Showing papers on "Supreme court published in 2006"

Judges and Their Audiences: A Perspective on Judicial Behavior

Abstract: List of Tables ix Preface xi Acknowledgments xiii Chapter 1: Thinking about Judicial Behavior 1 Models of Judicial Behavior 5 Shared Assumptions: The Judge as Mr. Spock 9 Limitations of the Dominant Models 19 Audience as a Perspective 21 Chapter 2: Judging as Self-Presentation 25 People and Their Audiences 25 Judicial Self-Presentation: A First Look 32 Audiences and Judicial Behavior 43 Chapter 3: Court Colleagues, the Public, and the Other Branches of Government 50 Court Colleagues 50 The General Public 60 The Other Branches 72 Conclusions 85 Chapter 4: Social and Professional Groups 88 Social Groups 88 Professional Groups: Lawyers and Judges 97 Conclusions 116 Chapter 5: Policy Groups, the News Media, and the Greenhouse Effect 118 Policy Groups 118 The News Media 135 A Greenhouse Effect? 139 Conclusions 155 Appendix: Procedures for Analysis of Voting Change by Supreme Court Justices 155 Chapter 6: Implications for the Study of Judicial Behavior 158 Motivational Bases for the Dominant Models 158 Departures from the Dominant Models 162 Probing the Impact of Judicial Audiences 171 Some Final Thoughts 174 References 177 Name Index 221 Subject and Case Index 229

Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It)

Abstract: Prelude: The Wisdom of Thomas Jefferson Introduction: A Tale of Two Signings 1. The Ratification Referendum: Sending the Constitution to a New Convention for Repair 2. Our Undemocratic Legislative Process 3. The Legacy of Article II: Too-Powerful Presidents, Chosen in an Indefensible Process, Who Cannot Be Displaced Even When They Are Manifestly Incompetent 4. Life Tenure for Supreme Court Justices: An Idea Whose Time Has Passed 5. The Constitution as Creator of Second-Class Citizens 6. The Impermeable Article V 7. Disenchantment and Desire: What Is to Be Done? Coda: The Wisdom of Woodrow Wilson Appendix: The Constitution of the United States Notes Acknowledgments Index

Law as a means to an end : threat to the rule of law

Abstract: Introduction Part I. The Spread of Legal Instrumentalism: 1. Non-instrumental views of law 2. Changing society and common law in the nineteenth century 3. Nineteenth century legislation and legal profession 4. Instrumentalism of the legal realists 5. Twentieth century Supreme Court instrumentalism Part II. Contemporary Legal Instrumentalism: 6. Instrumentalism in legal academia in the 1970s 7. Instrumentalism in theories of law 8. Instrumentalism in the legal profession 9. Instrumentalism of cause litigation 10. Instrumentalism and the judiciary 11. Instrumentalism in legislation and administration Part III. Corroding the Rule of Law: 12. Collapse of higher law, deterioration of common good 13. The threat to legality Epilogue.

The Politics of Precedent on the U.S. Supreme Court

Abstract: List of Figures and Tables ix Acknowledgments xi Chapter One: Introduction 1 Chapter Two: Explaining the Interpretation of Precedent 16 Chapter Three: Measuring the Interpretation of Precedent 43 Chapter Four: The Interpretation of Precedent over Time 55 Chapter Five: The Overruling of Precedent 78 Chapter Six: The Interpretation of Precedent in Majority Opinions 93 Chapter Seven: Lower Federal Court Responses to the Supreme Court's Interpretation of Precedent 109 Chapter Eight: Concluding Remarks and Broader Implications 124 Appendix 135 References 139 Index 151

Not Your Father's Police Department: Making Sense of the New Demographics of Law Enforcement

Abstract: Several decades ago, when social scientists were discovering the police, and the Supreme Court was beginning to construct the modern law of criminal procedure, American law enforcement was structured roughly the same way it is today. Policing was largely a local responsibility. Departments were organized hierarchically and quasi-militarily. Line officers exercised wide discretion. Patrol and detective functions were separated, and most officers were assigned to patrol. Detectives, like supervisors, started out as patrol officers and were promoted from within. The critical operational unit was the squad: a handful of line officers supervised by a sergeant, or in the case of detectives, by a lieutenant. Officers generally began police work when young and made it their career. All of this remains true today. "As a legal and organizational entity," David Garland is right to observe, "the public police look much the same today as they did thirty years ago."1

Constitutional Review and the Selective Promotion of Case Results

Abstract: A significant majority of the world’s constitutional courts publicize their decisions through direct contact with the national media. This interest in public information is puzzling in so far as constitutional judges are not directly accountable to voters. Ia rgue that the promotion of case results is consistent with a theory of judicial behavior in which public support for courts can undermine incentives for insincere decision making. In this article, I develop a simple game theory model that identifies how case promotion is linked to judicial choice. Results of a simultaneous equations model estimating the Mexican Supreme Court’s merits decisions and its choices to publicize those decisions by issuing press releases to national media outlets support an account of constitutional review in which judges believe they can influence their authority through case promotion.

The Law of Other States

Abstract: The question whether courts should consult the laws of "other states" has produced intense controversy. But in some ways, this practice is entirely routine; within the United States, state courts regularly consult the decisions of other state courts in deciding on the common law, the interpretation of statutory law, and even on the meaning of state constitutions. A formal argument in defense of such consultation stems from the Condorcet Jury Theorem, which says that under certain conditions, a widespread practice, accepted by a number of independent actors, is highly likely to be right. It follows that if a large majority of states make a certain decision, there is good reason to believe that the decision is correct. For the Jury Theorem to apply, however, three conditions must be met: states must be making judgments based on private information; states must be relevantly similar; and states must be making decisions independently, rather than mimicking one another. An understanding of these conditions offers qualified support for the domestic practice of referring to the laws of other states, while also raising some questions about the Supreme Court's reference to the laws of other nations. It is possible, however, to set out the ingredients of an approach that high courts might follow, at least if we make certain assumptions about the legitimate sources of interpretation. Existing practice, at the domestic and international levels, suggests that many courts are now following an implicit Condorcetian logic.

Shattering the Myth of Legality: The Impact of the Media's Framing of Supreme Court Procedures on Perceptions of Fairness

Abstract: The tendency of the media to depict the Supreme Court as inherently apolitical, some scholars argue, is part of the reason that many believe in the “myth of legality” in which the Court is perceived to operate above the ideological skirmishes of everyday politics. Our experimental analyses show that citizens react more negatively to press reports of a politically motivated Court than they do to coverage portraying a Court that strictly follows legal guidelines. Interestingly, our results also suggest that it is not so much the perceived absence of political wrangling among justices but rather it is the presence of legal guidelines driving the outcome that is the source of the perception of fairness.

The Changing Dynamics of Senate Voting on Supreme Court Nominees

Abstract: A near-universal consensus exists that the nomination of Robert Bork in 1987 triggered a new regime in the Senate's voting over presidential nominees—a regime that deemphasizes ethics, competence, and integrity and stresses instead politics, philosophy, and ideology. Nonetheless, this conventional wisdom remains largely untested.In this paper we explore the extent to which the Bork nomination has affected the decisions of U.S. senators. To do so, we modernize, update, and backdate the standard account of confirmation politics offered by Cameron, Cover, and Segal (1990) to cover all candidates for the Supreme Court from Hugo L. Black in 1937 through John G. Roberts, Jr. in 2005.Our results confirm conventional wisdom about the Bork nomination but with two notable caveats. First, while the importance of ideology has reached new heights, the Senate's emphasis on this factor had its genesis some three decades earlier, in the 1950s. Second, while ideology is of paramount concern to senators, a candidate's prof...

Do Judges Make Regulatory Policy?: An Empirical Investigation of Chevron

Abstract: In the last quarter-century, the Supreme Court has legitimated agency authority to interpret regulatory legislation, above all in Chevron U.S.A., Inc v Natural Resources Defense Council, Inc, the most-cited case in modern public law. Chevron recognizes that the resolution of statutory ambiguities often requires judgments of policy; its call for judicial deference to reasonable interpretations was widely expected to have eliminated the role of policy judgments in judicial review of agency interpretations of law. But this expectation has not been realized. On the Supreme Court, conservative justices vote to validate agency decisions less often than liberal justices. Moreover, the most conservative members of the Supreme Court show significantly increased validation of agency interpretations after President Bush succeeded President Clinton, and the least conservative members of the Court show significantly decreased validation rates in the same period. In a similar vein, the most conservative members of the Court are less likely to validate liberal agency interpretations than conservative ones and the least conservative members of the Court show the opposite pattern. Similar patterns can be found on federal appellate courts. In lower court decisions involving the EPA and the NLRB from 1990 to 2004, Republican appointees demonstrated a greater willingness to invalidate liberal agency decisions and those of Democratic administrations. These differences are greatly amplified when Republican appointees sit with two Republican appointees and when Democratic appointees sit with two Democratic appointees.

Bargaining and Opinion Assignment on the U.S. Supreme Court

Abstract: We formulate a new game-theoretic model of bargaining on the U.S. Supreme Court. In the model, a degree of monopoly power over policy endogenously accrues to the assigned writer despite an "open rule" for the other justices. We assume justices are motivated ultimately by a concern for judicial policy, but that the policy impact of an opinion depends partly on its persuasiveness, clarity, and craftsmanship - its legal quality. The effort-cost of producing a high quality opinion creates a wedge that the assignee can exploit to move an opinion from the median without provoking a winning counter-offer. We use this bargaining model as the foundation for a formal analysis of opinion assignment. Both the bargaining and opinion assignment models display rich and tractable comparative statics, allowing them to explain well-known empirical regularities as well as generate new propositions, within a unified and internally consistent framework.

The Right to Mobility: The Production of Mobility in the Courtroom

Abstract: This paper considers the way mobility has been given meaning by decisions in the United States Supreme Court. It argues that in four key decisions the Court constructed a de facto “right to mobility” by linking mobility to notions of citizenship. The paper suggests that these cases illustrate the importance of considering how mobilities are given meaning in particular contexts and how these meanings are framed within notions of mobility as an essential human freedom. The paper is framed by discussions of mobility, rights and citizenship and concludes with a discussion of the role of othering in the production of mobility-as-citizenship.

Testimony and interrogation of minors: assumptions about maturity and morality.

Abstract: This article examines the legal histories and social contexts of testimony and interrogation involving minors, developmental research on suggestibility and judgment, interactions between development and legal/sociological contexts, and the reasoning behind how minors are treated in different legal contexts. The authors argue (a) that young witnesses, victims, and suspects alike possess youthful characteristics that influence their ability to validly inform legal processes, some of which were recently recognized by the Supreme Court as they apply to the juvenile death penalty, and (b) that consideration should be given to reforming current practices in the context of juvenile interrogation. ((c) 2006 APA, all rights reserved).

The Influence of Oral Arguments on the U.S. Supreme Court

Abstract: We posit that Supreme Court oral arguments provide justices with useful information that influences their final votes on the merits. To examine the role of these proceedings, we ask the following questions: (1) what factors influence the quality of arguments presented to the Court; and, more importantly, (2) does the quality of a lawyer's oral argument affect the justices' final votes on the merits? We answer these questions by utilizing a unique data source—evaluations Justice Blackmun made of the quality of oral arguments presented to the justices. Our analysis shows that Justice Blackmun's grading of attorneys is somewhat influenced by conventional indicators of the credibility of attorneys and are not simply the product of Justice Blackmun's ideological leanings. We thus suggest they can plausibly be seen as measuring the quality of oral argument. We further show that the probability of a justice voting for a litigant increases dramatically if that litigant's lawyer presents better oral arguments than the competing counsel. These results therefore indicate that this element of the Court's decisional process affects final votes on the merits, and it has implications for how other elite decision makers evaluate and use information.

The Power of Legitimacy and the Legitimacy of Power: International Law in an Age of Power Disequilibrium

Abstract: The American Society of International Law (ASIL), incorporated by Act of Congress in 1950, was founded in 1906 “to promote the establishment and maintenance of international relations on the basis of law and justice.” As we celebrate the centennial of this, the Society’s principal publication, it is appropriate to examine the present and future prospects of this project. Is it still a compelling aspiration in the era of U.S. superpower-dom? The founding of the Society and initiation of the Journal (AJIL) must be seen in the context of the then-prevalent American commitment to the idea that a world of international law and international tribunals would be a natural, even historically inevitable, extrapolation of a good American idea. Speaking in 1890 to the first Pan-American Conference, President Benjamin Harrison congratulated the delegates on formulating a hemispheric arbitration agreement. “We rejoice,” he said, “that you have found in the organization of our Government something suggestive and worthy of imitation.” At The Hague in 1907, Secretary of State Elihu Root, the founding president of the ASIL, called for the creation of an international court “which would pass upon questions between nations with the same impartial and impersonal judgment that the Supreme Court of the United States gives to questions arising between citizens of the different States.”

Waiting for Gautreaux: A Story of Segregation, Housing, and the Black Ghetto

Abstract: In 1966, Alexander Polikoff, a thirty-nine-year old volunteer ACLU attorney and a partner in a Chicago law firm, met three friends to discuss a pro bono case. Over lunch, they talked about the Chicago Housing Authority construction program. All the new public housing, it seemed, was going into black neighborhoods. If discrimination was prohibited in public schools, wasn't it also prohibited in public housing? And so began Gautreaux v. CHA and HUD, a case that would roll on year after year, decade after decade, carrying Polikoff and his intrepid colleagues to the nation's Supreme Court. Despite legal roadblocks and political constraints, the case would set the stage for a nationwide experiment aimed at ending the concentration - and racialization - of poverty through public housing. Inspiring and absorbing, the narrative of Gautreaux as told by its principal lawyer moves with ease through local and national civil rights history. Ultimately, this story - itself a critical, still-unfolding chapter in recent American history - urges us to take an essential step toward ending racial inequality, which Alexis de Tocqueville prophetically named America's "most formidable evil."

Pulling Punches: Congressional Constraints on the Supreme Court’s Constitutional Rulings, 1987–2000

Abstract: To date, no study has found evidence that the U.S. Supreme Court is constrained by Congress in its constitutional decisions. We addressed the selection bias inherent in previous studies with a statute-centered, rather than a case-centered, analysis, following all congressional laws enacted between 1987 and 2000. We uncovered considerable congressional constraint in the Court's constitutional rulings. In particular, we found that the probability that the Rehnquist Court would strike a liberal congressional law rose between 47% and 288% as a result of the 1994 congressional elections, depending on the legislative model used.

Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases:

Abstract: The theoretical and empirical debate over the ability of the U.S. Supreme Court to influence public opinion through its decisions is far from settled. Scholars have examined the question using a variety of theoretical perspectives and empirical evidence, but there is no theoretical consensus, nor are the empirical studies without methodological weaknesses. We enter this debate in an attempt to bring some clarity to the theoretical approaches, overcome some of the methodological shortcomings, and bring a yet unstudied issue area, Court decisions on gay civil rights, under scrutiny. We argue that the ability of Court decisions to influence public opinion is a function of the salience of the issue, the political context, and case specific factors at the aggregate level. At the individual level these factors are also relevant, but citizen characteristics must also be taken into consideration. Our analysis of aggregate level and individual level opinion does indeed suggest that Court decisions can influence pu...

The big chill--inserting the DEA into end-of-life care.

Abstract: In October, the U.S. Supreme Court heard arguments in Gonzales v. Oregon. Drs. Timothy Quill and Diane Meier write that beneath the surface of this case lies the risk of empowering agents of the Drug Enforcement Agency to evaluate the end-of-life practices of physicians whose patients die while receiving prescribed opioids or barbiturates.

The Influence of Jurisprudential Considerations on Supreme Court Decisionmaking: A Study of Conflict Cases

Abstract: In this study, we assess the impact of attitudinal and jurisprudential factors on the Supreme Court's resolution of intercircuit conflicts. In doing so, we depart from earlier efforts to assess the impact of legal factors that conceptualize law as an external constraint. Instead, we view jurisprudential considerations in terms of the justices' efforts to adopt the most legally persuasive position in light of accepted methods of legal reasoning. Our analyses reveal that the justices are (1) more likely to follow the reasoning process adopted by the majority of circuits involved in the conflict, (2) less likely to adopt the conflict position marred by contrary dissents and concurrences in the circuit court opinions, and (3) more likely to adopt the conflict position endorsed by prestigious circuit court judges. Our findings suggest that jurisprudential considerations, as well as attitudinal concerns, affect the justices' decisionmaking processes in a substantial minority of cases.

The Politics of Judicial Review

Abstract: This article marries the positive literature regarding judicial behavior to the normative literature regarding judicial review. Though scholars in the legal and political science academies both study judicial review, their approaches are dramatically different. Legal scholars tend to the normative, studying how judges should behave. Political scientists and political economists ask positive questions: how do judges behave, and why? The central thesis of the article is that normative literature about judicial review will remain impoverished until it takes account of the positive scholarship. Ought implies can; much of the positive literature suggests judges cannot or will not behave as normative scholars demand. The article proceeds in four parts. After an Introduction, there is a brief historical discussion to explain why normative and positive scholarship parted company in the early 1940s. The heart of the article follows. This part is a comprehensive examination of the political influences on the constitutional judges. Beginning with the politics of the judge herself, the article then moves out in concentric circles to examine (a) the politics of judging on a collegial court; (b) the difficulties the Supreme Court faces in managing a large judicial hierarchy; (c) the influences of the other branches on Supreme Court decisionmaking; and (d) the relationship between public opinion and judicial review. In each section the goal is to show how confronting normative aspiration with political reality refocuses the questions that ought to be asked about judicial review. A subsidiary goal is to introduce normative scholars who are unaware to the vast positive literature about judicial behavior. The final part examines how the political influences described here ought to bear upon normative scholarship on judicial review.

Did Earnings Conservatism Increase for Former Andersen Clients

Abstract: The unexpected fall of Arthur Andersen is an extraordinary event. Though Arthur Andersen was initially convicted in 2002, subsequently, the Supreme Court unanimously threw out the conviction. Was the Department of Justice hasty in shutting down Arthur Andersen? Could the managers and the new auditors of former Andersen clients have restored financial reporting credibility? This study examines whether earnings conservatism has increased for a sample of former Arthur Andersen clients that were forced to switch auditors in year 2002. Relative to control samples consisting of audit clients of remaining brand name auditors that did not switch auditors and those that switched within Big 4 auditors, this study finds that earnings conservatism has increased for former Andersen clients that switched to a Big 4 auditor. Further, the level of conservatism for 2002 for former Andersen clients is even higher than the ones observed for a matched sample of non-Andersen clients that did not switch auditors. These findings suggest that in the post-Andersen world, Big 4 auditors and managers use earnings conservatism as a risk management strategy.

Sorcerers' Apprentices: 100 Years of Law Clerks at the United States Supreme Court

Abstract: IllustrationsAcknowledgments Preface: Awesome Responsibility and Complete Subservience 1 Introduction: The Institutionalization of the Supreme Court Law Clerk 2 A Great Ordeal: Selecting Supreme Court Law Clerks 3 The Junior Court: Deciding to Decide 4 Decision Making: Mission-Inspired Crusaders? 5 Opinion Writing: From Research Assistants to Junior Justices 6 Conclusion: Sorcerers' Apprentices Appendix A. "Memorandum for the Law Clerks" from the Chambers of Chief Justice Earl Warren Appendix B. Letter from Stephen G. Breyer to Earl Warren, October 6, 1963 Appendix C. Letter from John Minor Wisdom to Hugo Black, October 15, 1965 Appendix D. Justice Harry A. Blackmun's Talking Points for Interviewing Prospective Law Clerks Appendix E. Memorandum from Molly McUsic to Harry A. Blackmun, re: Certiorari Petition,Planned Parenthood v. Casey, January 4, 1992 Appendix F. Memorandum from Stephanie A.Dangel to Harry A. Blackmun, June 26, 1992 Appendix G. United States Supreme CourtLaw Clerk Questionnaire Notes BibliographyIndex About the Authors

Thinking about Sodomy: Public Schools, Legal Panopticons, and Queers.

Abstract: This article explores the status of U.S. public school educators both queer and non-queer who have historically resided at the intersection of sodomy laws and professional norms including licensure, morality clauses, and professional socialization. Employing Foucault’s notion of panopticism, the author examines how sodomy laws and professional norms—which are social norms—have historically shaped the work environment of public school educators. Furthermore, this article explores how both queer and non-queer public school administrators have functioned as sexuality and gender police. It also briefly examines the current state of civil rights law at both the state and federal levels regarding queer people. It concludes with a discussion of the recent U.S. Supreme Court case Lawrence v. Texas and the larger issues of the politics of state-sponsored stigma and the politics of social justice for U.S. public schools.

The Politics of Judicial Review

Abstract: I. Introduction In the legal academy, scholarship about judicial review is predominantly normative. It is largely about how judges should decide cases1 and what posture they ought to take toward the work of other institutions.2 This normative focus on the behavior of judges is common irrespective of whether the intended audience is other academics, political officials, or judges themselves. Outside the legal academy, the interest in how judges behave is more "positive." That is to say, the focus in other disciplines is not so much on how judges should behave, as on how they do and why.3 Positive theorists ask what motivates judges to decide cases as they do and what forces are likely to influence judges' decisions. The normative and positive projects have traveled on largely separate tracks, in part because the forces positive theorists identify as influencing judges commonly are political ones. "Politics" is used here in a fairly capacious sense, referring to any influences on a judge's resolution of a case other than an independent judgment of the law as applied to the facts before the court.4 But the political forces identified by positive scholars are often quite base: Many positive theorists suggest that judicial ideology plays a significant role in how judges decide cases5 and that judges respond to pressures from other political actors.6 Positive scholars believe these forces play a large hand in shaping the content of the law, especially constitutional law. Normative theorists resist the positive project, in large part because political influence of this sort is anathema to prevailing conceptions regarding judicial review.7 Throughout history, and particularly in the last century, the dominant strain of thought in the legal academy has insisted upon theories of judicial review that maintain the separation of constitutional law from politics.8 It is difficult to overstate the force of this ideal, which animates some of our most cherished conceptions-such as judicial independence-and gives rise to some of our most enduring puzzles-such as reconciling the role of a constitutional judge with the practice of democracy.9 Constitutional theory is all about cabining law from politics, both to ensure that judges are constrained by law (and thus do not simply vote their own values) and to prevent politics from influencing law.10 Despite signs that the project of positive scholars is finally finding a warmer reception in the legal academy, the integration of constitutional law and politics remains quite tentative.11 To be sure, some early, important work in the application of positive political theory to legal institutions actually had root in the legal academy,12 and there is a growing niche of legal academics producing quite interesting scholarship at the juncture of constitutional law and positive theory.13 Yet much, if not most, normative constitutional theory-and certainly theory about judicial review-still fails to come to grips with the lessons of positive scholarship.14 Old habits die hard. The thesis of this Article is that normative constitutional theory about judicial review will remain impoverished until it fully embraces the positive project. In pursuing the ideal, normative theorists typically sideline the sort of political influences discussed here.15 For example, in writing about what might be normative theory's most famous constitutional judge, Hercules, Ronald Dworkin recognizes the very practical problems the real-world judge faces, such as the need to obtain the agreement of other colleagues on the Supreme Court or to ensure the implementation of judicial decrees by other governmental actors.16 Yet, Dworkin expressly puts these problems to one side so that Hercules will be "free to concentrate on the issues of principle."17 Granting considerations of principle all the due they properly are owed, it nonetheless is the case that many of the institutional constraints Hercules faces are fixed aspects of our constitutional system that Hercules himself has no choice but to heed. …

The Insular Cases and the Emergence of American Empire

Abstract: When the United States took control of Cuba, Puerto Rico, the Philippines, and Guam following the Spanish-American War, it was unclear to what degree these islands were actually part of the U.S. and, in particular, whether the Constitution applied fully, or even in part, to their citizens. By looking closely at what became known as the Insular Cases, Bartholomew Sparrow reveals how America resolved to govern these territories. Sparrow follows the Insular Cases from the controversial Downes v. Bidwell in 1901, which concerned tariffs on oranges shipped to New York from Puerto Rico and which introduced the distinction between incorporated and unincorporated territories, to Balzac v. Puerto Rico in 1922, in which the Court decided that Puerto Ricans, although officially U.S. citizens, could be denied trial by jury because Puerto Rico was "unincorporated." There were 35 Insular Cases in all, cases stretching across two decades, cases in which the Court ruled on matters as diverse as tariffs, double jeopardy, and the very meaning of U.S. citizenship as it applied to the inhabitants of the offshore territories. Providing a new look at the history and politics of U.S. expansion at the turn of the twentieth century, Sparrow's book also examines the effect the Court's decisions had on the creation of an American empire. It highlights crucial features surrounding the cases - the influence of racism on the justices, the need for naval stations to protect new international trade, and dramatic changes in tariff policy. It also tells how the Court sanctioned the emergence of two kinds of American empire: formal territories whose inhabitants could be U.S. citizens but still be denied full political rights, and an informal empire based on trade, cooperative foreign governments, and U.S. military bases rather than on territorial acquisitions. "The Insular Cases and the Emergence of American Empire" reveals how the United States handled its first major episode of globalization and how the Supreme Court, in these cases, crucially redirected the course of American history.

Creeping Monism: The Judicial Trend Toward Interpretive Incorporation of Human Rights Treaties

Abstract: This Article offers a narrow lens analysis of a key debate over the role of foreign authority in U.S. courts: the use of international human rights treaties in interpreting domestic law. Professor Waters argues that recent U.S. Supreme Court decisions (including Roper v. Simmons) should be viewed as part of a transnational trend among common law courts—a trend that she calls creeping monism. Common law judges are increasingly abandoning their traditional dualist orientation to treaties and are beginning to utilize human rights treaties despite the absence of implementing legislation giving domestic legal effect to the treaties. By developing a wide variety of so-called interpretive incorporation techniques, judges are entrenching international treaty obligations into domestic law, thus becoming powerful mediators between the domestic and international legal regimes. The Article traces the growing influence of creeping monism and interpretive incorporation, in an attempt to shift the discourse away from the all-or-nothing debate of recent years to a more nuanced understanding of the complexities involved in incorporating international legal sources into the work of domestic courts. Drawing on a six-year study of judicial treatment of the International Covenant on Civil and Political Rights by the U.S. Supreme Court and four other common law jurisdictions, the Article develops a typology of interpretive incorporation techniques that courts are utilizing. It also provides statistical evidence regarding the use of human rights treaties across jurisdictions. Finally, it maps out a possible normative framework for evaluating courts' use of human rights treaties in interpreting domestic law.

Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of Peremptory Use and the Batson Challenge Procedure

Abstract: The peremptory challenge remained an inviolate jury selection tool in the United States until the Supreme Court's decision in Batson v. Kentucky (1986). Batson's prohibition against race-based peremptories was based on two assumptions: 1) a prospective juror's race can bias jury selection judgments; 2) requiring attorneys to justify suspicious peremptories enables judges to determine whether a challenge is, indeed, race-neutral. The present investigation examines these assumptions through an experimental design using three participant populations: college students, advanced law students, and practicing attorneys. Results demonstrate that race does influence peremptory use, but these judgments are typically justified in race-neutral terms that effectively mask the biasing effects of race. The psychological processes underlying these tendencies are discussed, as are practical implications for the legal system.

U.S. Supreme Court decision making, case salience, and the attitudinal model

Abstract: Does case salience condition the role of ideological preferences in the decisions of U.S. Supreme Court justices? Does the attitudinal model of judicial behavior hold equally true in high salience and low salience cases? In this article, we analyze the role of case salience as a moderating influence on the explanatory capacity of the attitudinal model and test the strength of the model in high salience versus low salience contexts. Using civil rights votes during forty-seven Supreme Court terms, from 1953 through 2000, we find that the attitudinal model is sensitive to case salience and that justices rely significantly more on ideological preferences when deciding high salience cases than low salience ones. Our findings represent an important qualification to the attitudinal model.