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Showing papers on "Supreme court published in 2007"


Journal ArticleDOI
TL;DR: In this paper, a measurement approach that incorporates information that bridges time and institutions in a Bayesian Markov Chain Monte Carlo approach to ideal point measurement is presented, which is useful in a variety of important research projects, including research on statutory interpretation, executive influence on the Supreme Court, and Senate influence on court appointments.
Abstract: Empirically oriented scholars often struggle with how to measure preferences across time and institutional contexts. This article characterizes these difficulties and provides a measurement approach that incorporates information that bridges time and institutions in a Bayesian Markov Chain Monte Carlo approach to ideal point measurement. The resulting preference estimates for presidents, senators, representatives, and Supreme Court justices are comparable across time and institutions. These estimates are useful in a variety of important research projects, including research on statutory interpretation, executive influence on the Supreme Court, and Senate influence on court appointments.

311 citations


Journal ArticleDOI
TL;DR: In this paper, the authors construct a complete network of 26,681 majority opinions written by the U.S. Supreme Court and the cases that cite them from 1791 to 2005.
Abstract: We construct the complete network of 26,681 majority opinions written by the U.S. Supreme Court and the cases that cite them from 1791 to 2005. We describe a method for using the patterns in citations within and across cases to create importance scores that identify the most legally relevant precedents in the network of Supreme Court law at any given point in time. Our measures are superior to existing network-based alternatives and, for example, offer information regarding case importance not evident in simple citation counts. We also demonstrate the validity of our measures by showing that they are strongly correlated with the future citation behavior of state courts, the U.S. Courts of Appeals, and the U.S. Supreme Court. In so doing, we show that network analysis is a viable way of measuring how central a case is to law at the Court and suggest that it can be used to measure other legal concepts.

223 citations


BookDOI
TL;DR: In this paper, the authors discuss the politics of constitutional meaning and the dynamics of constitutional authority in the context of political parties and the role of the judiciary in the political process of opposition.
Abstract: Preface xi Chapter 1: The Politics of Constitutional Meaning 1 Chapter 2: The Construction of Constitutional Regimes 28 Chapter 3: The Reconstruction of Judicial Authority 82 Chapter 4: The Judiciary in the Politics of Opposition 161 Chapter 5: The Growth of Judicial Authority 230 Chapter 6: The Dynamics of Constitutional Authority 285 Index 297

206 citations


Posted Content
TL;DR: It is shown that reversed cases tend to be much more important than other decisions, and the cases that overrule them quickly become and remain even more important as the reversed decisions decline.
Abstract: We construct the complete network of 30,288 majority opinions written by the U.S. Supreme Court and the cases they cite from 1754 to 2002 in the United States Reports. Data from this network demonstrates quantitatively the evolution of the norm of stare decisis in the 19th Century and a significant deviation from this norm by the activist Warren court. We further describe a method for creating authority scores using the network data to identify the most important Court precedents. This method yields rankings that conform closely to evaluations by legal experts, and even predicts which cases they will identify as important in the future. An analysis of these scores over time allows us to test several hypotheses about the rise and fall of precedent. We show that reversed cases tend to be much more important than other decisions, and the cases that overrule them quickly become and remain even more important as the reversed decisions decline. We also show that the Court is careful to ground overruling decisions in past precedent, and the care it exercises is increasing in the importance of the decision that is overruled. Finally, authority scores corroborate qualitative assessments of which issues and cases the Court prioritizes and how these change over time.

199 citations


Journal Article
TL;DR: For instance, this article argued that the U.S. Supreme Court does not exhibit ideological change over the course of their tenures, contrary to the commonly held belief that the Justices themselves do not exhibit ideology change over time.
Abstract: I. INTRODUCTION When the U.S. Supreme Court invalidated the use of military commissions for enemy combatants in Hamdan v. Rumsfeld? the decision fueled more than a national debate over the powers of the President. It also generated commentary about the ideological composition of the Court. Conservatives proclaimed that they were just one Justice, just one vacancy, away from victory in Hamdan2 and a handful of other recent decisions that worked against their interests.3 Liberals worried about it just as much.4 The commentary over Hamdan reflects a widely shared belief among journalists, politicians, scholars, and even judges: alterations in the Court's jurisprudence are unlikely in the absence of membership change. That is because of an underlying belief that the Justices themselves do not exhibit ideological change over the course of their tenures.5 To paraphrase the old proverb: once a conservative, always a conservative. Likewise for liberals.6 Why the assumption of stable preferences is so deeply held is open to speculation. Some analysts suggest it would defy logic to expect mature persons, with years of experience in the legal world, to revisit their jurisprudential views. Would a John G. Roberts Jr.-a Justice who has studied, litigated, or adjudicated court cases for over half his life-alter his ideological preferences? The answer, according to Professor David A. Strauss, is that he would not: As Americans try to figure out what Judge John G. Roberts Jr. will be like as a U.S. Supreme Court [JJustice, one idea seems to [be] that whatever Judge Roberts is now, once he is on the [CJourt he might develop into something different. In particular, the thinking goes, even if he is the intense conservative suggested by his Reagan-era memoranda, he may become more moderate as a [J]ustice. Don't believe it.7 Shoring up intuitions about the implausibility of preference change is empirical support in the form of a William H. Rehnquist on the right and a Thurgood Marshall on the left-Justices who never seemed to veer from their preferred ideological courses. When President Richard Nixon appointed Rehnquist to the Court, virtually all observers of the day deemed the nominee a reliable conservative.8 Likewise, at the time of his appointment, the press declared Justice Marshall a probable addition to the Court's "liberal bloc."9 That these initial ideological labels well characterized the Justices' future behavior only serves to confirm Professor Strauss's claim about the unlikelihood of change. Or so the argument goes. And yet, despite the commonplace nature of the claim, it is not without its share of skeptics. Whether pointing to anecdotes or more systematic evidence, several analysts now contend that ideological drift is not just possible but likely.10 Exhibit A, they say, is Justice Harry A. Blackmun. While the Justice himself maintained that it was the Court, not he, that moved-"I don't believe I'm any more liberal, as such, now than I was before," Justice Blackmun once told a reporter"-many scholars disagree.12 To them, it is hard to believe that the same Justice who dissented from the Court's 1972 decision to strike down existing death penalty statutes13 wrote, in 1994, "[f]rom this day forward, I no longer shall tinker with the machinery of death."14 But is Justice Blackmun the rule or the rare exception? Do most Justices remain committed to a particular doctrinal course throughout their careers, as Strauss and others contend, or do the skeptics have the better case? After reviewing the relevant commentary in Part II, we deploy state-of-theart methods to address these questions. The results, as it turns out, could not be clearer: contrary to the received wisdom, virtually every Justice serving since the 1930s has moved to the left or right or, in some cases, has switched directions several times. Finding that ideological drift is pervasive, in Part IV we develop the implications of our results for two moments in the Justices' career cycle: the events surrounding their appointments to the Court and the doctrine they develop once confirmed. …

145 citations



Journal ArticleDOI
01 Jun 2007-Antipode
TL;DR: In this paper, the authors examine the cases as privatizations, but also as relational moments in the commodification of nature, and examine the ways in which judges and interested activists deliberate over the economic, legal, ecological, ethical, and even metaphysical arguments and representations required to uphold discrete genes, processes, and whole organisms as inventions.
Abstract: In 2002 the Canadian Supreme Court ruled to deny Harvard College a whole organism patent over the oncomouse. In 2004, the same court ruled that Canadian farmer Percy Schmeiser had violated Monsanto patents covering GM canola. Both decisions rejected whole organism patents, running counter to US precedents. Yet both, nevertheless, consolidate private claims to life as patentable inventions, and critics claim, with some support from Justices in the Schmeiser case, that patents over genes amount to de facto patents over whole organisms. In this paper I argue these cases are broadly consistent with the notion of accumulation by dispossession as a means to expand the scale and scope of capital accumulation via so-called ‘extra-economic’ means. As such, I examine the cases as privatizations, but also as relational moments in the commodification of nature. However, in hoping to unpack and fill out this notion of the extra-economic, as well as to critically examine the necessarily incomplete character of commodification as a tendency, I look to the ways in which judges and interested activists deliberate over the economic, legal, ecological, ethical, and even metaphysical arguments and representations required to uphold discrete genes, processes, and whole organisms as inventions.

143 citations


Journal ArticleDOI
TL;DR: The authors found that Court support among the American people has not declined, nor is it connected to partisan and ideological identifications Instead, support is embedded within a larger set of relatively stable democratic values, and it does not seem to be caught up in the divisiveness that characterizes so much of American politics.
Abstract: Conventional political science wisdom holds that contemporary American politics is characterized by deep and profound partisan and ideological divisions Unanswered is the question of whether those divisions have spilled over into threats to the legitimacy of American political institutions, such as the US Supreme Court Since the Court is often intimately involved in making policy in many issue areas that divide Americans—including the contested 2000 presidential election—it is reasonable to hypothesize that loyalty toward the institution depends on policy and/or ideological agreement and partisanship Using data stretching from 1987 through 2005, the analysis reveals that Court support among the American people has not declined, nor is it connected to partisan and ideological identifications Instead, support is embedded within a larger set of relatively stable democratic values Institutional legitimacy may not be obdurate, but it does not seem to be caught up in the divisiveness that characterizes so much of American politics—at least not at present

125 citations


Journal ArticleDOI
TL;DR: For example, this article found that Democratic appointees are far more likely to vote to invalidate, as arbitrary, conservative agency decisions than liberal agency decisions, and that Republican appointees were far less likely to validate, as arbitrarily, liberal, conservative, agency decisions.
Abstract: The Administrative Procedure Act instructs federal courts to invalidate agency decisions that are "arbitrary" or "capricious." In its 1983 decision in the State Farm case, the Supreme Court firmly endorsed the idea that arbitrariness review requires courts to take a "hard look" at agency decisions. The hard look doctrine has been defended as a second-best substitute for insistence on the original constitutional safeguards; close judicial scrutiny is said to discipline agency decisions and to constrain the illegitimate exercise of discretion. In the last two decades, however, hard look review has been challenged on the plausible but admittedly speculative ground that judges' policy preferences affect judicial decisions about whether agency decisions are "arbitrary." This study, based on an extensive data set, finds that the speculation is correct. Democratic appointees are far more likely to vote to invalidate, as arbitrary, conservative agency decisions than liberal agency decisions. Republican appointees are far more likely to invalidate, as arbitrary, liberal agency decisions than conservative agency decisions. Significant panel effects are also observed. Democratic appointees show especially liberal voting patterns on all-Democratic panels; Republican appointees show especially conservative voting patterns on all-Republican panels. Our central findings do not show that judicial votes are dominated by political considerations, but they do raise grave doubts about the claim that hard look review is operating as a neutral safeguard against the errors and biases of federal agencies. Because judicial policy commitments are playing a large role, there is a strong argument for reducing the role of those commitments, and perhaps for softening hard look review.

123 citations


Journal ArticleDOI
TL;DR: While the Supreme Court in Bandemer v. Davis found partisan gerrymandering to be justiciable, no challenged redistricting plan in the subsequent 20 years has been held unconstitutional on partisan beliefs as mentioned in this paper.
Abstract: While the Supreme Court in Bandemer v. Davis found partisan gerrymandering to be justiciable, no challenged redistricting plan in the subsequent 20 years has been held unconstitutional on partisan ...

117 citations


Posted Content
TL;DR: In this paper, the authors investigate whether campaign contributions, attack ads, and policy pronouncements by candidates for judicial office compromise the legitimacy of elected state courts and conclude that these factors do not lead to a diminution of legitimacy.
Abstract: Institutional legitimacy is perhaps the most important political capital courts possess. Many believe, however, that the legitimacy of elected state courts is being threatened by the rise of politicized judicial election campaigns and the breakdown of judicial impartiality. Three features of such campaigns, the argument goes, are dangerous to the perceived impartiality of courts: campaign contributions, attack ads, and policy pronouncements by candidates for judicial office. By means of an experimental vignette embedded in a representative survey, I investigate whether these factors in fact compromise the legitimacy of courts. The survey data indicate that campaign contributions and attack ads do indeed lead to a diminution of legitimacy, in courts just as in legislatures. However, policy pronouncements, even those promising to make decisions in certain ways, have no impact whatsoever on the legitimacy of courts and judges. These results are strongly reinforced by the experiment's ability to compare the effects of these campaign factors across institutions (a state Supreme Court and a state legislature). Thus, this analysis demonstrates that legitimacy is not obdurate and that campaign activity can indeed deplete the reservoir of goodwill courts typically enjoy, even if the culprit is not the free-speech rights the U.S. Supreme Court announced in 2002.

Journal ArticleDOI
TL;DR: The third stage of the proportionality analysis provides an opportunity to assess whether the benefits which accrue from the limitation are proportional to its deleterious effects as measured by the values underlying the Charter.
Abstract: one. The Constitutional Court does not recognize a hierarchy among the various fundamental rights. The balance, therefore, must be concrete or, in the Canadian terminology, contextual. One question is how deeply the right is infringed. Another question is how serious the danger for the good protected by the law is, and how likely it is that the danger will materialize. Furthermore, the degree to which the impugned law will protect the good against the danger must be measured against the degree of intrusion. Yet this concept is by no means alien to the Canadian Court. Already in Oakes, Chief Justice Dickson admitted that a full protection of fundamental rights is impossible without the third step. ‘Even if an objective is of sufficient importance, and the first two elements of the proportionality test are satisfied, it is still possible that, because of the severity of the deleterious effects of a measure on individuals or groups, the measure will not be justified by the purposes it is intended to serve.’ The similarity to the German approach becomes even clearer in Thomson Newspapers v. Canada (A.G.), where the Court states that the third step of the proportionality test performs a role fundamentally distinct from the previous steps: The focus of the first and second steps of the proportionality analysis is not the relationship between the measures and the Charter right in question, but rather the relationship between the ends of the legislation and the means employed. . . . The third stage of the proportionality analysis provides an opportunity to assess . . . whether the benefits which accrue from the limitation are proportional to its deleterious effects as measured by the values underlying the Charter. The explanation for this gap between the Court’s reasoning and its practice must be sought in the fact that the elements relevant to the third step have already been dealt with in previous stages. The importance of the objective has generally been determined in the preliminary step, where the Court not only ascertains the purpose of the law but asks, in addition, whether it is sufficiently ‘pressing and substantial’ to justify a limitation of Charter rights. The effects of the infringement on the beneficiaries of the protection are considered in connection with the existence of an infringement in the two prior steps of the test, so that not much remains to be said when the Court reaches the third step. Consequently, the source of unconstitutional limitations always has been found in earlier stages. The outside observer gets the impression that the Canadian Supreme Court avoids the third step out of fear that a court might make policy decisions at this stage rather than legal decisions. Constitutional scholars 40 Oakes, supra note 2 at para.71. 41 [1998] 1 S.C.R. 877 [Thomson]. 42 Ibid. at para. 125. 394 UNIVERSITY OF TORONTO LAW JOURNAL

01 Jan 2007
TL;DR: The Prejudice and Pride: The Brown Decision After 25 Years, presented by the National Academy of Education (NAEd) as discussed by the authors, was an early report produced by the Academy in 1979 at the request of the Assistant Secretary of Education.
Abstract: T he National Academy of Education (NAEd) advances the highest quality education research and its use in policy formulation and practice. Founded in 1965, the Academy is composed of up to 200 U.S. members and up to 25 foreign associates all of whom are elected on the basis of outstanding scholarship or contributions to education. The Academy has a long-standing commitment to foster public understanding of education and education research and to provide analysis of education issues for the government. Since its founding, the National Academy of Education has undertaken work through numerous commissions and study panels, which typically include both NAEd members and other scholars with expertise in the particular area of inquiry. For example, in the 1990s, at the behest of Congress, the Academy undertook a series of studies on the validity of " state NAEP, " an extension of the National Assessment of Educational Progress to the 50 states. Similarly in the early 2000s, with great public concern focused on the adequacy of teacher preparation, the Academy created a Committee on Teacher Education, which has since published three volumes synthesizing the professional knowledge base about how people learn and how to teach effectively. Significantly for the present topic, Prejudice and Pride: The Brown Decision After 25 Years, was an early report produced by the Academy in 1979 at the request of the Assistant Secretary of Education. It analyzed the Brown decision, the extent of its implementation, harmful effects as well as benefits, and policy options under which its spirit might flourish. In addition to serving on study panels that address pressing issues in education, Academy members are also deeply engaged in NAEd' s professional development programs focused on rigorous preparation of the next generation of scholars. The NAEd/Spencer Postdoctoral Fellowship Program supports early scholars working in critical areas of education research across the disciplines. Most recently, the NAEd/Carnegie Adolescent Literacy Predoctoral Fellowship Program has been established to engage Ph.D. candidates in a critical area that has received too little attention from researchers—literacy outcomes for middle-and high-school students. In the fall of 2006, the education community' s attention was drawn to the Louisville, Kentucky, and Seattle, Washington, cases being argued before the Supreme Court. The cases questioned whether school districts could use race as a factor in school assignment policies for the purpose of mitigating racial segregation. Altogether, 64 amicus briefs were filed in the two cases; almost …

Journal ArticleDOI
TL;DR: In the context of judicial review of the constititutionality of federal legislation, tensions between the two branches are arguably at their peak as discussed by the authors, and two tracks to Congressional inference are tested: rational anticipation of the separation of powers model and a more boundedly rational institutional maintenance model.
Abstract: Scholars dispute whether the Supreme Court is constrained by the threat of Congressional override of its decisions. In the context of judicial review of the constititutionality of federal legislation, tensions between the two branches are arguably at their peak. In this paper, therefore, we test two tracks to Congressional inference: the rational anticipation of the separation of powers model and a more boundedly rational institutional maintenance model. We do this by estimating the preferences of the current Court's and the current Congress over the challenged legislation to determine whether the Court rationally anticipates being overturned in the instant case and proactively capitulates. We test the institutional maintenance model by examining factors that do not require the Court to know whether any particular case will be overturned, but nevertheless might cue the Court that it is acting in a hostile environment, and thus should be wary. In this initial analysis of our data, we find that the Court does not appear to be constrained by expectations of Congressional override. On the other hand, the Court is substantially less likely to strike legislation when it is ideologically distant from the House and Senate, as Congress could then act institutionally against the judiciary.

Journal ArticleDOI
TL;DR: The U.S. Supreme Court in 2001 found that the Migratory Bird Rule exceeded the Corps' authority under Section 404 of the Clean Water Act (CWA) as mentioned in this paper.
Abstract: In January 2001, the U.S. Supreme Court issued a ruling in the case of Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC). The SWANCC case presented the Court with two issues: (1) whether an isolated water could be considered part of the ‘‘waters of the United States,’’ protected under the Clean Water Act (CWA) – and thus subject to the U.S. Army Corps of Engineers’ (Corps) regulatory authority under Section 404 of the CWA – solely based on its use by migratory birds; and, if so, (2) whether Congress had the constitutional authority under the Commerce Clause to include these as waters of the United States. In particular, the Court considered the Corps’ Migratory Bird Rule – which deemed waters of the United States to include isolated intrastate waters that provide habitat for migratory birds. In a 5-4 decision, the Court found that the Migratory Bird Rule exceeded the Corps’ authority under the CWA [531 U.S., 159 (2001)], and held that the CWA is not intended to protect isolated, intrastate, non-navigable waters based solely on their use by migratory birds. While the Court’s decision did not create a bright line test for what Congress intended to regulate under the CWA, the Court’s reasoning implies that the CWA intended some ‘‘connection’’ to navigability, and that isolated waters need a ‘‘significant nexus’’ to navigable waters to be jurisdictional. The SWANCC decision has had profound implications on the legal status of so-called isolated waters – those lacking a surface water connection to other bodies of water. Furthermore, that decision affects all CWA programs – including Section 303 water quality standards, Section 311 oil spill prevention and cleanup, Section 401 water quality certification, and Section 402 pollution discharge permits – not just Section 404, which regulates the discharge of dredged or fill material into waters of the U.S, including wetlands. Initially following the SWANCC decision, much of the regulatory debate was focused on so-called isolated wetlands, while the debate in the courts focused on the jurisdictional status of tributaries, including headwater, intermittent and ephemeral streams. These case law and regulatory debates made apparent that the emerging issue is ‘‘what is the extent of the tributary system,’’ with a focus on headwater, intermittent and ephemeral streams and the connectivity, or ‘‘significant nexus,’’ of these waters to navigable waters. The Corps and the U.S. Environmental Protection Agency issued guidance in January 2003 indicating that field staff were to continue to assert jurisdiction over tributaries and their adjacent wetlands, and that formal headquarters approval should be obtained prior to asserting jurisdiction over isolated waters based solely on links to interstate commerce [68 Fed. Reg. 1995, 1998 (January 15, 2003)]. During that same time period, a significant majority of courts, including 17 appellate court decisions, concluded that SWANCC was narrowly focused

Journal ArticleDOI
TL;DR: In this article, the authors investigate the influence of amicus briefs on the ideological direction of the U.S. Supreme Court's decisions, with particular attention given to theoretical and methodological issues.
Abstract: Despite the fact that amicus curiae participation is the most common method of interest group activity in the judicial arena, there is little consensus as to whether this means of participation influences the decision making of the U.S. Supreme Court. To redress this state of affairs, this research investigates the affect of amicus briefs on the ideological direction of the Court's decisions, with particular attention given to theoretical and methodological issues that have gone unexplored in previous studies. Analyzing group influence during the 1946 to 1995 terms, the results provide particularly robust evidence that pressure groups are effective in shaping the Court's policy outputs. These findings therefore indicate that elite decision makers can be influenced by persuasive argumentation presented by organized interests.

Posted Content
TL;DR: This article 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.
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.

Journal ArticleDOI
TL;DR: In this paper, the authors studied the judicialization of politics in Brazil, based on an analysis of a database containing 3.648 ADINs filed between 1988 and 2005, and found that the ADIN are now a normal part of the everyday running of modern Brazilian democracy, their institutional presence consolidated over almost two decades through successive and different governments.
Abstract: This article studies the judicialization of politics in Brazil, based on an analysis of a database containing 3.648 ADINs filed between 1988 and 2005. Examining this data, the overall impression gained is that ADINs are now a normal part of the everyday running of the modern Brazilian democracy, their institutional presence consolidated over almost two decades through successive and different governments - and even more firmly in the current Lula government. Over this time, they have functioned as a channel for the conflicts between society and the State, as well as conflicts within the Public Administration and the Federation. Hence, as well as being an instrument for the defence of minorities, their original constitutional function, the research shows that the ADINs are also a strategic institutional resource for government, turning the Federal Supreme Court in practice into a kind of Council of State prevalent in countries with unitary governments.

Journal ArticleDOI
TL;DR: In this paper, the authors reflect on the importance of this decision and discuss how changes in IDEA in the 1997 and 2004 reauthorizations have changed the definition of a FAPE. And they discuss principles that school districts should follow when developing individualized education programs (IEPs) that provide a free appropriate public education to students with disabilities.
Abstract: June 22, 2007, was the 25th anniversary of the U.S. Supreme Court’s decision in Board of Education of the Hendrick Hudson Central School District v. Rowley1 (hereafter Rowley; 1982). In Rowley, the Supreme Court interpreted Congressional intent in requiring that public schools provide a free appropriate public education (FAPE) to students with disabilities under the Individuals with Disabilities Education Act (IDEA). This ruling— which is arguably the most important special education decision by the high court—has had a profound effect on the education of students with disabilities. In this article we reflect on the importance of this decision and discuss how changes in IDEA in the 1997 and 2004 reauthorizations have changed the definition of a FAPE. First, we briefly review passage of the Education of All Handicapped Children Act2 (EAHCA) in 1975. Second, we examine the facts of the Rowley case and the Supreme Court’s ruling. Third, we look at some court cases following Rowley, which interpreted the meaning of the Supreme Court’s ruling. Fourth, we consider the effects of IDEA 1997 and 2004 on the meaning of FAPE. Finally, we discuss principles that school districts should follow when developing individualized education programs (IEPs) that provide a FAPE for students with disabilities.


Journal ArticleDOI
TL;DR: In this paper, the authors formulate a game-theoretic model of bargaining on the US Supreme Court, where a degree of monopoly power over policy endogenously accrues to the assigned writer despite an open rule permitting other justices to make counteroffers.
Abstract: We formulate a new game-theoretic model of bargaining on the US Supreme Court. In the model, a degree of monopoly power over policy endogenously accrues to the assigned writer despite an “open rule” permitting other justices to make counteroffers. 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 counteroffer. 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 to generate new propositions, all within a unified and internally consistent framework.

Posted Content
TL;DR: In this article, the authors review various academic critiques of their "dialogue" theory and conclude that the dialogue phenomenon is alive and well and that the critique of the original article is "much adopt about metaphors."
Abstract: This article is a sequel to the 1997 article "The Charter Dialogue Between Courts and Legislatures (Or Perhaps the Charter of Rights Isn't Much a Bad Thing After All)." In the present article, the authors review various academic critiques of their "dialogue" theory, which postulates that Charter decisions striking down laws are not the law word, but rather the beginning of a "dialogue", because legislative bodies are generally able to (and generally do) enact sequel legislation that accomplishes the main objective of the unconstitutional law. The authors also examine the Supreme Court of Canada's dicta on the "dialogue" phenomenon, and update the data on which their 1997 article was based. They conclude that the dialogue phenomenon is alive and well and that the critique of the original article is "much adopt about metaphors."

Journal ArticleDOI
TL;DR: In this article, a game-theoretic model of circuit court-Supreme Court interaction is presented to demonstrate how panel composition might affect the likelihood of lower court compliance to Supreme Court doctrine.
Abstract: This article integrates the literatures on judicial compliance, panel decision making, and case selection in the federal judiciary hierarchy. Many studies have speculated that ‘‘panel effects’’—the phenomena under which an individual judge’s vote may depend on her colleagues on a three-judge panel—can be tied to a ‘‘whistleblower effect,’’ through which a lower court judge can constrain a panel majority from disobeying with Supreme Court precedent by threatening to dissent. However, no study has systematically found such a relationship. I present a game-theoretic model of circuit court-Supreme Court interaction that demonstrates how panel composition might affect the likelihood of lower court compliance to Supreme Court doctrine. The model illustrates how three-judge panels, while not inducing perfect doctrinal control of lower courts by the Supreme Court, significantly increases the latter’s ability to see its preferred doctrine carried out by its subordinates in the judicial hierarchy.

Posted Content
TL;DR: In this article, a new account of the relationship between adjudication and popular constitutionalism is presented, which is called democratic constitutionalism, which emphasizes the interdependence of judicial and popular enforcement of constitutional rights, despite perpetual friction between them.
Abstract: After decades of assault on the jurisprudence of the Warren Court, many progressive legal scholars have lost faith in judicial enforcement of constitutional rights. Some have responded by embracing popular constitutionalism and advocating mobilization against the Rehnquist and Roberts Courts; others, chastened, urge a minimalist jurisprudence that will avoid giving any group offense. There is fear of provoking the kind of backlash that many associate with Roe, which is often regarded as having caused the rise of the New Right. In this article, we offer a new account of the relationship between adjudication and popular constitutionalism, which we call democratic constitutionalism. Democratic constitutionalism affirms both the need for judicially enforced rights and the fundamental significance of popular constitutional engagement. We begin from the understanding that, in the American tradition, constitutional politics and constitutional law depend on one another, however insistently they assert their autonomy. This article offers an account of democratic constitutionalism which emphasizes the interdependence of judicial and popular enforcement of constitutional rights, despite perpetual friction between them. Judicially enforceable rights give concrete and institutional form to constitutional values; ongoing popular constitutional engagement ensures that these values retain democratic legitimacy. Interpretive disagreement is a normal condition for the development of constitutional law. We identify understandings and practices that enable citizens to make claims on the Constitution and government officials to resist and respond to their claims; these interactions shape the Constitution's meaning over time in ways that sustain citizen engagement in our constitutional order and reconcile Americans' competing commitments to the rule of law and to self-governance. We draw on these understandings to question leading accounts of backlash featured in the work of Michael Klarman, William Eskridge, and Cass Sunstein. Each of these theorists tends in his own way to overestimate the costs of backlash and to underestimate its benefits. They are each attuned to the harms that attend constitutional conflict, but they do not sufficiently consider how citizen engagement in constitutional contestation can contribute to social cohesion in a normatively heterogeneous polity. Roe symbolizes the fears of those who counsel courts to avoid controversy. Legal scholars and political commentators commonly assert that judicial overreaching produced Roe rage, arguing that legislatures might have liberalized access to abortion if only the Court had stayed its hand. We examine scholarship on Roe's reception, as well as primary sources of the era, which together undermine this conventional account. Backlash to Roe was not just about judicial overreaching. Political mobilization against the decision expressed opposition to abortion's liberalization that began in state legislatures years before Roe was decided. As importantly, backlash to Roe was not just about abortion. During the 1970s, opponents of the Equal Rights Amendment and the school prayer decisions condemned the abortion right as an expression of "secular humanism," giving birth to the coalition politics we now associate with Roe rage - a broad-based social movement hostile to legal efforts to secure the equality of women and the separation of church and state. Roe rage opposes ideals of individualism and secularism that lie at the foundation of our modern constitutional order. Accommodating resistance to Roe thus presents normative questions analogous to those posed by accommodating resistance to Brown. The article concludes by illustrating how the themes of Roe rage have recently found expression in the Supreme Court's opinion in Carhart.

Journal ArticleDOI
TL;DR: In this article, the saliency of the issue before the U.S. Supreme Court has been found to be a predictor of the willingness of the justices to be influenced by legal arguments.
Abstract: A good deal of scholarly evidence suggests that the decisionmaking of the U.S. Supreme Court is affected by legal argument. At the same time, it seems clear that in a great many cases the justices have enduring, strongly held views. In such cases, they should be impervious to the effects of advocacy. When are the justices apt to be influenced by the Court's legal community, and when will lawyers be less relevant? The answer, we think, has to do with the salience of the issue before the Court. We suspect that in nonsalient cases the justices have less-intense preferences and therefore are open to the persuasion of lawyers. In salient cases, by contrast, the content of legal policy matters much more to the justices. As a result, they are less amenable to legal argument and adhere more strictly to their personal policy preferences. Our empirical tests support this orientation.

Journal Article
TL;DR: The Seventh Circuit's en-banc decision in United States v Hollingsworth as mentioned in this paper was the seminal case for entrapment defense, and it was interpreted by Chief Judge Richard A. Posner as making an unannounced but fundamental change in en trapment law that benefited the defendants.
Abstract: Whenever I teach the entrapment defense, I pair the last Su preme Court case on the topic?Jacobson v United States1?with the Seventh Circuit's en banc decision in United States v Hollingsworth! Chief Judge Richard A. Posner wrote the panel opinion for the 2-1 majority in Hollingsworth3 and the en banc opinion for the 6-5 major ity, in each case holding that the two defendants were entrapped as a matter of law. Chief Judge Posner interpreted Jacobson?itself a 5-4 decision?as making an unannounced but fundamental change in en trapment law that benefited the Hollingsworth defendants. Under his view, the Supreme Court redefined "predisposition" to include not only the mental element of willingness to commit an offense, but also a positional element of being functionally able to do so.4 Posner's opinions display his characteristic skill in interpretation, creatively finding space for the doctrinal change and using that space to bring, to my mind, greater rationality to entrapment doctrine. There are lively dissents written by Judges Coffey, Easterbrook, and Ripple.5 Since the Seventh Circuit's en banc decision, other circuits have strug gled with the issue but rarely resolved it;6 one imagines that the Su

Journal ArticleDOI
TL;DR: In this paper, the authors consider the problem of aggregating judicial preferences over rules in a meaningful way and show that even mildly complex preferences often cannot be combined to form a rational group preference, such that there is no policy that can be said to represent the majority.
Abstract: Ultimate power over legal policy in the United States lies mainly in appellate courts, particularly the Supreme Court. These courts do not and could not hear all cases themselves. Rather, appellate courts make policy by laying down rules for disposing of cases, rules that the lower court judges who hear the vast majority of cases are to apply in their decisions. The problem is that, in the United States and many other countries, appellate courts are multimember, or collegial. The individual judges that compose such courts often differ in their policy goals, which is to say that they might prefer different case outcomes and different rules for disposing of cases. This raises the problem of whether judicial preferences over rules can be aggregated in a meaningful way. A lone judge could issue a rule to tell lower courts how to decide cases her way, but can a collegial court do the same? Can a collegial court operating under majority rule construct a coherent legal doctrine? The answer is far from obvious— –social choice theory shows that even mildly complex preferences often cannot be combined to form a rational group preference, such that there is no policy that can be said to represent “the” majority. In short, we lack a theory as to how preferences that take the form of legal rules can be aggregated, even though this is a foundational issue for the study of judicial policy making. In this paper, I ask whether and how judges on a collegial court can aggregate their preferred rules. I contend that there is a meaningful way to construct a collegial rule, one that reflects differences among individual judges, but still captures their preferences in a majoritarian fashion. I also consider the implications of collegiality and how it affects the structure and content of legal rules. That is, can collegial rules fulfill the same

Journal ArticleDOI
TL;DR: The authors provides an updated analysis of the institutional and organizational landscape surrounding the advocacy of and opposition to vouchers and other forms of school choice over the past decade at federal/national, state, and local levels.
Abstract: This article provides an updated analysis of the institutional and organizational landscape surrounding the advocacy of and opposition to vouchers and other forms of school choice over the past decade at federal/national, state, and local levels. The politics of choice grew far more complex during the 1990s, with Republican control of Congress and the White House, the growth of the national charter school movement, congressional passage of pilot voucher programs, and the Supreme Court's 2002 Zelman v. Simmons-Harris ruling. Utilizing an Advocacy Coalition Framework, questions about the ideological motivations behind different forms of school choice, the particular programs that certain groups are likely to support or oppose, and the strategies—including the potential alliances and coalitions—that are increasingly employed around school choice policy are explored. A framework for understanding and analyzing policymaking in this area is offered, extending existing thinking on both school choice issues and e...

Posted Content
TL;DR: The authors show that the author of the majority opinion exercises the most influence over the Court's opinion-writing process, and so can determine what becomes Court policy, at least within the limits of what some Court majority finds acceptable.
Abstract: Some scholars argue that the author of the majority opinion exercises the most influence over the Court's opinion-writing process, and so can determine what becomes Court policy, at least within the limits of what some Court majority finds acceptable. Other students of the Court have suggested that the Court's median justice effectively dictates the content of the majority opinion: whatever policy the median justice most wants, she can get. We test these competing models with data on Supreme Court decision-making during the Burger Court (1969-1986). While we find substantial evidence for both models, the agenda control model gains greater support. This suggests that opinions on the Court on each case are driven, in general, by the interaction of three key variables: the policy preferences of the majority opinion author, the policy preferences of the median justice, and the location of the legal status quo.

Journal ArticleDOI
TL;DR: Meyer and Boutcher as discussed by the authors argue that the Court decision signaled judicial openness to stand up for minority points of view on questions of fundamental rights, and that the civil rights movement spilled over to affect other movements.
Abstract: The watershed Supreme Court decision in Brown v. Board of Education affected activist politics on issues that extend well beyond African-American civil rights or education. The apparent success of the Court decision in spurring social change encouraged activists in other social movements to emulate the NAACP Legal Defense Fund's litigation strategy, and to adapt organizational structures, political strategies, and rhetoric borrowed from the civil rights movement. We examine how a Supreme Court decision and its subsequent interpretation influenced the development of other social movements. Borrowing from work on social movements, we contend that the Court decision signaled judicial openness to stand up for minority points of view on questions of fundamental rights, and that the civil rights movement spilled over to affect other movements. Activists continued to respond to that signal decades after Brown, even when that signal of judicial responsiveness and openness did not reflect the real prospects for achieving influence through a litigation-based strategy.David S. Meyer is Professor of Sociology and Political Science (dmeyer@uci.edu) and Steven A. Boutcher is Doctoral Candidate (sboutche@uci.edu) in Sociology, University of California, Irvine. We are grateful for helpful comments on an earlier draft of this paper from Lisa Garcia Bedolla, Catherine Corrigall-Brown, Stephanie DiAlto, Sharon Lean, Sharon Oselin, and Su Yang.