three decades have witnessed a shift from the former to the latter of these binary pairs in response to the racial transformation of cities, the increase in serious youth crime, and the erosion of the rehabilitative assumptions of the juvenile court. The solution, Feld argues, is to uncouple social welfare from criminal social control. States could try all offenders in one integrated criminal justice system with appropriate modifications to accommodate the youthfulness of younger defendants: a graduated, age-culpability sentencing system, separate youth correctional facilities, and the like. Formally recognizing youthfulness as a mitigating factor would provide youths with greater protections and justice than they currently receive in either the juvenile or criminal justice systems. At the same time such a strategy would enable public policies to address directly the social welfare needs of all young people.

The Politics of Supreme Court Nominations: A Theory of Institutional Constraints and Choices

Abstract: When a vacancy occurs on the Supreme Court, the president can attempt to use his power of nomination strategically in order to bring the Court in line with his own policy preferences. However, the president faces two constraints when attempting to do so. First, he may be constrained by the presence of continuing justices and the existing Court median. Second, he may be constrained by the Senate, which must approve his nominee. In this paper we develop and test a theory that examines the conditions under which a president is constrained in his choice of a nominee. Our results show that presidents can, and do, behave strategically with respect to Supreme Court nominations.

Colour-Coded: A Legal History of Racism in Canada, 1900-1950

Abstract: Historically Canadians have considered themselves to be more or less free of racial prejudice. Although this conception has been challenged in recent years, it has not been completely dispelled. In Colour-Coded, Constance Backhouse illustrates the tenacious hold that white supremacy had on our legal system in the first half of this century, and underscores the damaging legacy of inequality that continues today. Backhouse presents detailed narratives of six court cases, each giving evidence of blatant racism created and enforced through law. The cases focus on Aboriginal, Inuit, Chinese-Canadian, and African-Canadian individuals, taking us from the criminal prosecution of traditional Aboriginal dance to the trial of members of the 'Ku Klux Klan of Kanada.' From thousands of possibilities, Backhouse has selected studies that constitute central moments in the legal history of race in Canada. Her selection also considers a wide range of legal forums, including administrative rulings by municipal councils, criminal trials before police magistrates, and criminal and civil cases heard by the highest courts in the provinces and by the Supreme Court of Canada. The extensive and detailed documentation presented here leaves no doubt that the Canadian legal system played a dominant role in creating and preserving racial discrimination. A central message of this book is that racism is deeply embedded in Canadian history despite Canada's reputation as a raceless society. Winner of the Joseph Brant Award, presented by the Ontario Historical Society

One Case at a Time: Judicial Minimalism on the Supreme Court

Abstract: Part 1 Argument: leaving things undecided democracy-promoting minimalism decisions and mistakes minimalism's substance. Part 2 Applications: no right to die? affirmative action casuistry sex and sexual orientation the first amendment and new technologies. Part 3 Antagonists: width? Justice Scalia's democratic formalism depth? from theory to practice conclusion - minimalism and democracy.

Sophisticated voting and gate-keeping in the supreme court

Abstract: "Sophisticated voting" has a solid theoretical foundation, but scholars have raised serious questions about its empirical importance in real-world institutions. The U.S. Supreme Court is one institution where sophisticated voting should be common, but, paradoxically, where scholarly consensus about its existence has yet to emerge. We develop and test a formal model of sophisticated voting on agenda setting in the Supreme Court. Using data on petitions for certiorari decided in October term 1982, we show that, above and beyond the usual forces in case selection, justices engage in sophisticated voting, defined as looking forward to the decision on the merits and acting with that potential outcome in mind, and do so in a wide range of circumstances. In particular, we present strong evidence for sophisticated behavior, ranging from votes to deny a case one prefers to reverse to votes to grant cases one prefers to affirm. More importantly, sophisticated voting makes a substantial difference in the size and content of the Court's plenary agenda. Copyright 1999 by Oxford University Press.

Supreme Court decision-making : new institutionalist approaches

Abstract: What influences decisions of the US Supreme Court? For decades social scientists focused on the ideology of individual justices. This text moves beyond that focus by exploring how justices are influenced by the distinctive features of courts as institutions and their place in the political system. Drawing on interpretive-historical institutionalism as well as rational choice theory, a group of scholars consider such factors as the influence of jurisprudence, the unique characteristics of supreme courts, the dynamics of coalition building, and the effects of social movements.

Naked Exclusion: A Reply

Abstract: We are grateful to Ilya Segal and Michael Whinston for improving our analysis. We are pleased they confirm our two main conclusions. The first is that normally a firm cannot use contracts with its customers or suppliers inefficiently to exclude a rival from competition, because the high price of these contracts will make this strategy unprofitable. This is an old point, well summarized in Robert Bork's 1978 book. Second, and in contrast, exclusionary contracts can be profitable, effective, and socially inefficient -- under certain limited conditions. One condition is that firms in the industry must be able to operate only at or above some minimum efficient scale. Another condition is that the victims -- customers or suppliers -- must expect that the exclusionary tactic will succeed, and must be unable to coordinate their actions to defeat the tactic. An excluding firm in this situation can buy naked exclusion affordably because it can scare victims into selling cheaply; no single victim can stop the exclusion by itself, so no single victim has any bargaining power. At a theoretical limit, the excluding firm can gain the exclusionary rights for free. This striking result has implications for antitrust policy by suggesting that naked exclusion is, in theory, a potentially viable threat to efficient competition. Also striking from an antitrust perspective, however, is the lack of fit between this theory and the cases in which the United States Supreme Court has forged the law most relevant to exclusionary conduct. A simple legal label for contracts of naked exclusion is "exclusive dealing": "You agree to deal only with me, and not with my competitors." The facts of the three relevant Supreme Court cases, however, clearly violate the assumptions of the naked exclusion theory, as we explain in Rasmusen, Ramseyer and Wiley (1998). Two important conclusions follow. We cannot establish whether this kind of naked exclusion ever really happens by looking at the three legally most relevant cases. The theory awaits other empirical testing. And second, naked exclusion - if it ever really occurs - cannot be the only explanation for exclusive dealing. Rather, exclusive dealing "often" serves legitimate business purposes, as Judge (now Justice) Stephen Breyer wrote in his 1987 opinion in Interface Group, Inc v. Massachusetts Port Authority. The theory at hand thus does not support outlawing exclusive dealing on a per se or summary basis. If a legal prohibition is justified at all, any sensible legal test would have to be far more discriminating. Lawyers and judges who might seek to translate this theory into practice, please take note.

Who Counts: The Politics of Census-Taking in Contemporary America

Abstract: This article describes some of the legal decisions and problems among politicians and demographers who produce US census counts of population. The impact of the US Supreme Court hearing and decision in Wisconsin vs New York is discussed followed by an analysis of the Census Bureaus plans for the Census in 2000. Census procedures have been challenged since 1988. Litigation forced the use of the Post Enumeration Survey for adjusting the 1990 Census but the Census Director in 1991 issued a recommendation for not adjusting the 1990 counts that was affirmed by the Second Circuit Court of Appeals in April 1993. Oral arguments were heard in the aforementioned New York case on January 10 1996. New York argued for the implementation of dual system estimation due to undercounting errors that were probably influenced by actions of Republican Commerce officials during the 1980s that prevented improvements in census counting. It was charged that Census Bureau methods violated the intent of Article 1 Section 2 of the Constitution and the Fourteenth Amendment guarantee of equal protection. Lawsuits challenged the Bureau to develop methods that would reduce the undercount of minorities and the urban poor. Other arguments of the state of Oklahoma Wisconsin the federal government for the Secretary of Commerce and New York City are summarized. The Solicitor General of the US Drew Days argued that the true total population of the US was unknown and unknowable and that the Secretary of Commerce had the authority to make decisions about the census. The main issue before the court became who had the authority to decide not to adjust. All of the US Supreme Court judges voted on March 20 1996 in favor of unadjusted census counts. The issue of statistical adjustment methods as a violation of the Constitution was not decided. Plans for the census of 2000 include reducing costs and increasing accuracy through a three-stage count strategy.

Majority Rule or Minority Will: Adherence to Precedent on the U.S. Supreme Court

Abstract: List of tables and figures Preface 1. Precedent and the Court 2. Measuring precedential behavior 3. Precedential behavior from the beginning through the Chase Court 4. Precedential behavior bridging the 19th and 20th centuries 5. Precedential behavior in the Hughes, Stone, and Vinson courts 6. Precedential behavior in the Warren court 7. Precedential behavior in the Burger Court 8. Precedential behavior in the Rehnquist court 9. The Supreme court and state decisions 10. Conclusions List of references Case index Subject/name index.

The Boundaries of Private Property

Abstract: The American law of property encourages people to create wealth by breaking up and recombining resources in novel ways. But fragmenting resources proves easier than putting them back together again. Property law responds by limiting the one-way ratchet of fragmentation. Hidden within the law is a boundary principle that keeps resources well-scaled for productive use. Recently, however, the Supreme Court has been labeling more and more fragments as private property, an approach that paradoxically undermines the usefulness of private property as an economic institution and Constitutional category. Identifying the boundary principle threads together disparate property law doctrines, clarifies strange asymmetries in property theory, and unknots some takings law puzzles. An earlier version of this article was announced as University of Michigan Law School, Law and Economics Working Paper No. 99-010. The working paper can be downloaded from http://papers.ssrn.com/sol3/papers.cfm?abstract_id=173851

Who counts? the politics of census-taking in contemporary america

Abstract: This article describes some of the legal decisions and problems among politicians and demographers who produce US census counts of population. The impact of the US Supreme Court hearing and decision in Wisconsin vs New York is discussed followed by an analysis of the Census Bureaus plans for the Census in 2000. Census procedures have been challenged since 1988. Litigation forced the use of the Post Enumeration Survey for adjusting the 1990 Census but the Census Director in 1991 issued a recommendation for not adjusting the 1990 counts that was affirmed by the Second Circuit Court of Appeals in April 1993. Oral arguments were heard in the aforementioned New York case on January 10 1996. New York argued for the implementation of dual system estimation due to undercounting errors that were probably influenced by actions of Republican Commerce officials during the 1980s that prevented improvements in census counting. It was charged that Census Bureau methods violated the intent of Article 1 Section 2 of the Constitution and the Fourteenth Amendment guarantee of equal protection. Lawsuits challenged the Bureau to develop methods that would reduce the undercount of minorities and the urban poor. Other arguments of the state of Oklahoma Wisconsin the federal government for the Secretary of Commerce and New York City are summarized. The Solicitor General of the US Drew Days argued that the true total population of the US was unknown and unknowable and that the Secretary of Commerce had the authority to make decisions about the census. The main issue before the court became who had the authority to decide not to adjust. All of the US Supreme Court judges voted on March 20 1996 in favor of unadjusted census counts. The issue of statistical adjustment methods as a violation of the Constitution was not decided. Plans for the census of 2000 include reducing costs and increasing accuracy through a three-stage count strategy.

In Defense of a Political Court

Abstract: Can the Supreme Court be free of politics? Do we want it to be? Normative constitutional theory has long concerned itself with the legitimate scope and limits of judicial review. Too often, theorists seek to resolve that issue by eliminating politics from constitutional decisionmaking. In contrast, Terri Peretti argues for an openly political role for the Supreme Court.Peretti asserts that politically motivated constitutional decisionmaking is not only inevitable, it is legitimate and desirable as well. When Supreme Court justices decide in accordance with their ideological values, or consider the likely political reaction to the Court's decisions, a number of benefits result. The Court's performance of political representation and consensus-building functions is enhanced, and the effectiveness of political checks on the Court is increased. Thus, political motive in constitutional decision making does not lead to judicial tyranny, as many claim, but goes far to prevent it. Using pluralist theory, Peretti further argues that a political Court possesses instrumental value in American democracy. As one of many diverse and redundant political institutions, the Court enhances both system stability and the quality of policymaking, particularly regarding the breadth of interests represented.

DeathQuest: An Introduction to the Theory and Practice of Capital Punishment in the United States

Abstract: 1 History of the Death Penalty in the United States: The Pre-Modern Period (1608-1972) 2 Capital Punishment and the Supreme Court: The Pre-Modern Period 3 The Challenge to Capital Punishment's Legality 4 Capital Punishment and the Supreme Court: The Modern Period 5 The Death Penalty at the Federal Level, in the Military, and Globally 6 Methods of Execution 7 General Deterrence and the Death Penalty 8 Incapacitation and Economic Costs of Capital Punishment 9 Miscarriages of Justice and the Death Penalty 10 Arbitrariness and Discrimination in the Administration of the Death Penalty 11 Retribution, Religion, and Capital Punishment 12 American Death Penalty Opinion

The Politics of Dissents and Concurrences on the U.S. Supreme Court

Abstract: Why do justices author or join separate opinions? Most attempts to address the dynamics of concurrence and dissent focus on aggregate patterns across time or courts. In contrast, we explain why an ...

Sovereignty's Alchemy: An Analysis of Delgamuukw v. British Columbia

Abstract: In Delgamuukw v. British Columbia, the Supreme Court of Canada issued its long-awaited judgment on the status of Aboriginal title under section 35(1) of the Constitution Act, 1982. The decision was regarded as highly significant because it seemed to fundamentally alter the law of Aboriginal rights. This article suggests that while the case has somewhat positively changed the law to protect Aboriginal title, it has also simultaneously sustained a legal framework that undermines Aboriginal land rights. In particular, the decision's unreflective acceptance of Crown sovereignty places Aboriginal title in a subordinate position relative to other legal rights. This article examines how this result defeats the Court's own requirements for a just settlement with Aboriginal peoples. This review proceeds through exploring the Supreme Court's treatment of Aboriginal pleadings, evidence, content and proof of title, Aboriginal self-government, and the extinguishment of Aboriginal title in the Delgamuukw case. In investigating these issues, this article concludes by illustrating how a more rigorous application of the rule of law to the Crown in its dealings with Aboriginal peoples could generate greater equality and justice for Aboriginal peoples in their relations with the Canadian state.

Rethinking the New Deal court : the structure of a constitutional revolution

Abstract: Rethinking the New Deal Court challenges the prevailing account of the New Deal era Supreme Court, which holds that in the spring of 1937 the Court suddenly abandoned jurisprudential positions it had staked out in such areas as substantive due process and commerce clause doctrine. In this view, the impetus for such a dramatic reversal was provided by external political pressures manifested in FDR's landslide victory in the 1936 election, and by the subsequent Court-packing crisis. Author Barry Cushman, by contrast, discounts the role that political pressure played in securing this "constitutional revolution." Instead, he reorients study of the New Deal Court by focusing attention on the internal dynamics of doctrinal development and the role of New Dealers in seizing opportunities presented by doctrinal change. Recasting this central story in American constitutional development as a chapter in the history of ideas rather than simply an episode in the history of politics, Cushman offers a thoroughly researched and carefully argued study that recharacterizes the mechanics by which laissez-faire constitutionalism unraveled and finally collapsed during FDR's reign. Identifying previously unseen connections between various lines of doctrine, Cushman charts the manner in which Nebbia v. New York's abandonment of the distinction between public and private enterprise hastened the demise of the doctrinal structure in which that distinction had played a central role.

Inviting Congressional Action: A Study of Supreme Court Motivations in Statutory Interpretation

Abstract: Theory: The Supreme Court's occasional "invitations" to Congress to reverse the Court's statutory decisions challenge two influential theories of the Court's behavior and thus merit attention. Hypotheses: Three altemative explanations for invitations are posited: low interest in certain cases on the part of the justices, a desire to maintain the Court's institutional standing, and a desire to achieve both good policy and good law. Methods: These altemative explanations are tested through a logit analysis of the Court's statutory decisions in the 1986 through 1990 terms; the dependent variable is the presence or absence of what we call a strong invitation to Congress in the majority opinion. Results: The results of the analysis give greatest support to the hypothesis that justices have an interest in achieving both good policy and good law. This finding underlines the need to take the Court's invitations into account in the debate over the impact of legal and policy considerations on Supreme Court decisions.

Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation

Abstract: The use of comparative constitutional materials in constitutional interpretation – comparative constitutional interpretation – has emerged as a central component of contemporary constitutional practice. This article identifies three distinct modes of comparative constitutional interpretation (universalist, genealogical, and dialogical) which offer courts the interpretive resources to explain why comparative law should count. Because of their centralizing role in legitimizing and validating the exercise of public power, courts are under an obligation to engage in a process of justification for their decisions. Through an examination of the case law of the Constitutional Court of South Africa and the Supreme Court of Canada, the author discusses the three ways that justification occurs within comparative constitutional jurisprudence and the distinct normative justification for the use of comparative law that each offers. The author finally assesses the scope, effects, and the legitimacy of the normative claims of each mode.

Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees

Abstract: Although the Senate confirmation of Supreme Court nominees is the most public part of the nomination process, the most critical phase - the initial selection of nominees - is usually hidden from view. This book takes the reader behind the scenes of what happens before the Senate hearings to show how presidents go about deciding who will sit on the highest court in the land. David Yalof shows, an intricate web of forces - competing factions within the executive branch, organized interests and the president's close associates - all vie for influence during this phase of presidential decisionmaking. Yalof draws on the papers of seven presidents, from Truman to Reagan, and interviews with key figures, such as Ramsey Clark, Edwin Meese and President Gerald Ford. He documents and analyzes the selection criteria these presidents used, the pool of candidates from which they chose, their strategies and the political pressures affecting their decisions, both successes and failures. Yalof also disputes much conventional wisdom about the selection process, including the widely held view that presidents choose nominees primarily to influence future decisions of the high court. Yalof offers observations about the selections of Presidents George Bush and Bill Clinton in his epilogue. By focusing on a neglected area of presidential politics, Yalof offers a glimpse into the intricate world of executive branch decisionmaking and the Supreme Court appointment process as a whole.

Intended Consequences: Birth Control, Abortion, and the Federal Government in Modern America

Abstract: After World War II, U.S. policy experts-convinced that unchecked population growth threatened global disaster-successfully lobbied bipartisan policy-makers in Washington to initiate federally-funded family planning. In Intended Consequences, Donald T. Critchlow deftly chronicles how the government's involvement in contraception and abortion evolved into one of the most bitter, partisan controversies in American political history. The growth of the feminist movement in the late 1960s fundamentally altered the debate over the federal family planning movement, shifting its focus from population control directed by established interests in the philanthropic community to highly polarized pro-abortion and anti-abortion groups mobilized at the grass-roots level. And when the Supreme Court granted women the Constitutional right to legal abortion in 1973, what began as a bi-partisan, quiet revolution during the administrations of Kennedy and Johnson exploded into a contentious argument over sexuality, welfare, the role of women, and the breakdown of traditional family values. Intended Consequences encompasses over four decades of political history, examining everything from the aftermath of the Republican "moral revolution" during the Reagan and Bush years to the current culture wars concerning unwed motherhood, homosexuality, and the further protection of women's abortion rights. Critchlow's carefully balanced appraisal of federal birth control and abortion policy reveals that despite the controversy, the family planning movement has indeed accomplished much in the way of its intended goal-the reduction of population growth in many parts of the world. Written with authority, fresh insight, and impeccable research, Intended Consequences skillfully unfolds the history of how the federal government found its way into the private bedrooms of the American family.

Brennan and Democracy

Abstract: In "Brennan and Democracy," a leading thinker in U.S. constitutional law offers some powerful reflections on the idea of "constitutional democracy," a concept in which many have seen the makings of paradox. Here Frank Michelman explores the apparently conflicting commitments of a democratic governmental system where key aspects of such important social issues as affirmative action, campaign finance reform, and abortion rights are settled not by a legislative vote but by the decisions of unelected judges. Can we--or should we--embrace the values of democracy together with constitutionalism, judicial supervision, and the rule of law? To answer this question, Michelman calls into service the judicial career of Supreme Court Justice William Brennan, the country's model "activist" judge for the past forty years. Michelman draws on Brennan's record and writings to suggest how the Justice himself might have understood the judiciary's role in the simultaneous promotion of both democratic and constitutional government.The first chapter prompts us to reflect on how tough and delicate an act it is for the members of a society to attempt living together as a people devoted to self-government. The second chapter seeks to renew our appreciation for democratic liberal political ideals, and includes an extensive treatment of Brennan's judicial opinions, which places them in relation to opposing communitarian and libertarian positions. Michelman also draws on the views of two other prominent constitutional theorists, Robert Post and Ronald Dworkin, to build a provocative discussion of whether democracy is best conceived as a "procedural" or a "substantive" ideal.

Do the Haves still come out ahead? Resource inequalities in ideological courts : The case of the Israeli high court of justice

Abstract: This research note examines the relations between judicial preferences institutional concerns, and litigation outcomes. I found that in litigation before the Israeli High Court of Justice, the haves enjoyed only a limited advantage over have nots in litigation outcomes. I also found that when have nots were represented by legal counsel, the haves did not come out ahead. Ideological propensities of judges and considerations of institutional autonomy can ameliorate, to some extent, the inherent inferiority of have nots in litigation. It was also found that the mechanisms that worked in favor of have nots operated not only in litigation that reached final judicial disposition but also when the litigation was disposed through out-of-court settlements

Diversity and Legal Education: Student Experiences in Leading Law Schools

Abstract: Author(s): Orfield, Gary; Whitla, Dean | Abstract: This study reports on the experiences of students captured in a high response-rate survey administered by the Gallup Poll at two of the nation's most competitive law schools, Harvard Law School and the University of Michigan Law School, as well as through data collected through an email/internet survey at five other law schools. The data indicate that the Supreme Court was correct in its conclusions about the impact of diversity in Bakke and earlier higher education decisions.Available at: http://civilrightsproject.ucla.edu

["Race," Rights & the Law in the Supreme Court of Canada: Historical Case Studies]

Abstract: These fine books on aspects of law and criminality support the platitude that crime does not pay -- except for lawyers, criminologists and insurance companies. Canadian criminals put in more time in jail per dollar stolen in other countries, although these statistics predate the conviction of Alan Eagleson. Another statistic, even less likely to stir patriotic pride, is that Canadian youth, as Bernard Schissel points out, have the highest per capita rate of incarceration of any country in the world.If crime rates in Canada have dropped off in recent years, corresponding to the diminishing ratio of youth in the Canadian population, we still have a lot more lawyers. Prior to the Charter of Rights and Freedoms, Canadians had less than half as many lawyers per capita as the Americans but now we approach two-thirds of the American ratio (Law and Markets 77-81) creating "the danger of supply-driven and socially harmful increases in litigation" (85). Virtually, all of the contributors to Law and Markets bemoan Canada's increasing litigiousness; none defend the very quality that brought one of Canada's most honoured citizens to jail. The Fraser Institute has brought together an interesting volume that seems to bear the message of Adam Egoyan's movie The Sweet Hereafter; namely, that lawyers as ambulance-chasers are bad news. Law and Markets is concerned not with corporate criminality but with the prospect that enterprising lawyers, instigating class action suits on contingency fees, will be able to dupe civil juries, and cut into profit margins. Indeed, Richard Hazelton, the CEO of Dow Corning which filed for bankruptcy because of the silicone breast implant suit, tells a cautionary tale for Canadian businesspeople.Contributors point out that jurors lack competence to assess the scientific and technical evidence about toxic emissions, risks to health, the relationship of causality and legal accountability; prejudices about dioxin spills may skew assessment of the personal injury caused by the spillage. The one exception to the anti-litigation view of the 17 contributors to Law and Markets is Mark Mattson, an environmental litigator, who argues convincingly that the Canadian Environmental Protection Act needs radical revision or abolition. Mattson argues that the federal government should either enforce environmental standards or leave private litigators like himself to engage in civil ligation against environmental polluters. Mattson recommends that public interest groups and their lawyers split the fine levied on the offending corporations or municipalities (135). While Mattson may conform to the Fraser Institute's policy on deregulation -- "It is government intervention that stands in the way of a public right to protect community resources" (136) -- his proposals would encourage litigation, diminish shareholder profits and raise citizens' taxes. If the aim of Canadian economic regulation is, as Konrad von Finckenstein puts it, "user-friendly regulation," we are led to conclude that deregulation and user-friendly regulation are not the same thing. If the conflicting interests of Richard Hazelton and Mark Mattson reveal the current contradictions of capitalism, we might also note that the provinces geographically and ideologically closest to the Fraser Institute (British Columbia and Alberta) are the most litigious, while New Brunswick are Newfoundland are least litigious (158-9).An exciting challenge for the Fraser Institute would be to take on the human rights legislation that emerged after the Second World War, arising from a combination of anti-Nazi principle, Keynesian welfarism and acceptance of wartime control of goods and services in the public interest. Since human rights codes abridge several common law rights, of property and contract, specifically the right of business to discriminate in favour of preferred employees, buyers, tenants and customers, the Institute's views on James Walker's compelling account of the role of human rights legislation in limiting racism in the Canadian marketplace would be illuminating. …

The contemporary law of superior responsibility

Abstract: In the bloody aftermath of World War I it became apparent that those in military or civilian authority provided a cornerstone for the good conduct of those under their command, and hence should carry some liability for their actions. A Commission established by the allies after World War I to assess the responsibility of German officers rightly assumed that a combination of power to intervene, knowledge of crimes and subsequent failure to act should render those concerned liable for the crimes of their subordinates. Despite United States and Japanese dissent, die latter arguing that highranking officials could not be held personally accountable under international law in accordance with the abstention theory of responsibility, trials instituted at the German Supreme Court in Leipzig recognized the existence of concrete duties pertaining to military commanders. Undoubtedly, two precursors to the Leipzig proceedings, the Hague Conventions IV (1907) and X (1907) created affirmative command duties in relation to the conduct of subordinate persons, establishing the doctrine of “command responsibility.”

Reexamining litigant success in state supreme courts

Abstract: Since Marc Galanter (1974) formulated the hypothesis that parties with greater resources, usually "repeat players," fare better in courts and are better able to influence legal change than "one shotters," numerous scholars have provided empirical insights into the extent to which stronger parties enjoy advantages in litigation. Studies of U.S. trial courts provide evidence that "haves" do tend to come out ahead (Galanter 1974; Owen 1971; Wanner 1975). Governments generally have been more successful in litigation than businesses and other organizations, which in turn have been more successful than individual litigants. Greater resources allow the "haves" to hire the best lawyers and incur the expenses for extensive discovery, expert witnesses, appeals to higher courts, and other activities. As repeat players, they can structure their interactions with the courts by carefully selecting cases to pursue, engaging in forum shopping, settling cases when the prospects appear low for success at trial or on appeal, implementing comprehensive litigation strategies, and developing favorable legal precedents. Studies of litigant success in appellate courts, however, provide less conclusive support for Galanter's hypothesis. Although stronger parties are substantially more successful in U.S. Courts of Appeals (Songer & Sheehan 1992), party type is not a strong predictor of success on the merits in U.S. Supreme Court litigation (Sheehan et al. 1992). At the state level, Wheeler and his colleagues ( 1987) examined 16 state supreme courts from 1870 to 1970, finding that the "haves" generally came out ahead but that differential success rates between stronger and weaker parties, although statistically significant, were not great. On many measures, the net disadvantage of weaker parties was less than 5% to 6%, causing the authors to conclude that the advantage of the haves is "rather small" (1987:403). This research note relies on more recent data to reassess the relationship between the relative strength of litigants and their success in state supreme courts. I examine litigant success in five states during the years 1975, 1980, 1985, and 1990. I also attempt to push forward our understanding of the importance of resources by accounting for a variety of alternative explanations for litigant success, including judicial bias, that Wheeler et al. (ibid.) do not consider. I present a framework similar to that of Wheeler et al. and Songer and Sheehan ( 1992) to explore whether powerful litigants get their way in state judiciaries. Sample Selection and Case Coding The analysis relies on a sample of published opinions from the supreme courts in Alabama, Kansas, New Jersey, South Dakota, and West Virginia in the years of 1975, 1980, 1985, and 1990. Because the case selection procedures and variable coding are not identical to that used by Wheeler et al. (1987), the differences must be made clear.l For each court in each year, I began by identifying all opinions of one page or longer published in West's regional reporters. When a court issued less than (or close to) 100 opinions in a given year, all were included in the analysis. When a much greater number of opinions were issued, 100 were chosen at random. The search yielded at total of 1,981 cases, with 400 opinions each from the high courts of Alabama and Kansas, 383 from New Jersey, 394 from West Virginia, and 404 from South Dakota. Four law student assistants coded each case for a variety of variables, including the nature of the appellant and respondent, agenda area, and the outcome of the case. Reliability tests using a random 10% sample of cases showed a high degree of reliability among coders (see Appendix A). Limited resources and the lack of relevant information in published court opinions makes it difficult to obtain information about the resources of specific parties. As a result, I adopted the strategy used by Wheeler et al. (ibid. …

Judicial Choice and the Politics of Abortion: Institutions, Context, and the Autonomy of Courts

Abstract: The power of courts to thwart the will of the popularly elected branches of government and to stand in direct contradistinction to the dominant political alliance has fascinated scholars of American politics since the nation's inception Although courts have been idealized as barriers to majority tyranny because of their seeming willingness to confront legislative majorities through the power of judicial review, serious questions have been raised about the actual nature of courts' countermajoritarian function and, in particular, the conditions under which courts are willing to challenge legislative majorities When are courts likely to take on legislatures in the game of separation of powers/checks and balances? Or, stated more broadly, to what extent are courts autonomous institutions whose functions are impervious to conditions in the external political environment? After all, the countermajoritarian function and the autonomy of courts are hampered if courts, or the individual judges casting votes in the cases, fear legislative sanctions and defer to legislative preferences to avoid them This Article seeks to explore fundamental questions about the nature of inter-institutional conflict by examining all cases decided since Roe v Wade(1) by state supreme courts in which direct challenges to state statutes regulating abortion services were raised As institutions with a diversity guaranteed by jurisdiction, state supreme courts are subject to virtually every force likely to affect judicial choice(2) Consequently, they offer an ideal laboratory for testing relevant contextual hypotheses Similarly, the abortion issue provides a manageable, yet highly charged, specimen with which we can conduct our analysis(3) In response to concerns about the basis of inter-institutional conflict with the courts, two different conceptualizations of courts as institutions have emerged in the scholarly literature based on studies of the United States Supreme Court(4) First, scholars working within the framework of attitudinal theory have posited that the Supreme Court is a highly autonomous institution whose decisions essentially reflect the aggregation of preferences of its members(5) Because various institutional arrangements (eg, lifetime tenure) insulate the Court from sanctions, the Supreme Court lacks incentives to respond to forces in the external environment, including Congress, except on the rarest of occasions(6) Given the highly insular nature of the Court, individual justices are free to cast votes in accordance with their preferences on issues of public policy(7) Therefore, the Supreme Court only overturns statutes under conditions where the preferences of the Court majority and Congress merely conflict, without reference to exogenous factors(8) Alternatively, scholars working within the rational choice framework have offered another conceptualization of the relationship between the Supreme Court and Congress that poses a serious challenge to the widely accepted principle of judicial autonomy and purely attitudinal voting(9) Positive theorists have argued that even when preferences conflict, the Supreme Court frequently will acquiesce to the legislative majority when the Court anticipates some possible reprisal or sanction for its actions(10) One particularly important reprisal is subsequent statutory revision Stated differently, positive theorists model the preferences of Congress as a significant constraint on judicial choice in the nation's highest court, and the power of Congress as a limit on the autonomy of the Supreme Court(11) While these two alternative perspectives on the status of the United States Supreme Court will continue to be debated as new evidence is brought to bear on the issue, some very recent research raises serious doubts about the utility of models derived from positive theory for explaining the Supreme Court's interaction with Congress(12) In a highly thought-provoking paper, Jeffrey Segal presents a convincing case that assumptions about the insularity of courts are theoretically sound and empirically correct for the Supreme Court, even in matters of statutory interpretation …

Globalization in Search of Justification: Toward a Theory of Comparative Constitutional Interpretation

Abstract: The use of comparative constitutional materials in constitutional interpretation – comparative constitutional interpretation – has emerged as a central component of contemporary constitutional practice. This article identifies three distinct modes of comparative constitutional interpretation (universalist, genealogical, and dialogical) which offer courts the interpretive resources to explain why comparative law should count. Because of their centralizing role in legitimizing and validating the exercise of public power, courts are under an obligation to engage in a process of justification for their decisions. Through an examination of the case law of the Constitutional Court of South Africa and the Supreme Court of Canada, the author discusses the three ways that justification occurs within comparative constitutional jurisprudence and the distinct normative justification for the use of comparative law that each offers. The author finally assesses the scope, effects, and the legitimacy of the normative claims of each mode.