Showing papers on "Supreme court published in 2002"

Dynamic Ideal Point Estimation via Markov Chain Monte Carlo for the U.S. Supreme Court, 1953-1999

Abstract: At the heart of attitudinal and strategic explanations of judicial behavior is the assumption that justices have policy preferences. In this paper we employ Markov chain Monte Carlo methods to fit a Bayesian measurement model of ideal points for all justices serving on the U.S. Supreme Court from 1953 through 1999. We are particularly interested in determining to what extent ideal points of justices change throughout their tenure on the Court. This is important because judicial politics scholars oftentimes invoke preference measures that are time invariant. To investigate preference change, we posit a dynamic item response model that allows ideal points to change systematically over time. Additionally, we introduce Bayesian methods for fitting multivariate dynamic linear models to political scientists. Our results suggest that many justices do not have temporally constant ideal points. Moreover, our ideal point estimates outperform existing measures and explain judicial behavior quite well across civil rights, civil liberties, economics, and federalism cases.

The Logic of Strategic Defection: Court-Executive Relations in Argentina Under Dictatorship and Democracy

Abstract: Building on the separation-of-powers approach in American politics, this article develops a new micro-level account of judicial decision-making in contexts where judges face institutional insecurity. Against conventional wisdom, I argue that under certain conditions the lack of judicial independence motivates judges to “strategically defect” against the government once it begins losing power. The result is a reverse legal‐political cycle in which antigovernment decisions cluster at the end of weak governments. Original data on more than 7,500 individual decisions by Argentine Supreme Court justices (1976‐1995) are used to test hypotheses about why, when, and in which types of cases judges are likely to engage in strategic defection. Consistent with the theory’s predictions, the results of the analysis show a significant increase in antigovernment decisions occurring at the end of weak dictatorships and weak democratic governments. Examining subsets of decisions and controlling for several additional variables further corroborate the strategic account.

Elbridge Gerry's Salamander: The Electoral Consequences of the Reapportionment Revolution

Abstract: [Preface] Elbridge Gerry was governor of Massachusetts from 1810 to 1812. During his term, his party produced an artful electoral map intended to maximize the number of seats it could eke out of its expected vote share. Contemporary observers latched onto one district in particular, in the shape of a salamander, and pronounced it a Gerry-mander. This book is about a unique episode in the long history of American gerrymandering – the Supreme Court’s landmark reapportionment decisions in the early 1960s and their electoral consequences. The dramatis personae of our story are the state politicians who drew congressional district lines, the judges on the courts supervising their handiwork, and the candidates competing for congressional office. The plot of our story concerns the strategic adaptation of these actors to the new electoral playing field created by the Court’s decisions.

Justice Contained: Law and Politics in the European Union

Abstract: In this probing analysis of the European Union's transnational legal system, Lisa Conant explores the interaction between law and politics. In particular, she challenges the widely held view that the European Court of Justice (ECJ) has, through bold judicial activism, brought about profound policy and institutional changes within the EU's member states. She argues convincingly that this court, like its domestic counterparts, depends on the support of powerful organized interests to gain compliance with its rulings. What, Conant asks, are the policy implications of the ECJ's decisions? How are its rulings applied in practice? Drawing on the rich scholarship on the U.S. Supreme Court, Conant depicts the limits that the ECJ and other tribunals have to face. To illuminate these constraints, she traces the impact of ECJ decisions in four instances concerning market competition and national discrimination. She also proposes ways of anticipating which of this court's legal interpretations are likely to inspire major reforms.Justice Contained closes with a comparative analysis of judicial power, identifying the ECJ as an institution with greater similarities to domestic courts than to international organizations. The book advances a deeper understanding both of the court's contributions to European integration and of the political economy of litigation and reform.

Jurisprudential Regimes in Supreme Court Decision Making

Abstract: political attitudes. Jurisprudential regimes identify relevant case factors and/or set the level of scrutiny or balancing the justices will use. These jurisprudential regimes have the potential to make a significant difference in the decisions of the justices. We identify a candidate jurisprudential regime, content-neutrality, which appears to govern the general area of free expression law. The Court applies the strictest standard of review to regulations of expression that target the content or viewpoint of expression. Relying on a series of statistical tests using logistic regression, we find that the justices take seriously this jurisprudential regime. oes law influence the justices of the U.S. Supreme Court as they decide cases? Some leading scholars of the Supreme Court assert that law makes little difference. According to the most extreme version of this position, justices largely follow their personal ideological preferences-a view that the Supreme Court itself did much to enhance in Bush v. Gore (2000). If this is true, then the Supreme Court differs from a small legislative body only in the selection and tenure of its members, its technical rules of procedure, and its inability, at least formally, to initiate issues to consider. Whether or not courts generally, and the Supreme Court specifically, differ from legislative bodies has major implications for how we think about the role of courts and analyze their processes and outputs. We contend that courts, including the Supreme Court, are different, and that part of this difference is the role of law in decision making. In this article, we describe and test a new approach to incorporating law into statistical models of Supreme Court decision making. At the same time, we do not reject the importance, or even the dominance, of attitudinal influences on the Court's decisions. However, we argue that one must move beyond the images of the role of law as a mechanistic, autonomous force to arrive at a legal model that is relevant at the Supreme Court level. Segal and Spaeth (1993, 1994; Spaeth and Segal 1999), the leading proponents of the attitudinal model of Supreme Court decision making, argue that justices of the Court are free to decide cases solely in line with their policy (attitudinal) preferences and almost always do so decide. According to this interpretation the justices' freedom to pursue their own policy goals is due to their specific institutional situation: They possess life tenure, sit at the pinnacle of the judicial hierarchy, seldom have ambition for higher office, choose which cases they will decide, and have little fear of being overturned by the elected branches of government, particularly in constitutional interpretation cases (Spaeth and Segal 1999). We do not dispute that the Supreme Court's institutional setting frees justices from the kinds of constraints that are faced by lower court judges, elected officeholders, or appointees serving either fixed terms of office or at the pleasure of some other officeholder. However, freedom from review or electoral accountability does not prevent the justices themselves from erecting other constraints that shape

Do the Means Always Justify the Ends, or Do the Ends Sometimes Justify the Means? A Value Protection Model of Justice Reasoning

Abstract: This study explored whether personal identity concerns relate in important ways to how people decide whether an event is fair or unfair. Because moral mandates are selective expressions of values that are central to people’s sense of personal identity, people should be highly motivated to protect these positions from possible threat. Consistent with predictions based on a value protection model of justice, whether people had a moral mandate on abortion, civil rights, or immigration was completely independent of the perceived procedural fairness of political institutions when those institutions posed no salient threat to these policy concerns. However, strength of moral mandate, and not prethreat judgments of procedural fairness of the Supreme Court or a state referendum, predicted perceived procedural fairness, outcome fairness, decision acceptance, and other indices of moral outrage when either the Supreme Court or a state referendum posed a possible threat to perceivers’ moral mandates.

Judicializing Politics, Politicizing Law

Abstract: I INTRODUCTION Since World War II, there has been a profound shift in power away from legislatures and toward courts and other legal institutions around the world. This shift, which has been called "judicialization," (1) has become more or less global in its reach, as evidenced by the fact that it is as marked in Europe, and especially recently in Eastern Europe, as it is in the United States. The spectacles of Italian judges undermining Italy's postwar system of musical cabinets, or of newly energized French judges hounding prime ministers and presidents, are only the most visible aspects of these developments. One could also point to the role, and recent success, of judges in seeking to arrest and prosecute dictators and military leaders. Additionally, our own United States Supreme Court's intervention into electoral politics in Bush v. Gore (2) was yet another manifestation of this trend. One can distinguish at least three ways in which courts have taken on new and important roles relative to legislatures. First, courts have been increasingly able and willing to limit and regulate the exercise of parliamentary authority by imposing substantive limits on the power of legislative institutions. Second, courts have increasingly become places where substantive policy is made. Third, judges have been increasingly willing to regulate the conduct of political activity itself--whether practiced in or around legislatures, agencies, or the electorate--by constructing and enforcing standards of acceptable behavior for interest groups, political parties, and both elected and appointed officials. But judicialization is not simply limited to the increasingly important, pervasive, and direct roles that courts play in making policy. The fact that courts frequently intervene in policy-making processes also means that other political actors, as well as groups seeking political action, have reason to take the possibility of judicial reaction into account. Proposals need to be framed in a way to ensure that legislation will neither be struck down nor interpreted in Undersirable ways. In order to achieve such a result, part of the policy debate over new legislation must aim at anticipating the response of legal institutions. So, we see a global application of one aspect of the phenomenon that de Tocqueville noted about American politics years ago: the transformation of political questions into legal ones. (3) This means that legal/constitutional considerations and rhetoric assume new and sometimes decisive importance in ordinary legislative policy-making. One aspect of judicialization can be observed in the widespread adoption of institutions and practices of constitutional adjudication, even in places with legal institutions and traditions that had long been inhospitable to this process. True, the modes of constitutional adjudication adopted in Europe and elsewhere do not precisely follow the U.S. model. Ordinary European judges are not permitted to strike down legislation; that authority is confined to specialized constitutional courts located outside the judicial system. Nevertheless, many of these new European constitutional courts have been at least as willing to invalidate and modify parliamentary legislation as the U.S. Supreme Court has been--even in its most activist periods. (4) Moreover, the existence of constitutional courts has, in effect, pressed ordinary judges to take account of constitutional issues in their everyday judicial activities. For example, European judges regularly interpret legislative statutes and administrative ordinances in view of the constitution and decide which issues need to be referred to the constitutional court. (5) Moreover, the rise of constitutional adjudication has transformed the landscape of parliamentary politics by forcing legislators to take constitutional considerations into account when crafting legislative schemes. …

Equal Votes, Equal Money: Court-Ordered Redistricting and Public Expenditures in the American States

Abstract: Court-ordered redistricting in the 1960s radically altered representation in the United States. Through a series of important cases, beginning with Baker v. Carr in 1962, the U.S. Supreme Court established a criterion of strict equality of state legislative and U.S. House district populations. Prior to judicial intervention, unequal representation was the norm in U.S. legislatures, and in some states districts had extremely unequal populations. In 1960, the state legislative districts in only two states, New Hampshire and Wisconsin, approximated the one-person, onevote standard in both chambers (David and Eisenberg 1961). At the other extreme was the California state senate, with the smallest counties having 400 times as much representation as Los Angeles, the largest county in the state. Less than a decade after Baker v. Carr, every state in the country reshaped its legislative districts to comply with the Court’s rulings. Baker revolutionized representation and, we argue, fundamentally transformed the politics of public finance in the American states. Legal and legislative battles ended unequal representation in the state legislatures and the U.S. House by the close of the 1960s. We examine how political representation affected the distribution of state funds to counties in the United States from the 1950s through the 1980s. Our interest in the consequences of Baker v. Carr derives from three broad problems for contemporary democracy. First, there is a persistent and nagging question for political scientists: Does representation matter? Do people benefit materially from having formal legislative representation? Some economists argue that

The Death Penalty: An American History

Abstract: * Abbreviations * Introduction *1. Terror, Blood, and Repentance *2. Hanging Day *3. Degrees of Death *4. The Origins of Opposition *5. Northern Reform, Southern Retention *6. Into the Jail Yard *7. Technological Cures *8. Decline *9. To the Supreme Court *10. Resurrection * Epilogue * Appendix: Counting Executions * Notes * Acknowledgments * Index

Rights as trumps

Abstract: Rights are best understood as trumps over some background justification for political decisions that states a goal for the community as a whole. This paper is to put forward such an analysis and theory of rights, that is, rights as overriding I reasons over utilitarian justifications. To this end, the author refers to two kinds of argument against utilitarian background justification: the pluralistic argument and the argument from the right to moral independence. Dworkin argues that further analysis of the grounds that we have for accepting utilitarianism shows utility must yield to some right of moral independence. Utilitarianism owes its appeal to its egalitarian cast in the sense that in the calculation how best to fulfill most preferences overall, preferences of some people should not be weighed more than that of some other. To fulfill such an aim, utilitarianism is bound to accept the right to moral independence as a trump. In the second part of the paper the author replies to professor Hart's criticisms of his theory. In the preface, analyzing the unifying precedent judgment No. 645 by the Iranian Supreme Court, attempts to indicate the necessity of dealing with theories of rights such as the Dworkin's theory of "rights as trumps".

United States Supreme Court

Abstract: Furman, a black, killed a householder while seeking to enter the home at night. Furman shot the deceased through a closed door. He was 26 years old and had finished the sixth grade in school. Pending trial, he was committed to the Georgia Central State Hospital for a psychiatric examination on his plea of insanity tendered by court-appointed counsel. The superintendent reported that a unanimous staff diagnostic conference had concluded “that this patient should retain his present diagnosis of Mental Deficiency, Mild to Moderate, with Psychotic Episodes associated with Convulsive Disorder.” The physicians agreed that “at present the patient is not psychotic, but he is not capable of cooperating with his counsel in the preparation of his defense”; and the staff believed “that he is in need of further psychiatric hospitalization and treatment.”

Euthanasia and physician-assisted suicide: a review of the empirical data from the United States.

Abstract: For more than a decade, there has been an intense debate about the ethics and legality of euthanasia and physician-assisted suicide (PAS) in the United States. 1-5 In June 1997, the US Supreme Court unanimously ruled that there is neither a constitutional right nor a constitutional prohibition to euthanasia or PAS. 6,7 This permitted Oregon to experiment with legalizing PAS. During this decade, most other states have consistently opposed legalization. In the weeks after the US Supreme Court decision, the Florida Supreme Court also ruled that there is no constitutional right to PAS. 8 At least 7 state legislatures have voted to explicitly prohibit euthanasia and PAS. 9 Indeed, a bill to legalize euthanasia or PAS has been considered by a full chamber of a state legislature in only one state, Maine, and that bill was defeated 99 to 42. 10 In November 1998, 70% of the voters of Michigan resoundingly defeated a referendum to legalize PAS, while in November 2000 Maine voters also rejected legalizing PAS. 11

Making Law in the United States Courts of Appeals

Abstract: 1. Lawmaking in a hierarchical judicial system 2. Theory and hypotheses 3. The cases 4. Influences on circuit judges' responses: case evidence 5. Influences on circuit judges' responses: interview evidence 6. Anticipating the Supreme Court 7. Implications and future directions.

Republic of Debtors: Bankruptcy in the Age of American Independence

Abstract: Debt was an inescapable fact of life in early America. At the beginning of the 18th century, its sinfulness was preached by ministers and the right to imprison debtors was unquestioned. By 1800, imprisonment for debt was under attack and insolvency was no longer seen as a moral failure, merely an economic setback. In "Republic of Debtors", Bruce H. Mann illuminates this crucial transformation in early American society. From the wealthy merchant to the backwoods farmer, Mann tells the personal stories of men and women struggling to repay their debts and stay ahead of their creditors. He opens a window onto a society undergoing such fundamental changes as the growth of a commercial economy, the emergence of a consumer marketplace, and a revolution for indepencence. In addressing debt Americans debated complicated questions of commerce and agriculture, nationalism and federalism, dependence and independence, slavery and freedom. And when numerous prominent men - including the richest man in America and a justice of the Supreme Court - found themselves imprisoned for debt or forced to become fugitives from creditors, their fate altered the political dimensions of debtor relief, leading to the highly controversial Bankruptcy Act of 1800. Whether a society forgives its debtors is not just a question of law or economics; it goes to the heart of what a society values. In chronicling attitudes toward debt and bankruptcy in early America, Mann explores the very character of American society.

Euthanasia, ethics and public policy : an argument against legalisation

Abstract: Part I. Definitions: 1. Euthanasia and physician-assisted suicide 2. Intended v. foreseen life-shortening Part II. The Ethical Debate: Human Life, Autonomy, Legal Hypocrisy, and the 'Slippery Slope' 3. The value of human life 4. The value of autonomy 5. Legal hypocrisy? 6. The slippery slope arguments Part III. The Dutch Experience: 7. The guidelines 8. The first survey: the incidence of 'euthanasia' 9. Breach of the guidelines 10. The slide towards NVAE 11. The second survey 12. The Dutch in denial? 13. The Euthanasia Act and the Code of Practice 14. Effective control since 2002? 15. Continuing concerns 16. A right to physician-assisted suicide by stopping eating and drinking? 17. Assisted suicide for the elderly with 'completed lives' Part IV. Belgium: 18. The Belgian Legislation 19. The lack of effective control Part V. Australia: 20. The Northern Territory: ROTTI Part VI. The United States: 21. The United States: Oregon and six other jurisdictions 22. The US Supreme Court: Glucksberg and Vacco Part VII. Canada: 23. The Supreme Court of Canada: the Carter case 24. Canada's euthanasia legislation 25. Conclusion.

The Principle and Practice of Women's 'Full Citizenship': A Case Study of Sex-Segregated Public Education

Abstract: For more than a quarter century, the Supreme Court has repeatedly declared that sex-based state action is subject to heightened scrutiny under the Equal Protection Clause. But the Court has always been much less clear about what that standard allows and what it prohibits. For this reason, it is especially noteworthy that one of the Court's most recent sex discrimination opinions, United States v. Virginia, purports to provide more coherent guidance. Virginia suggests that the constitutionality of sex-based state action turns on whether the practice at issue denies women "full citizenship stature" or "create[s] or perpetuate[s] the legal, social, and economic inferiority of women." Yet the opinion does not begin to indicate how the sex discrimination jurisprudence might implement this new standard. In particular, it does not tell us how to determine whether any specific practice deprives women of "full citizenship" or maintains their "inferiority." This Article attempts to give some content to the framework that Virginia presents. More specifically, it explores how analyzing the historical record of a practice can inform an investigation into whether, when, and why that practice is consistent with women's "full citizenship stature" or operates to perpetuate their "legal, social, and economic inferiority." The Article takes the historical record of sex-segregated public education in the United States as its case study. That record is an especially apt place to begin because Virginia directly concerned the constitutional status of a single-sex public school.

Overruled: An Event History Analysis of Lower Court Reaction to Supreme Court Alteration of Precedent

Abstract: While past research has demonstrated widespread compliance in the Courts of Appeals with Supreme Court precedent (e.g., Gruhl 1980; Songer 1987; Songer, Segal, and Cameron 1994; Songer and Sheehan 1990), compliance is not automatic and is surely political. We examine compliance with Supreme Court overrulings of precedent-cases in which we might expect the lowest levels of compliance with Supreme Court policy prescriptions. We argue that several variables are relevant to the compliance decision and that those variables fall into two broad categories: characteristics of the Supreme Court precedent and characteristics of the circuit applying the precedent. In our event history analysis, we find that both precedent and circuit characteristics determine whether, and how quickly, a circuit follows a Supreme Court decision that overrules existing precedent; that is, unanimity, complexity, and the age of the overruled precedent, as well as the likelihood of Supreme Court review, are related to the compliance deci...

Tobacco Advertising in the United States: A Proposal for a Constitutionally Acceptable Form of Regulation

Abstract: Lorillard Tobacco Co. v Reilly is the latest in a series of Supreme Court cases striking down public health regulation of advertising as a violation of the First Amendment. In its decision, the Supreme Court significantly reduced the scope of constitutionally acceptable forms of regulation of tobacco advertising and created an almost insoluble dilemma for public health authorities. Control over advertising, along with taxes and restrictions on smoking in public settings, plays an important role in the public health response to tobacco. Those committed to reducing the patterns of cigarette-related morbidity and mortality should broaden their advertising-related strategies and consider the role that greater disclosure of the health harms of tobacco can have on reducing consumption. Toward this end, we propose a comprehensive system of taxation and regulation designed to increase public appreciation and comprehension of the health risks of cigarettes. First, we consider a tax to be levied on tobacco advertising and promotion or, as an alternative, a new excise tax, the proceeds of which would be used exclusively to fund a Centers for Disease Control and Prevention–directed national antitobacco campaign. Second, all print advertising should be required to carry public health warnings equivalent to 50% of the space devoted to the advertisement. Third, manufacturers should be required to devote one full side of cigarette packages to graphic pictorials displaying the dangers of smoking. The tobacco industry would no doubt respond by declaring such efforts an unwarranted burden, an example of constitutionally suspect compelled speech. However, this would be a battle worth engaging, because it might have an impact on tobacco-related morbidity and mortality in the United States.

Into the Frying Pan: Standing and Privity under the Telecommunications Act of 1996 and Beyond

Abstract: Any legal system must make a trade-off between two components of optimal law enforcement. The first requires all persons injured by some wrongful conduct to recover full damages in order to create optimal incentives for primary conduct. The second requires some limit on the number of potential of wrongful suits arising out of wrongful conduct, in order to contain the administrative and error costs of legal enforcement. In most practical settings, the second of these concerns has proved more important than the former, which has led to the creation of a practical standing doctrine recognized in the Supreme Court's decisions in Illinois Brick (1977) and Holmes (1992). One component of standing is the so-called privity limitation, which limits suits to parties who are immediate purchasers from the wrongdoer. The privity limitation has applied to common law actions, and to statutory causes of action under both the general antitrust law and direct schemes of regulation. This paper explores the evolution and justifications for the privity doctrine, and then argues that the recent suits, such as Goldwasser (2000) and Trinko (2002) that have allowed indirect purchasers of telecommunications services to have standing against Local Exchange Carriers under the Sherman Act misread the relevant legal authority, and overlooks the important practical function of both standing and privity limitations.

Judge and Attorney Experiences, Practices, and Concerns Regarding Expert Testimony in Federal Civil Trials

Abstract: The results of 3 surveys (1 each of federal judges in 1991 and 1998 and another of attorneys in 1999) indicate that practices and beliefs concerning expert testimony have changed in the wake of the 1993 Supreme Court decision on admissibility in Daubert v. Merrell Dow Pharmaceuticals, Inc. Reporting both on their general experience with expert testimony and on their most recent civil trial involving such testimony, judges and attorneys indicated that judges were more likely in 1998 than in 1991 to scrutinize expert testimony before trial and then limit or exclude proffered testimony. The results describe common problems with expert testimony, the characteristics of trials in which expert testimony is introduced, and the types of experts who testify.

Explaining the Overruling of U.S. Supreme Court Precedent

Abstract: The decision to overrule precedent, we argue, results from the justices’ pursuit of their policy preferences within intra- and extra-Court constraints. Based on a duration analysis of cases decided from the 1946 through 1995 terms, we show that ideological incongruence between a precedent and a subsequent Court increases the chance of it being overruled. Two legal norms also exert substantive effects, as the Court is less likely to overrule statutory precedents and more likely to overrule precedents that have been previously interpreted negatively by the Court. While certain precedent characteristics also influence this decision, the political environment exerts no such effect. Consequently, one of the principal implications of this research is that legal norms influence Supreme Court decision making.

Din-u devlet all over again? the politics of military secularism and religious militarism in turkey following the 1980 coup

Abstract: Current discussions on the political developments in Turkey frequently frame the struggles between the military and religious parties as a war between secularism and Islam and draw out incommensurable differences between the two sides. Indeed, the military establishment, which casts itself as the guardian of the secular republic, succeeded in 1997 in having the Supreme Court ban the Welfare Party, the first openly religious party ever to form a government in the Turkish Republic. The generals justified this seemingly undemocratic move by claiming that that this party was trying to reinstate the sacred shari[ayin]a law.

Existing Diversity and Judicial Selection: The Role of the Appointment Method in Establishing Gender Diversity in State Supreme Courts

Abstract: Objectives. To explore differences in the appointment and election method of selecting state high court justices in promoting gender diversity, and to explore the effect of existing gender diversity within the political institutions on the selection of women to office. Methods. Our data include all justices who have been selected to state courts of last resort from 1980 through 1997. We use logistic regression analysis to test the effect of existing gender diversity on a high court on the likelihood that a woman will be selected to fill a vacancy. Results. Women are significantly more likely to be selected to a state high court when initially appointed, and this effect is particularly pronounced when the governor is Democratic. When an appointment system is used, women are much more likely to be appointed to an all-male court than to a gender-diverse court. Conclusions. Appointment systems are more likely to create gender diversity on state courts; however, this effect operates primarily to diversify all-male courts. This difference between appointment and election systems may reflect differences in knowledge between elite actors and the mass public about the composition of the institution.

Identifying the median justice on the Supreme Court through multidimensional scaling: Analysis of "natural courts" 1953-1991 ∗

Abstract: Given the fundamental unidimensionality in thedata on Supreme Court voting patterns1951–1993 we observe, we are able todetermine the identity of ``median'' membersof each court in a fashion that does notrequire subjective coding of the extent towhich particular cases reflect left-rightissues. Also, while the exact numericalvalues of MDS-obtained locations cannot becompared across different ``natural courts'',the positions of Supreme Court justicesacross their careers relative to the courtson which they served can be traced. Ourdata show overwhelming quantified evidenceof a very strong rightward drift (relativeto our MDS defined dimensions) in thecomposition of the court as we move fromthe Warren Court to the Burger Court, andagain as we move from the Burger Court tothe Rehnquist Court.

Embryo and stem cell research in the United States: history and politics.

Abstract: Stem cell research in the United States is inevitably connected with the politics of abortion. Since 1973, when the Supreme Court Roe v Wade decision legalized abortion, the US government has refused to fund embryo research, including IVF, because Congress feared this would encourage women to have abortions. IVF and infertility research have taken place in an unregulated private sector. Bush's decision allowing federal funds for research on stem cells derived before 9 August 2001 may be the first use of federal finds, though the overall ban on embryo research still stands. This paper examines 30 years of US refusal to fund embryo research, cultural background, religious beliefs as these affect stem cell research, as well as the ethical issues related to creating blastocysts to specifically derive stem cells, and therapeutic cloning.

Tobacco, Commercial Speech, and Libertarian Values: The End of the Line for Restrictions on Advertising?

Abstract: In June of 2001, the Supreme Court overturned a set of antitobacco measures adopted by the state of Massachusetts designed to protect young people from advertising. Once again, the court expressed its hostility toward measures designed to restrict commercial speech in the name of the social good. In so doing, the court underscored the enduring tension between the libertarian and social welfare dimensions of contemporary democracy and placed into relief the divisions within the American liberal tradition.

The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five

Abstract: How is it that the countermajoritarian difficulty became the central frame for constitutional theory for the last fifty years? That is the question taken up in this, the last installment of the history of the countermajoritarian difficulty. The piece explains in successive sections that the countermajoritarian problem so prominent in legal scholarship is neither the same as the occasional criticism leveled at courts engaged in controversial exercises of judicial review, nor necessarily related to the task of political theory of explaining the legitimacy of any branch of government in a democracy. Rather, the academic obsession with the countermajoritarian difficulty was born out of historically contingent circumstances present at the middle of the twentieth century, circumstances that haunt us still - though they need not. The criticism that courts are acting contrary to the will of the majority has been heard throughout history, but it was most prominent during the Progressive Era. It made sense then, as courts were striking down legislative enactments of recent vintage with a strong democratic pedigree. At mid-century, however, popular criticism of the Supreme Court sometimes included this countermajoritarian claim, and sometimes did not, depending precisely on what the Court was doing. Nonetheless, academics became fixated on the problem, even when the public was far less concerned and the criticism inapt. Why did this happen?It is important to recall that the countermajoritarian problem emerged in the course of justifying judicial review, not criticizing it. After the Realists had exploded the myth that constitutional standards were determinate, academics at mid-century struggled to define a role for courts that justified aggressive judicial review in defense of individual liberty and equality. Their concern about this judicial role was expressed in countermajoritarian terms, not because those terms were apt, but because they echoed the Progressive Era battle cries of their most honored teachers - Thayer, Holmes, Hand and Frankfurter. The problem these academics struggled with was unique to political liberals, who - at that time - supported both halves of the countermajoritarian equation: they approved of the work of the Warren Court, but believed in popular democracy as well. Unlike their predecessors, these academics had come to need the Court, but struggled with their inheritance of skepticism about judicial review.Today, liberal academics are more concerned with criticizing the Court than with justifying its work. Yet, echoing Progressive Era critics, these scholars are attacking the Court by raising concerns about its democratic pedigree. These two projects sound similar, but they are very different. Constitutional "theory" flip-flops between attacking the Court and justifying it, depending primarily on who is sitting on the Supreme Court bench and the agenda they are pursuing. It should not be thus; we need a constitutional theory that is less historically contingent and more enduring. The historical perspective offered here can help us see this.

The Imperial Republic: A Comparison of the Insular Territories under U.S. Dominion after 1898

Abstract: The doctrine of incorporation, as elaborated in legal debates and legitimated by the U.S. Supreme Court, excluded the inhabitants of Puerto Rico, the Philippines, and Guam from the body politic of the United States on the basis of their cultural differences from dominant European American culture. However, in spite of their shared legal status as unincorporated territories, the U.S. Congress established different governments that, although adaptations of continental territorial governments, were staffed largely with appointed imperial administrators. In contrast, Hawai9i, which had experienced a long period of European American settlement, received a government that followed the basic continental model of territorial government. Thus, the distinction between the incorporated and unincorporated territories corresponded to the limits of European American settlement. However, even among the unincorporated territories, cultural evaluations were important in determining the kinds of rule. The organic act for Puerto Rico provided for substantially more economic and judicial integration with the United States than did the organic act for the Phillippines. This followed from the assessment that Puerto Rico might be culturally assimilated while the Phillippines definitely could not. Moreover, religion was the criterion for determining different provincial governments within the Phillippines. In Guam, the interests of the naval station prevailed over all other considerations. There, U.S. government officials considered the local people to be hospitable and eager to accept U.S. sovereignty, while they largely ignored the local people9s language, culture, and history. In Guam, a military government prevailed.