Showing papers on "Supreme court published in 2000"

Measuring Issue Salience

Abstract: The concept of issue salience has figured prominently in many studies of American political life. Long lines of research have taught us that both citizens and political elites may respond differently to issues that are salient to them than to those that are not. Yet analysts making such claims about elite actors face a fundamental problem that their counterparts in mass behavior do not: they cannot survey, say, members of the Supreme Court to ascertain those cases that are especially salient to the justices. Rather, scholars must rely on surrogates for issue salience-surrogates that are fraught with problems and that have led to disparate research results. Accordingly, we offer an alternative approach to measure issue salience for elite actors: the coverage the media affords to a given issue. We argue that this approach has substantial benefits over those employed in the past. Most notably, it provides a reproducible, valid, and transportable method of assessing whether the particular actors under investigation view an issue as salient or not. In making the case for our measure we focus on Supreme Court justices but we are sanguine about its applicability to other political actors

Crafting Law on the Supreme Court: The Collegial Game

Abstract: 1. Introduction 2. Selecting an author: assigning the majority opinion 3. A strategic response to draft opinions 4. The decision to accommodate 5. The politics of coalition formation 6. Conclusion.

Strategic Auditing in a Political Hierarchy: An Informational Model of the Supreme Court's Certiorari Decisions

Abstract: W T He examine how the Supreme Court uses signals and indices from lower courts to determine which cases to review. In our game theoretic model, a higher court cues from publicly observable case facts, the known preferences of a lower court, and its decision. The lower court attempts to enforce its own preferences, exploiting ambiguity in cases'fact patterns. In equilibrium, a conservative higher court declines to review conservative decisions from lower courts regardless of the facts of the case or the relative ideology of the judges. But a conservative higher court probabilistically reviews liberal decisions, with the "audit rate" tied to observable facts and the ideology of the lower court judge. We derive comparative static results and test them with a random sample of search-and-seizure cases appealed to the Burger Court between 1972 and 1986. The evidence broadly supports the model. H ierarchical control of organizations is problematic throughout the realm of politics. Congress and presidents attempt to control agencies, upper levels of bureaucracies attempt to control lower levels, and higher courts strive to control lower courts. With incomplete information about their subordinates' decisions and knowledge, superiors in rule-based hierarchies often employ some form of auditing. In this article we study how the Supreme Court uses signals and indices from lower courts to pluck a relative handful of cases from a plethora of potential candidates for review. Our point of departure is the role of review in enforcing the doctrinal preferences of the Supreme Court within the judicial hierarchy. We begin by presenting a game-theoretic model of

Battered Women and Feminist Lawmaking

Abstract: As recently as the 1960s the harm of domestic violence was not legally recognized. This book examines how path-breaking feminist activists and lawyers have brought the severity of domestic violence to public attention since then and have led the US Congress, the Supreme Court, and the United Nations to address the problem.

Lessons for the Future of Affirmative Action from the past of the Religion Clauses

Abstract: For both educational affirmative action and the use of race in districting, this essay pursues parallels with the Supreme Court's religion clause jurisprudence in aid of the argument that the approach mapped out by the Powell opinion in Bakke, the Michigan District Court in Gratz, and the Supreme Court dissenters in the Shaw v. Reno line of voting rights cases makes more sense as a part of our constitutional law than the sort of categorical opposition to the use of race in anything other than a strictly remedial context that is rapidly becoming its chief competition. My contention is that the Supreme Court's attitude toward race, at least in the two contexts of educational affirmative action and voting rights, should follow the same trajectory as its attitude toward religion already has. The trajectory I have in mind is the following: For a period of time, on Establishment Clause grounds, the exclusion of religion and the religious from otherwise generally available opportunities was endorsed, indeed was seen as constitutionally required. Then the Court came to realize that it worked a discrimination against those whose central organizing characteristic or salient trait was their religion to allow other such characteristics, but not religion, to form the basis for inclusion. Similarly, to allow every other basis for commonality or salience to count and not race may be seen to disadvantage those for whom race is a defining characteristic in a way that itself implicates the Equal Protection Clause. To put the argument in extremely compressed and referential form, if colorblindness is analogous to aggressive enforcement of the Establishment Clause, then, while the University of California's use of race in the plan struck down in Bakke may resemble the New York legislature's use of religion in the districting legislation struck down in Kiryas Joel, the inclusion of race in the Harvard admissions plan praised by Justice Powell more closely resembles the inclusion of religion mandated by the Supreme Court for the University of Virginia's funding scheme in Rosenberger. And, if the affirmative action claims of racial minorities are like the accommodation claims of religious minorities, then, while some voluntary pursuit of racial diversity by public educational institutions is like permissible accommodation, some majority minority districting under the Voting Rights Act is like required accommodation.

The Charter Revolution and the Court Party

Abstract: Part I: Introduction The Charter Revolution The Role of Judges The Court Party Part II: Judges and the Charter Judicial Discretion Core Values Textual Innovations Original Intent, Traditional Understandings Oracularism Part III: The Court Party Unifiers Civil Libertarians Equality Seekers Social Engineers Postmaterialists The Elitism of the Court Party Part IV: The State Connection Secretary of State Funding Court Challenges Program Funding for Aboriginal Rights Litigation Academic Research Funding Legal Aid Provincial Law Foundations Part V: The Jurocracy Courts Administrative Tribunals Government Legal Departments Law Reform Commission of Canada National Judicial Institute and Western Judicial Education Centre Part VI: Power Knowledge: The Supreme Court as the Vanguard of the Intelligentsia Administrative Support Rights Experts Advocacy Scholarship Part VII: What's Wrong with the Charter Revolution and the Court Party Notes List of Cases Cited Select Bibliography Index

The Influence of Amicus Curiae Briefs on the Supreme Court

Abstract: INTRODUCTION AND OVERVIEW ............................................................ 744 I. THE RISING TiDE OFAMICUS CuRIAE BRIEFS .................................. 751 A. The Level ofAmicus Curiae Activity, 1946-1995 ........................... 751 B. Citation and Quotation of Amicus Briefs, 1946-1995 .................... 757 II. THE OPEN DOOR POLiCYTOWARD AMICUS BRIEFS ........................ 761 III. PREVIOUS STUDIES OF THE INFLUENCE OF AMICUS BRIEFS ON SUPREME COURT OUTCOMES ........................................ 767 IV. THREE MODELS OFJUDGING AND THEIR IMPLICATIONS FOR AMICUS BRIEFS ......................................................................... 774 A. The Legal M odel .......................................................................... 775 B. The Attitudinal Model ................................................................. 779 C. The Interest Group Model ............................................................. 782 V. AN EMPIRICAL STUDY OF THE INFLUENCE OFAMICUS BRIEFS ......... 787 A. The Overall Success Rates ofAmicus Filers ..................................... 789 B. Disparities in Amicus Support ....................................................... 793 C. The Impact of Amicus Brief Quality .............................................. 801 1. Success Rates of Institutional Litigants ............................... 801 2. Success Rates of Cited Briefs ............................................... 811

The Warren Court and American Politics

Abstract: Preface 1. The Supreme Court, 1935 -1953 I. Beginnings: The 1953 -1956 Terms Prologue: Brown before Warren 2. Brown 3. Implementation 4. Domestic Security 5. Glimpses of the Future II. Stalemate: The 1957 -1961 Terms Prologue: "Dangerously, Shockingly Close" 6. Domestic Security after Red Monday 7. Little Rock and Civil Rights 8. The Transition III. History's Warren Court: The 1962 -1968 Terms Prologue: The Fifth Vote 9. To the Civil Rights Act 10. Revamping the Democratic Process 11. After the Civil Rights Act 12. Freedom of Expression 13. The End of Obscenity? 14. Church and State in a Pluralist Society 15. Policing the Police 16. Policing the Criminal Justice System 17. Wealth and Poverty IV. The Era Ends Prologue: Retirement 18. The Last Year 19. What Was the Warren Court? Chronology Notes Bibliography Index of Cases General Index

Ideological Divergence and Public Support for the Supreme Court

Abstract: We examine the degree to which aggregate-level support for the Supreme Court is a function of its divergence from the ideological mood of the country. We first overcome the problem of irregular and infrequent measurement of attitudes toward the Supreme Court by employing an approach developed by Stimson (1991) which allows us to pool seventeen similar survey items administered a total of ninety-three times to produce a single, semi-annual time series of support for the Supreme Court, extending from 1973 through 1993. We then consider the effect of the Court's ideological position on the level of support it enjoys. In contrast to previous research, we take into account that both the Court's and the public's ideological preferences vary over time. Our analysis indicates that the public's appraisal of the Supreme Court responds not to the Court's ideological position per se, but rather to the extent to which the Court's position diverges from the ideological preferences of the citizenry; when the Court deviates from the public mood, its support erodes. Scholars have long been interested in determining and explaining levels of public support for the Supreme Court. As a result, we know a great deal about the determinants of individual-level attitudes toward the Supreme Court (cf. Mondak and Grosskopf 1998; Caldeira and Gibson 1992; and references therein). We know less, however, about the ebb and flow of Court support over time (but see Mondak and Smithey 1997; Caldeira 1986, 1987). A major obstacle to studying the dynamics of Court support has been the infrequent and inconsistent manner in which survey organizations have queried citizens' attitudes toward the Court. Here, we offer an approach to the available data that allows us to measure support for the Supreme Court on a semi-annual basis over a twenty-year period. We then use this unique series to model Court support as a function of its divergence from the public's ideological mood. In contrast to past work, we take into account that both the Court's ideological position and the public mood vary over time and focus on the shifting divergence and convergence of the two as an explanation for changes in support for the Supreme Court.

The Supreme Court and Local Public Opinion

Abstract: people pay attention and use this information in their evaluation of the Court. The research is based on a series of two-wave panel studies that examine the effect of Supreme Court cases in the local communities where the controversies began. The results show that a substantial number of residents heard about the Court's decision and subsequently changed their evaluation of the Supreme Court, especially those who live in the immediate community. The results suggest that we need to consider other circumstances in which people hear about and care about Supreme Court decisions. R esearch on the relationship between specific Supreme Court decisions and public support for the Court has been frustrated by the apparent public ignorance of all but the most controversial and visible cases (see Caldeira 1991). In the standard account, citizens are portrayed as quite willing to offer an opinion about the institution, but they do so without knowledge of many individual decisions. Thus, many scholars conclude that support for the Court rests upon more enduring attitudes about the legitimacy of the Court in the system of government rather than on agreement or disagreement with specific decisions. Although most research suggests that the majority of Court decisions go unnoticed, the possibility that these decisions influence attitudes toward the institution is not without some support in the literature. The connection has been established in experimental research (Mondak 1991, 1992; Segal 1995) but has not been very well documented outside the laboratory. The reason is straightforward: If Court decisions are not common knowledge, by definition they can have no effect. One major obstacle is that most national surveys do a poor job of identifying conditions in which people are motivated to learn about specific Court decisions and in which they have sufficient access to information about them (but see Franklin and Kosaki 1995; Franklin, Kosaki, and Kritzer 1993; Hoekstra and Segal 1996). Consequently, we may be underestimating the importance of citizens' reactions as an element of support for the Court. One instance in which interest and access to information are likely to be high is the local communities where a controversy began. People should be more interested in cases that involve members of their own community than in cases that involve individuals or groups from somewhere else (Boninger, Berent, and

Judicial Independence: The Politics of the Supreme Court in Mexico

Abstract: This article examines the role of the Supreme Court in the development of the Mexican political system. The judiciary provided an important source of regime legitimation, as it allowed for the consolidation of a state of legality and a claim to constitutional rule of law, at least in discourse. However, the judiciary was in effect politically subordinated to the logic of dominant party rule through both specific constitutional reforms since 1917 that weakened the possibility of judicial independence and a politics of institutional and political co-optation. The constitutional reform of 1994 has significantly altered the nature of the relationship between the executive and the Supreme Court.

Constitutional Judiciary in a new democracy : the Hungarian Constitutional Court

Abstract: Two in-depth essays and a selection of twenty-seven of the most important decisions present the Hungarian Constitutional Court as one of the most important actors of the transition into democracy in a post-communist country.How was it possible that a new Court established in 1990, in a country just released from forty years of Communist rule, was able to enforce a Constitution, maintain the rule of law, and protect the freedom of its citizens in a way comparable to the U.S. Supreme Court? This new Court has issued decisions on topics ranging from the establishment of democracy and a market economy--privatization, compensation for the nationalization of property, and retroactive criminal legislation--as well as such issues as the constitutionality of capital punishment, abortion, freedom of speech and the media, and the separation of powers.U.S. Supreme Court Justice Stephen Breyer provides the foreword and introduces the two essays that begin the book. In the first essay, Georg Brunner explains how the Court was set up and what its procedures are. In the second, Lazszlo Solyom describes systematically the emergence of the case-law of the Court and its jurisprudence on constitutional rights and on the powers and procedures of the other branches of government. The models followed by the Court are outlined, and its contribution to global constitutionalism explored.Lazszlo Solyom is President of the Constitutional Court of Hungary and Professor of Law, ELTE University of Budapest. Georg Brunner is Professor of Law, University of Cologne, Germany."

The Struggle for Constitutional Justice in Post-Communist Europe

Abstract: In the former Eastern Bloc countries, one of the most important, and most difficult, aspects of the transition to democracy has been the establishment of constitutional justice and the rule of law. Herman Schwartz's wide-ranging book is the first to chronicle and analyze the rise of constitutional courts in this changing region. Beginning with a brief history of the courts prior to 1989, Schwartz draws on his expertise as a constitutional scholar and long-time adviser to many of these countries to compare their jurisprudence with relevant American and West European law. He then focuses in detail on the relative success stories of Poland and Hungary, where the courts faced little opposition, and the more problematic situations in Russia, Slovakia and Bulgaria, where the courts' independence and very existence were threatened by both old-line communists and new-style authoritarians. With a wealth of historical and other information, backed up by a massive array of research, the book is a remarkably rich, yet accessible, source for anyone interested in the ongoing struggles of post-Communist Europe.

Putting the Politics Back into the Political Safeguards of Federalism

Abstract: Herbert Wechsler, writing in 1954, recognized that aggressive judicial intervention to protect the states from Congress was inconsistent with original understanding and unnecessary. However, Wechsler's explanation of "political safeguards" does not explain the system of politics that has accounted for the continued success of American federalism for more than two centuries of practice. The Founders believed that any attempt by Congress to usurp state power could and would be thwarted by state officials' mounting popular political appeals. Unfortunately, no one anticipated the development of political parties which swiftly replaced republican politics and eroded what the Founders had assumed would be a natural, permanent antagonism between state and national politicians. This new politics preserved the states' voice in national councils, however, by linking political fortunes of state and federal officials. It is this system of politics which has protected federalism and which renders the current Supreme Court's aggressive foray into federalism as unnecessary as it is misguided.

Buyer Beware? Presidential Success through Supreme Court Appointments

Abstract: One manner in which Presidents attempt to have an enduring policy influence is through the appointment of like-minded justices to the Supreme Court. This article empirically examines Dahl's (1957) hypothesis that justices actually support the policy preferences of the Presidents who appoint them. We study concordance with new data for measuring presidential preferences in the domains of social and economic policy and by incorporating the notion of judicial change over time. We measure presidential preferences for the modern Presidents, Franklin Roosevelt through Bill Clinton, with a survey taken from a random sample of political science scholars who study the Presidency We measure the voting behavior of the President's Supreme Court appointees through their votes in civil liberties and economics cases from 1937 to 1994. Presidents appear to be reasonably successful in their appointments in the short run, but justices on average appear to deviate over time away from the Presidents who appointed them.

Continuity and Change on the United States Courts of Appeals

Abstract: While many fine works of scholarship examine the role of the Supreme Court in American politics, there has been a dearth of scholarly books that focus on the Courts of Appeals. "Continuity and Change on the United States Courts of Appeals "is unique both in its focus on this level of the judiciary and its approach that examines major trends over the twentieth century. Since the Supreme Court has the discretion to refuse to hear almost all cases appealed to it, the Courts of Appeals are usually the final option for litigants in the federal system. Unless overturned by the Supreme Court or, in cases decided on the basis of statute, by Congressional action, the rulings can have a significant impact on government policy.The authors present the first comprehensive examination of the shifting role of the Courts of Appeals, investigating changes over time and presenting the first systematic analyses of those changes. Their work is the first book to utilize the database of the U.S. Courts of Appeals, analyzing over 15,000 cases to examine trends between 1925 and 1988. The book answers questions such as who are the judges? What are their decisional tendencies? What has been the role of region and partisan politics? Who are the litigants? And who has won and who has lost throughout the twentieth century? It is the only current, up-to-date book on the Courts of Appeals and an essential read for all scholars and students interested in American politics and judicial behavior.Donald R. Songer is Professor of Political Science, University of South Carolina. Reginald S. Sheehan is Associate Professor of Political Science and Director of the Program for Law and Juridical Politics, Michigan State University. Susan B. Haire is Assistant Professor of Political Science, University of Georgia

The myth of legality and public evaluation of the Supreme Court

Abstract: Objective. We investigate the extent to which the American people subscribe to the myth of legality-the notion that the Supreme Court's decisions are based on legal principles rather than on political influences. Methods. Using survey research, we examine the mass public's perceptions of the bases for Supreme Court decisions. We identify those perceptions that are consistent with the myth of legality and isolate the myth holders. Finally, we embed myth holding into a broader model of public evaluation of the Supreme Court. Results. We find that the myth holders are better educated, more attentive to the Court, and more favorable to the Court as an institution, even when controlling for other determinants of public evaluation of the Court. Conclusions. The myth of legality is a viable component of American political culture that assists citizens in making sense of the Supreme Court's decision-making processes

Establishing Judicial Independence in West Germany The Impact of Opinion Leadership and the Separation of Powers

Abstract: Comparativists have recently taken an increasing interest in the politics surrounding constitutional courts. This literature has focused mainly on the impact of constitutional review on policy output.' A theoretically prior but intimately connected issue is the ability of courts to establish and protect their institutional integrity and to ensure compliance with their decisions. This issue is theoretically prior because without such authority courts will have little effect on policy. It is interesting because authority is problematic. Courts occupy a weak formal position. They possess no direct enforcement mechanisms and few powers to guard their independence.2 At the same time, courts with the power of constitutional review can impose an unpleasant constraint on government power, and historically executives have challenged them on numerous occasions. Franklin D. Roosevelt's court-packing plan, the curtailment of the Spanish constitutional court's powers in 1985, and the abolition of the constitutional courts of Cyprus in 1964 and of Austria in 1932 provide clear examples. This weak formal position thus raises a puzzle. How can constitutional courts resist executive challenges to their power and independence, or why do they fail to do so? Scholars concerned primarily with the U.S. Supreme Court have highlighted "public support" for courts as one component of court authority.3 As Caldeira has put it, "the lack of any formal connection to the electorate and its rather demonstrable vulnerability before the president and the Congress mean that the Supreme Court must depend to an extraordinary extent on the confidence, or at least the acquiescence, of the public."4 In his work on Roosevelt's court-packing plan, Caldeira has made a strong case that the justices are aware of the importance of public support and that at least on occasion they act consciously to foster it. Implicit in such emphasis on public support, of course, is the notion that directly elected officials are likely to refrain from attacking an institution whose widespread support holds out the threat of electoral punishment.5 A second argument about the authority of high courts departs from an insight of James Madison. Madison argued that successful constitutional design depends on providing the various branches with the interest and means to defend each other against encroachments.6 The political system must be set up in such a way that the interplay of various institutions serves to hold them all in check; thus, the strategic interactions of political players are a key to understanding how courts can (or fail to)

Sexual predator commitment laws: lessons for law and the behavioral sciences.

Abstract: Sex offender commitment laws use a mental health commitment model to lock up the “most dangerous” sex offenders after their prison sentences expire. In Kansas v. Hendricks, the United States Supreme Court rejected the major constitutional challenges to these laws. The Hendricks case clarifies important ambiguities about the use of civil commitment to enforce “police power” interests, as opposed to “parens patriae” interests. Hendricks also clarifies the role of “treatment” in justifying civil commitment. While there remain some important legal issues to be resolved, the future direction of sex offender commitment schemes will turn most significantly on policy decisions. The behavioral sciences can play an important role in shaping these decisions. The most significant questions concern whether expensive commitment programs are the most effective use of scarce treatment and supervision dollars. Additional research should be directed to improving dynamic predictors of recidivism, operationalizing “inability to control” standards, judging the “social meaning” of commitment laws, and assessing the potential treatment disincentives of these laws. Copyright © 2000 John Wiley & Sons, Ltd.

Once More Unto the Breach: PostBehavioralist Approaches to Judicial Politics

Abstract: The field of "public law" in political science is somewhat ill defined. Its practitioners range from political theorists interested in the normative underpinnings of the law to statisticians interested in the correlates of judicial voting. The output of the Supreme Court, however, looms large on the landscape for many approaches to the field. In the first decades of the century, political scientists were unlikely to focus specifically on the explanations for the Court's decisions but were more likely to be interested in a broad range of issues related to the courts and the law. Since the "behavioral revolution" that swept the social sciences in the 1950s, however, judicial decision making has been at the core of the field. Over the past several decades, substantial progress has been made in identifying patterns of judicial voting behavior and the determinants of Court decisions. That progress, though real, has also been narrow. The scholarly focus has been on individual justices and how they cast their votes, leaving a great deal of the judicial process relatively unexplored.

Bounty and benevolence : a history of Saskatchewan treaties

Abstract: The recent Supreme Court of Canada decision in Regina v. Marshall regarding the treaty rights of the Mi'kmaq dramatically underscored our need to understand the history of treaty relationships between Canada's First Nations and the Crown. The numbered treaties covering Canada's prairie provinces represent the culmination of the country's pre-modern treaty-making era, which ended in the early twentieth century. Sizable portions of the territories covered by six of these accords are located within the boundaries of Saskatchewan. "Bounty and Benevolence" offers a unique perspective and examination of the history of treaty making in this province. Frank Tough, Jim Miller, and Arthur Ray draw on a wide range of documentary sources to provide a rich and complex interpretation of the process that led to these historic agreements. The authors explain how Saskatchewan treaties were shaped by long-standing First Nations-Hudson's Bay Company diplomatic and economic understandings, treaty practices developed in eastern Canada before the 1870s, and the changing economic and political realities of western Canada during the nineteenth and early twentieth centuries. Tough, Miller, and Ray also show why these same forces were responsible for creating some of the misunderstandings and disputes that subsequently arose between the First Nations and government officials regarding the interpretation and implementation of the accords. "Bounty and Benevolence" offers new insights into this crucial dimension of Canadian history, making it of interest to the general reader as well as specialists in the field of First Nations history.

Health law : cases, materials, and problems

Abstract: For more than two decades, Health Law: Cases, Materials and Problems has defined the field of health law, providing a balanced overview of law as it affects patients, professionals, institutions, and entities that deliver and finance U.S. health care. The 7th Edition of Health Law comprehensively reviews the provisions of the Affordable Care Act with topics such as the oversight of quality (including the latest developments in patient safety), cost control (including consumer-directed health care), guarantees of adequate access to services, exempt-organization tax issues, transactions and relationships among health care professionals and providers, the Employee Retirement Income Security Act (ERISA), and malpractice litigation. The Supreme Court decision in National Federation of Independent Business v. Sebelius is carefully edited to present all the issues in the case. Written without a policy bias to fairly reflect all viewpoints, the book considers legal and ethical issues involving death, human reproduction, medical treatment decision making, and medical research. It also explores the government's efforts to control costs and expand access through Medicare and Medicaid and examines government attempts to police anticompetitive activities, fraud, and abuse. Using carefully edited primary materials and effective classroom-tested problems, the book exposes students to the core issues in health law using the most recent judicial and statutory materials.

The Supreme Court in American politics : new institutionalist interpretations

Abstract: For decades political scientists studying the Court have adopted behavioral approaches and focused on the relatively narrow question of how the justices' policy preferences influence their voting behavior. This emphasis has illuminated important aspects of Supreme Court politics, but it has also left unaddressed many other important questions about this unique and fascinating institution. Drawing on "the new institutionalism" in the social sciences, the distinguished contributors to this volume attempt to fill this gap by exploring a variety of topics, including the Court's institutional development and its relationship to broader political contexts such as party regimes, electoral systems, social movements, social change, legal precedents, political identities, and historically evolving economic structures. The book's initial chapters examine the nature of the Court's distinctive norms as well as the development of its institutional powers and practice. A second section relates the development of Supreme Court politics to the historical development of other political institutions and social movements. Concluding chapters explore how its decision making in particular areas of law or periods of time is influenced by and influences its socio-political milieu. These contributions offer provocative insights regarding the Court's role in maintaining or disrupting political and economic structures, as well as social structures and identities tied to ideology, class, race, gender, and sexual orientation. "The Supreme Court in American Politics" shows how we can develop an enriched understanding of this institution, and open up exciting new areas of research by placing it in the broader context of politics in the United States."

Is the Ninth Circuit too Large? A Statistical Study of Judicial Quality

Abstract: This paper provides an empirical test of the claim that the U.S. Court of Appeals for the Ninth Circuit has too many judges to be able to do a good job. Reversals (especially summary reversals) by the Supreme Court and citations are used as proxies for quality of judicial output. The overall conclusion is that (1) adding judgeships tends to reduce the quality of a court's output and (2) the Ninth Circuit's uniquely high rate of being summarily reversed by the Supreme Court (a) is probably not a statistical fluke and (b) may not be a product simply of that circuit's large number of judges.

A competing risks model of supreme court vacancies, 1789-1992

Abstract: We hypothesize that Supreme Court justices will consider the likely ideological disposition of their successor in their decision to retire or remain on the Court Furthermore, because a justice's decision to remain on the Court places him or her “at risk” of dying in office, it is necessary to consider a model of both voluntary and involuntary vacancies Our study examines three broad classes of factors influential to Supreme Court vacancies: personal considerations, institutional context, and political influences We assess the factors that affect the probability of a vacancy on the US Supreme Court due to mortality and retirement at the individual level from 1789 to 1992, using a competing risk duration model and incorporating time-varying covariates We find significant differences in the hazards of vacancy due to these two causes, and a number of factors are shown to influence the probability of a vacancy, including a general propensity to retire near the beginning of presidents' second terms However, we find little evidence of the influence of political factors in either retirement-or death-related vacancies, suggesting that justices who retire do not generally do so for expressly political reasons and those who die in office rarely do so as a result of “holding out” for a like-minded replacement

The Marshall Decision and Native Rights

Abstract: In The Marshall Decision and Native Rights Ken Coates explains the cross-cultural, legal, and political implications of the recent Supreme Court decision on the Donald Marshall case. He describes the events, personalities, and conflicts that brought the Maritimes to the brink of a major confrontation between Mi'kmaq and the non-Mi'kmaq fishers in the fall of 1999, detailing the bungling by federal departments and the lack of police preparedness. He shows how political, business, and Mi'kmaq leaders in the Maritimes handled the volatile situation, urging non-violence and speaking out against racism, in contrast to the way federal and regional leaders have responded in other parts of the country. Legal victories such as Marshall, argues Coates, are a double-edged sword that provide greater legal clarity but expand the gap between indigenous and non-indigenous peoples in Canada. Coates recounts the history of Mi'kmaq-white contact in the region and considers the impact of native rights on natural resources, showing that the costs will be borne mainly by rural Canadians. By placing the local and regional reaction to the Marshall decision in the broader historical, national, and international context of indigenous political and legal rights The Marshall Decision and Native Rights shows how little Canada has learned from three decades of First Nations legal conflicts and how far the country is from meaningful reconciliation.

Legal Evolution and Political Authority in Indonesia:Selected Essays

Abstract: Acknowledgements. Introduction. Colonial Law and the Genesis of the Indonesian State. Judicial Unification in Post-Colonial Indonesia. The Politics of Judicial Development in Indonesia. The Supreme Court and Adat Inheritance Law in Indonesia. The Lady and the Banyan Tree: Civil Law Change in Indonesia. Bush-Lawyers in Indonesia: Stratification, Representation, and Brokerage. Judicial Institutions and Legal Culture. Judicial Authority and the Quest for an Indonesian Rechtsstaat. The Origins of the Indonesian Advocacy. Legal Aid in Indonesia. Between State and Society: Professional Lawyers and Reform in Indonesia. Social Movements, Constitutionalism, and Human Rights. Index.

An Ounce of Prevention is a Poor Substitute for a Pound of Cure: Confronting the Developing Jurisprudence of Education and Prevention in Employment Discrimination Law

Abstract: This article challenges a widely shared conviction that has had a tremendous impact on employer practices and, most recently, on employment discrimination jurisprudence. More specifically, the piece interrogates the belief that employee education can prevent, or at least greatly curb, invidious employment discrimination prohibited by Title VII of the Civil Rights Act and other civil rights statutes. This premise, broadly held and rarely questioned, has spawned a multi-billion dollar sexual harassment and diversity training industry staffed by consultants, attorneys, and human resource professionals, who offer programs aimed at litigation prevention. Yet, there is absolutely no empirical support for the premise behind the instruction - that it fosters employee tolerance and greatly alters workplace culture. Even more troubling is the Supreme Court's recent embrace of anti-discrimination training as a doctrinal and jurisprudential component of Title VII's substantive law. Landmark opinions in 1998 and 1999 make clear the Court's vision of Title VII as expressly encouraging personnel policy creation and employee educational efforts. In short, the Court has elevated anti-discrimination training to the level of an affirmative defense in sexual harassment cases and a mechanism for limiting damages in discrimination cases where punitive damages are sought. Focusing on what little is known of the effects on employees of sexual harassment and diversity training, the article questions the wisdom of a reflexive and undiscerning view of these employer efforts by the Court and the legal profession as a whole. Unlike the legal profession, social scientists are disturbed by the glaring lack of empirical research on the effects of anti-discrimination training and urge caution in the endorsement of such programs. The dearth of program outcome research is dangerous for two reasons. First, preventative programs, even when adopted with the best of intentions, can have negative effects. Second, providing training gives the impression that "something is being done," lulling managers and others into a false sense of security. An ineffective educational program, however, may not reduce the incidence of workplace bias in the least. Beyond these important concerns, however, is the larger question of the significance of the developing jurisprudence of education and prevention in employment discrimination law. There is a disturbing trend in civil rights law toward acceptance of legal compliance in form rather than substance. An uncritical embrace of anti-discrimination training runs the risk of further facilitating that trend. At stake is the ultimate shape and composition of the post-affirmative action workplace. If equality is to be more than cosmetic - indeed, if employment discrimination law's preventative purpose is to be fulfilled - courts must look beyond symbols to determine whether the environment in which a plaintiff worked was actually discriminatory. The symbolic gestures of employers in providing anti-discrimination training, no matter how well intentioned, are poor substitutes for searching inquiry into the particulars of a given workplace.

American Legal Thought from Premodernism to Postmodernism: An Intellectual Voyage

Abstract: American legal thought has progressed remarkably quickly from premodernism to modernism and into postmodernism in little over two hundred years, running from the nation's founding through today. This book tells the story of this mercurial journey through jurisprudence by showing the development of legal thought through these three intellectual periods. Feldman's narrative revolves around two broad interrelated themes: jurisprudential foundations and the idea of progress. Comprehensive and accessible, the book draws on significant cases from Supreme Court history to provide a handy one-volume overview for law students, practitioners, and legal scholars.

Congressional Preferences, Perceptions of Threat, and Supreme Court Decision Making:

Abstract: Previous research examining the impact of extra-Court factors on Supreme Court decision making has developed conflicting theoretical perspectives supported with limited empirical evidence. In an at...