Showing papers on "Supreme court published in 2010"

Peculiar Institution: America's Death Penalty in an Age of Abolition

Abstract: The U.S. death penalty is a "Peculiar Institution", and a uniquely American one. Despite its comprehensive abolition elsewhere in the Western world, capital punishment continues in dozens of American states - a fact that is frequently discussed but rarely understood. The same puzzlement surrounds the peculiar form that American capital punishment now takes, with its uneven application, its seemingly endless delays, and the uncertainty of its ever being carried out in individual cases, none of which seem conducive to effective crime control or criminal justice. In a brilliantly provocative study, David Garland explains this tenacity and shows how death penalty practice has come to bear the distinctive hallmarks of America's political institutions and cultural conflicts. America's radical federalism and local democracy, as well as its legacy of violence and racism, account for our divergence from the rest of the West. Whereas the elites of other nations were able to impose nationwide abolition from above despite public objections, American elites are unable - and unwilling - to end a punishment that has the support of local majorities and a storied place in popular culture. In the course of hundreds of decisions, federal courts sought to rationalize and civilize an institution that too often resembled a lynching, producing layers of legal process but also delays and reversals. Yet the Supreme Court insists that the issue is to be decided by local political actors and public opinion. So the death penalty continues to respond to popular will, enhancing the power of criminal justice professionals, providing drama for the media, and bringing pleasure to a public audience who consumes its chilling tales. Garland brings a new clarity to our understanding of this peculiar institution - and a new challenge to supporters and opponents alike.

Judicial Power and Strategic Communication in Mexico

Abstract: Part I. Judicial Communication and Judicial Power: 1. Introduction 2. A model of constitutional review and case promotion Appendix 2 Part II. The Politics of Constitutional Review in Mexico: 3. Public relations on the Mexican Supreme Court 4. Decisions, case promotion, and compliance in Mexico Appendix 4A Appendix 4B Part III. Relationships between Transparency and Legitimacy: 5. Constitutional review and the development of judicial legitimacy Appendix 5 6. A cross-national analysis of judicial legitimacy 7. Democracy and the development of judicial power.

Why (and When) Judges Dissent: A Theoretical and Empirical Analysis

Abstract: This paper develops and tests a model of self-interested judicial behavior to explore the phenomenon of judicial dissents, and in particular what we call “dissent aversion,” which sometimes causes a judge not to dissent even when he disagrees with the majority opinion. We examine dissent aversion using data from both the federal courts of appeals and the U.S. Supreme Court. Our empirical findings are consistent with the predictions of the model. In the court of appeals, the frequency of dissents is negatively related to the caseload and positively related to ideological diversity among judges in the circuit and circuit size (i.e., the fewer the judges, the greater the collegiality costs of dissenting and therefore, other things being equal, the fewer dissents). We also find that dissents increase the length of majority opinions (imposing collegiality costs by making the majority work harder) and are rarely cited either inside or outside the circuit (reducing the value of dissenting to dissenters). In the Supreme Court, we find that the dissent rate is negatively related to the caseload and positively related to ideological differences, that majority opinions are longer when there is a dissent and that dissents are rarely cited in either the courts of appeals or the Supreme Court.

The Vulnerable Subject and the Responsive State

Abstract: Since there is also no U.S. constitutional guarantee to basic social goods, such as housing, education, or health care, the anti-discrimination, sameness-of-treatment approach to equality prevalent in the United States is particularly problematic. The discourse of human rights that supports claims to such goods in European and other countries does not exist in America. We have not ratified many of the international agreements, including those associated with economic rights, as well as CEDAW and CRC. The courts are little help. In fact, attempts to apply human rights ideals internally - to American practices and laws - have been met with resistance, if not outright rejection. Several Justices of the Supreme Court decried references to human rights principles used to bolster arguments about constitutionality under American precedent to be the application of "foreign fads" when (superior) American constitutional provisions should prevail.My development of the concept of vulnerability and the idea of a vulnerable subject began as a stealthily disguised human rights discourse, fashioned for an American audience. The concept has evolved from those early articulations, and I now think it has some significant differences as an approach, particularly in that a focus on vulnerability is decidedly focused on exploring the nature of the human part, rather than the rights part, of the human rights trope. Importantly, consideration of vulnerability brings societal institutions, in addition to the state and individual, into the discussion and under scrutiny. Vulnerability is posited as the characteristic that positions us in relation to each other as human beings and also suggests a relationship of responsibility between state and individual. The nature of human vulnerability forms the basis for a claim that the state must be more responsive to that vulnerability and do better at ensuring the "All-American" promise of equality of opportunity.

Cultures of legality : judicialization and political activism in Latin America

Abstract: Part I. Introduction: 1. Cultures of legality: judicialization and political activism in contemporary Latin America Alexandra Huneeus, Javier Couso and Rachel Sieder Part II. Courts and Judicialization through a Cultural Lens: 2. Legal language and social change during Colombia's economic crisis Pablo Rueda 3. How courts work: culture, institutions, and the Brazilian supreme tribunal federal Diana Kapiszewski 4. More power, more rights? The Supreme Court and society in Mexico Karina Ansolabehere 5. High courts and the inter-American court: judicialization, human rights and a tenuous relationship Alexandra Huneeus Part III. Judicialization beyond the Courts: 6. The transformation of constitutional discourse and the judicialization of politics in Latin America Javier Couso 7. Legal cultures in the (un)rule of law: indigenous rights and juridification in post-conflict Guatemala Rachel Sieder 8. Political activism and the practice of law in Venezuela Manuel A. Gomez 9. The Mapuche people's battle for land: litigation as a strategy to defend indigenous land rights Anne Skj'vestad 10. Judicialization in Argentina: legal culture, or opportunities and support structures? Catalina Smulovitz 11. Novel appropriations of the law in the pursuit of political and social change in Latin America Pilar Domingo.

The Limits of Judicial Independence

Abstract: This book investigates the causes and consequences of congressional attacks on the US Supreme Court, arguing that the extent of public support for judicial independence constitutes the practical limit of judicial independence. First, the book presents a historical overview of Court-curbing proposals in Congress. Then, building on interviews with Supreme Court justices, members of Congress, and judicial and legislative staffers, the book theorizes that congressional attacks are driven by public discontent with the Court. From this theoretical model, predictions are derived about the decision to engage in Court-curbing and judicial responsiveness to Court-curbing activity in Congress. The Limits of Judicial Independence draws on illustrative archival evidence, systematic analysis of an original dataset of Court-curbing proposals introduced in Congress from 1877 onward and judicial decisions.

The Living Constitution

Abstract: Supreme Court Justice Antonin Scalia once remarked that the theory of an evolving, "living" Constitution effectively "rendered the Constitution useless." He wanted a "dead Constitution," he joked, arguing it must be interpreted as the framers originally understood it. In The Living Constitution, leading constitutional scholar David Strauss forcefully argues against the claims of Scalia, Clarence Thomas, Robert Bork, and other "originalists," explaining in clear, jargon-free English how the Constitution can sensibly evolve, without falling into the anything-goes flexibility caricatured by opponents. The living Constitution is not an out-of-touch liberal theory, Strauss further shows, but a mainstream tradition of American jurisprudence-a common-law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders. Strauss explores how judicial decisions adapted the Constitution's text (and contradicted original intent) to produce some of our most profound accomplishments: the end of racial segregation, the expansion of women's rights, and the freedom of speech. By contrast, originalism suffers from fatal flaws: the impossibility of truly divining original intent, the difficulty of adapting eighteenth-century understandings to the modern world, and the pointlessness of chaining ourselves to decisions made centuries ago. David Strauss is one of our leading authorities on Constitutional law-one with practical knowledge as well, having served as Assistant Solicitor General of the United States and argued eighteen cases before the United States Supreme Court. Now he offers a profound new understanding of how the Constitution can remain vital to life in the twenty-first century.

The European Court of Justice and the International Legal Order After Kadi

Abstract: This Article examines the response of European courts—and in particular of the European Court of Justice (“ECJ”)—to the dramatic challenges to the UN Security Council’s anti-terrorist sanctions regime recently brought before the courts The ECJ in Kadi annulled the European Community’s implementation of the Security Council’s asset-freezing resolutions on the ground that they violated European Union (“EU”) norms of fair procedure and of property protection Although Kadi has been warmly greeted by most observers, I argue that the robustly pluralist approach of the ECJ to the relationship between EU law and international law in Kadi represents a sharp departure from the traditional embrace of international law by the European Union Paralleling in certain striking ways the language of the US Supreme Court in Medellin v Texas, the approach of the ECJ in Kadi carries risks for the EU and for the international legal order in the message it sends to the courts of other states and organizations contemplating the enforcement of Security Council resolutions More importantly, the ECJ’s approach risks undermining the image the EU has sought to create for itself as a virtuous international actor maintaining a distinctive commitment to international law and institutions

Public Opinion and Senate Confirmation of Supreme Court Nominees

Abstract: Does public opinion influence Supreme Court confirmation politics? We present the first direct evidence that state-level public opinion on whether a particular Supreme Court nominee should be confirmed affects the roll-call votes of senators. Using national polls and applying recent advances in opinion estimation, we produce state-of-the-art estimates of public support for the confirmation of 10 recent Supreme Court nominees in all 50 states. We find that greater home-state public support does significantly and strikingly increase the probability that a senator will vote to approve a nominee, even controlling for other predictors of roll-call voting. These results establish a systematic and powerful link between constituency opinion and voting on Supreme Court nominees. We connect this finding to larger debates on the role of majoritarianism and representation.

Strategic Defiance and Compliance in the U.S. Courts of Appeals

Abstract: Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we formulate a theoretical framework based on current principal-agent models of the judiciary. We use the framework to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the U.S. Courts of Appeals. When the contemporary Supreme Court is ideologically estranged from the enacting Supreme Court, lower courts treat precedent much more harshly. Controlling for the ideological distance between the enacting and contemporary Supreme Courts, the preferences of the contemporary lower court itself are unrelated to its behavior. Hence, hierarchical control appears strong and effective. At the same time, however, a lower court's previous treatments of precedent strongly influence its later treatments. The results have important implications for understanding legal change and suggest new directions for judicial principal-agency theory.

Facultad latinoamericana de ciencias sociales

Abstract: The research herein presented explores the relationship between political pluralism as a constitutional principle and the possibility, if such, of making such pluralism effective by the Mexican judiciary, specifically by the Mexican Supreme Court, per the constitutional powers that were given to parliamentary minorities and partisan minorities to challenge before it in “Accion de Inconstitucionalidad” (unconstitutional law challenges). It explores the influence that the different understandings of democracy have taken in these matters, from democracy as majority, democracy as pluralism and deliberative democracy. Approaching judicial behavior and case law observed by the Supreme Court in these filings, we seek to shape the judicial protection or enforcement of political minorities.

Locating Supreme Court Opinions in Doctrine Space

Abstract: We develop a scaling model to estimate U.S. Supreme Court opinion locations and justice ideal points along a common spatial dimension using data derived from the citations between opinions. Citations from new opinions to precedent opinions usually apply and endorse the doctrine of the precedent opinion; however, sometimes they implicitly or explicitly dispute the precedent opinion. We collect original datasets classifying citations from search and seizure and freedom of religion opinions written between 1953 and 2006 into these different types and develop a model relating the similarity of the doctrine embodied in the citing and cited opinions to the relative probability of these different types of citations. The resulting spatial estimates of opinion location are used to evaluate theories of Supreme Court bargaining and opinion writing. We find empirical support for theoretical models that predict the majority opinion will fall at the ideal point of the median member of the majority coalition. Given the centrality of theories of judicial policymaking to various substantive problems in political science, the method of scaling opinions developed in this article can facilitate a range of future research.

Misframing Men: The Politics of Contemporary Masculinities

Abstract: This past decade has witnessed an extraordinary transformation in men's lives. For years, wave after wave of the women's movement, a movement that reshaped every aspect of American life, produced nary a ripple among men. But suddenly men are in the spotlight. Yet, the public discussions often seem strained, silly, and sometimes flat-out wrong. The spotlight itself seems to obscure as much as it illuminates. Old tired cliches about men's resistance to romantic commitment or reluctance to be led to the marriage altar seem perennially recyclable in advice books and on TV talk shows, but these days the laughter feels more forced, the defensiveness more pronounced. Pop biologists avoid careful confrontation with serious scientific research in their quest to find anatomical or evolutionary bases for promiscuity or porn addiction, hoping that by fiat, one can pronounce that "boys will be boys" and render it more than a flaccid tautology. And political pundits wring their hands about the feminisation of American manhood, as if gender equality has neutered these formerly proud studs. Misframing Men, a collection of Michael Kimmel's commentaries on contemporary debates about masculinity, argues that the media have largely misframed this debate. Kimmel, among the world's best-known scholars in gender studies, discusses political moments such as the Virginia Military Institute and Citadel cases that reached the Supreme Court (he participated as expert witness for the Justice Department) along with Promise Keepers rallies, mythopoetic gatherings, and white supremacists. He takes on antifeminists as the real male bashers, questions the unsubstantiated assertions that men suffer from domestic violence to the same degree as women, and examines the claims made by those who want to rescue boys from the "misandrous" reforms initiated by feminism. In writings both solidly grounded and forcefully argued, Kimmel pushes the boundaries of today's modern conversation about men and masculinity.

Religion and the American Constitutional Experiment

Abstract: * Introduction * The American Experiment in Historical Context * The First Millennium * The Papal Revolution * The Protestant Reformation * Religious Establishment Versus Religious Freedom * Colonization and Experimentation * The Theology and Politics of the Religion Clauses * Puritan Views * Evangelical Views * Enlightenment Views * Republican Views * The Essential Rights and Liberties of Religion * Liberty of Conscience * Free Exercise of Religion * Religious Pluralism * Religious Equality * Separation of Church and State * Disestablishment of Religion * Interdependence of Principles * Forging the First Amendment Religion Clauses * Religion and the Continental Congress * The 1787 Constitutional Convention * Ratification and Proposed Amendments * Drafting the First Amendment Religion Clauses * The Final Text * Summary and Conclusions * Religion and the States Before 1947 * Liberty of Conscience and Free Exercise * Religious Pluralism and Equality * Separation of Church and State * Disestablishment of Religion * Faith, Freedom, and the Frontier * Religion and the Supreme Court, 1815-1947 * Review of Federal Laws Touching Religion * Review of State Laws Touching Religion * Fundamental Religious Liberty and Incorporation * Modern Free Exercise Law * Mapping Modern Free Exercise Doctrine * The Multiple Principles of Modern Free Exercise Law * Neutralizing the Free Exercise Clause * Free Speech and Statutory Protections of Religion * Conclusions * Modern Disestablishment Law * Mapping Modern Disestablishment Doctrine * The Dominant Principle of Separation of Church and State * Toward Multiple Principles of Disestablishment * Conclusions * Toward an Integration of Religious Liberty: The American Experiment in International Context * Methods and Measures of Integration * Religious Rights and Liberties in International Context * International Norms and American Laws Compared * Concluding Reflections * Appendix 1: Drafts of Federal Religion Clauses (1787-1789) * Appendix 2: State Constitutional Provisions on Religion (as of 1947) * Appendix 3: United States Supreme Court Decisions Relating to Religious Liberty * Notes * Index

Making Rights a Reality?: Disability Rights Activists and Legal Mobilization

Abstract: 1. Introduction: legal mobilization and accommodating social movements 2. Rights and political identity in the Canadian disability movement 3. Disability equality and opportunity in the Supreme Court of Canada 4. Disability organizations and the diffusion of rights in the United Kingdom 5. Framing disability equality in the UK courts 6. Conclusions: litigation, mobilization and social movements.

Justices and Legal Clarity: Analyzing the Complexity of Supreme Court Opinions

Abstract: Legal clarity is important to understand and measure because of its connection to the rule of law. We provide the first systematic examination of the clarity of Supreme Court opinions and discover five important results. First, certain justices systematically craft clearer opinions than others. Justices Scalia and Breyer write the clearest opinions while Justice Ginsburg consistently writes the most complex opinions. Second, ideology does not predict clarity. Third, all justices write clearer dissents than majority opinions, while minimum winning coalitions produce the clearest majority opinions. Fourth, justices across the board write clearer opinions in criminal procedure cases than in any other issue area. Finally, opinions that formally alter Court precedent render less clear law, potentially leading to a cycle of legal ambiguity.

Habeas Corpus: From England to Empire

Abstract: We call habeas corpus the Great Writ of Liberty. But it was actually a writ of power. In a work based on an unprecedented study of thousands of cases across more than five hundred years, Paul Halliday provides a sweeping revisionist account of the world's most revered legal device. In the decades around 1600, English judges used ideas about royal power to empower themselves to protect the king's subjects. The key was not the prisoner's 'right' to 'liberty' - these are modern idioms - but the possible wrongs committed by a jailer or anyone who ordered a prisoner detained. This focus on wrongs gave the writ the force necessary to protect ideas about rights as they developed outside of law. This judicial power carried the writ across the world, from Quebec to Bengal. Paradoxically, the representative impulse, most often expressed through legislative action, did more to undermine the writ than anything else. And the need to control imperial subjects would increasingly constrain judges. The imperial experience is thus crucial for making sense of the broader sweep of the writ's history and of English law. Halliday's work informed the 2008 U.S. Supreme Court ruling in Boumediene v. Bush on prisoners in the Guantanamo detention camps. His eagerly anticipated book is certain to be acclaimed the definitive history of habeas corpus.

Corporate Political Speech: Who Decides?

Abstract: As long as corporations have the freedom to engage in political spending - a freedom expanded by the Supreme Court’s recent decision in Citizens United v. FEC - the law will have to provide rules governing how corporations decide to exercise that freedom. This paper, which was written for the Harvard Law Review’s 2010 Supreme Court issue, focuses on what rules should govern public corporations’ decisions to spend corporate funds on politics. Our paper is dedicated to Professor Victor Brudney, who long ago anticipated the significance of corporate law rules for regulating corporate speech. Under existing corporate-law rules, corporate political speech decisions are subject to the same rules as ordinary business decisions. Consequently, political speech decisions can be made without input from shareholders, a role for independent directors, or detailed disclosure - the safeguards that corporate law rules establish for special corporate decisions. We argue that the interests of directors and executives may significantly diverge from those of shareholders with respect to political speech decisions, and that these decisions may carry special expressive significance from shareholders. Accordingly, we suggest, political speech decisions are fundamentally different from, and should not be subject to the same rules as, ordinary business decisions. We assess how lawmakers could design special rules that would align corporate political speech decisions with shareholder interests. In particular, we propose the adoption of rules that (i) provide shareholders a role in determining the amount and targets of corporate political spending; (ii) require that political speech decisions be overseen by independent directors; (iii) allow shareholders to opt out of - that is, either tighten or relax - either of these rules; and (iv) mandate disclosure to shareholders of the amounts and beneficiaries of any political spending by the company, either directly or indirectly through intermediaries. We explain how such rules can benefit shareholders. We also explain why such rules are best viewed not as limitations on corporations’ speech rights but rather as a method for determining whether a corporation should be regarded as wishing to engage in political speech. The proposed rules would thus protect, rather than abridge, corporations’ First Amendment rights. We also discuss an additional objective that decisional rules concerning corporations’ political speech decisions may seek to serve: protecting minority shareholders from forced association with political speech that is supported by the majority of shareholders. We discuss the economic and First Amendment interests of minority shareholders that lawmakers may seek to protect. We suggest that decisional rules addressing political spending opposed by a sufficiently large minority of shareholders are likely to be constitutionally permissible, and we discuss how such rules could be designed by lawmakers.

Regional Autonomy and Legal Disorder: The Proliferation of Local Laws in Indonesia

Abstract: Under Indonesia’s decentralisation reforms authority was granted to two levels of regional government – provinces (propinsi) on the one hand, and districts (kabupaten) and cities (kota) on the other – to make their own policies and local laws. Many of the laws these new local authorities have passed have been criticised for being unclear, unnecessary, misdirected, exploitative of citizens and investors, or even unconstitutional. This article aims to describe and analyse the mechanisms under which these local laws can be reviewed and revoked, if deemed necessary. I show that the two currently-available mechanisms for review of local laws – bureaucratic review by the central government and judicial review by the national Supreme Court (Mahkamah Agung, or MA) – appear to be both deeply flawed. From an analysis of 500 bureaucratic review decisions, and 16 Supreme Court decisions, this study shows that, unless a local law seeks to impose a tax or user charge, it is highly unlikely to be reviewed. This is so even if its content breaches fundamental principles of law, including human rights, or has otherwise deleterious effects for citizens. This paper begins by discussing the legal infrastructure for decentralisation, focusing on the relative jurisdictions of the various levels of government, before turning to these bureaucratic and judicial review mechanisms. It concludes with observations about effects of this proliferation of local laws upon the Indonesian legal order.

Toward Democratic Consolidation? The Argentine Supreme Court, Judicial Independence, and the Rule of Law

Abstract: Too little attention has been paid to the role of judiciary in strengthening democracy and the rule of law in Latin America, with even less attention on the Argentine judicial system. In this paper, the role of the courts in consolidation will be examined through the Argentine case study. Part I outlines the current state of the literature on democratization and the rule of law with respect to Latin America, while Part II reviews what has been written about the Latin American judiciary and its influence on the rule of law. Part III evaluates the development of the judiciary and the rule of law in Argentina - focusing on the Argentine Supreme Court from its constitutional founding in 1853 through the end of the twentieth century. Part IV then evaluates the current-day Argentine predicament with respect to the Supreme Court's role during the turn-of-the-century economic crisis and President Kirchner's present judicial reform efforts. The lessons learned from the Argentine case study are many and diverse, but several general themes deserve mention: (1) Democratic consolidation takes time to develop, and the judiciary plays an important role as an important horizontal check on presidential and legislative action. (2) Informal institutions and practices are far more important and explanatory than formal institutions. To understand the role of the judiciary in Argentina, one must look beyond court opinions and constitutional text to examine the historical, economic, and political context in which the judiciary functioned. (3) Public trust in a democratic institution is essential for the institution to be able to carry out its duty - in this case, for the judiciary to serve as a primary guardian of the rule of law.

Hierarchical and Collegial Politics on the U.S. Courts of Appeals

Abstract: Do hierarchical politics in the federal judiciary shape collegial politics on the U.S. Courts of Appeals and thus influence judicial voting and case outcomes? I develop a model in which the political control of the dual layer of hierarchy above three-judge panels - full circuits and the Supreme Court - affects the ability of a single Democratic or Republican judge on a three-judge panel to influence two colleagues from the opposing party. The theory predicts that panel majorities should be more strongly influenced by a single judge of the opposing party - a "counter-judge" - when that judge is aligned with the Supreme Court. Examining thousands of judicial votes in multiple issue areas, I show that the effect of adding a counter-judge to a panel is indeed asymmetric, and varies based on hierarchical alignment. The interaction of hierarchical and collegial politics increases the Supreme Court's control of the judicial hierarchy andhelps promotes the rule of law.

Supreme Court Litigants and Strategic Framing

Abstract: Although litigants invest a huge amount of resources in crafting legal briefs for submission to the Supreme Court, few studies examine whether and how briefs influence Court decisions. This article asks whether legal participants are strategic when deciding how to frame a case brief and whether such frames influence the likelihood of receiving a favorable outcome. To explore these questions, a theory of strategic framing is developed and litigants’ basic framing strategies are hypothesized based on Riker’s theory of rhetoric and heresthetic as well as the strategic approach to judicial politics. Using 110 salient cases from the 1979–89 terms, I propose and develop a measure of a typology of issue frames and provide empirical evidence that supports a strategic account of how parties frame cases.

Miscarriage of Chief Justice: Judicial Power and the Legal Complex in Pakistan under Musharraf

Abstract: This article explores the struggle for judicial power in Pakistan under Pervez Musharraf focusing on two questions. First, how did pro‐Musharraf regime judges expand judicial power, leading to a confrontation with the regime? Second, how did the bar and the bench mobilize in the struggle for judicial power? The author shows how, instead of blindly supporting economic liberalization in a period of economic growth, the Supreme Court expanded power by scrutinizing questionable urban development, privatization, and deregulation measures in a virtuous cycle of public interest litigation. The author also describes how a politics of reciprocity explains the social mobilization of lawyers as the bench protected the bar from regime penetration, and the bar protected the bench from regime backlash. The Pakistani case questions some of our assumptions about economic liberalization and courts in authoritarian regimes, and the study invites scholars to explore the role of courts in developing judicial support structures and the role of lawyers in social movements.

The Separation of Powers and Supreme Court Agenda Setting

Abstract: This study employs the first systematic, empirical analysis that relies on archival data to examine whether the separation of powers influences justices’ agenda votes. It spatially models how justices set the Court’s agenda under a sincere approach as well as an SOP approach and compares the competing expectations derived therefrom. The results suggest that legislative and executive preferences fail to influence justices’ votes. Across every model tested, the data show justices uninfluenced by the separation of powers. These results provide a strong rejoinder to SOP models, since the Court’s agenda stage is the most likely stage of the decision-making process to show signs of an SOP effect.

The Nature of Supreme Court Power

Abstract: 1. Neither force, nor will 2. When courts command 3. Judging the court 4. Popular vertical issues 5. Unpopular vertical issues 6. Popular lateral issues 7. Unpopular lateral issues 8. Neither the sword nor the purse, but the keys.

Sensationalism and Sobriety Differential Media Exposure and Attitudes Toward American Courts

Abstract: While a great deal of research has focused on under- standing the foundations of public support for American courts, scant attention has been paid to the role of the media for such attitudes. Given the media's demonstrated ability to influence public opinion, this remains a substantial gap in the literature. In the present paper we examine how different types of media—sensationalist (i.e., political radio and cable news) or sober (i.e., newspapers and network news) — influence individuals' attitudes toward both the U.S. Supreme Court and courts at the state level. In line with our predictions, we find that sensationalist media exposure depresses both diffuse and specific support for American courts. Additionally, our results call into ques- tion the unconditional nature of the ubiquitous sophistication-approval relationship. We find that sophistication's positive effect on court atti- tudes is conditional on an individual's particular source of political information.

American balancing and German proportionality: The historical origins

Abstract: American and European constitutional systems have two similar doctrines: balancing and proportionality. Both resemble each other in important aspects and are often discussed in tandem. However, balancing has never attained the status of an established doctrine in American constitutional law in the same way that proportionality has in European constitutional law. Moreover, balancing has always been the subject of fierce criticism and is very much a controversial concept in American constitutional law. European proponents of proportionality are perplexed by this American resistance which is sometimes viewed as based on American isolationalism and unilateralism. In this article we suggest an original, and often overlooked, explanation to the difference between balancing and proportionality – the historical origins of the two concepts. We examine the ways in which proportionality developed in Germany and balancing in the United States and show that the origins of both concepts were very different. For instance, proportionality was originally developed in administrative law, and was only tangentially (if at all) related to private law, whereas balancing arose in private law and was only later extended to public law; proportionality was created as part of an attempt to protect individual rights, whereas balancing was created for the exact opposite purpose – to check overzealous protection of rights by the Supreme Court during the Lochner era. We suggest that these differences may go a long way in explaining current disparities in attitudes and current barriers to dialogue and convergence between these two concepts.

Learned Hand: The Man and the Judge

Abstract: A masterful, moving account of the life and work of one of the great judges of the twentieth century, whose work has left a profound mark on our legal, intellectual, and social landscape. The greatest judge never to be appointed to the Supreme Court, Learned Hand is widely considered the peer of Justices Holmes, Brandeis, and Cardozo. In his more than fifty years on the bench, he left an unequaled legacy of lastingly influential writings. This distinctive biography goes well beyond Hand's official work, however, to depict both a complex human being and the times in which he lived. The first to draw on the enormous collection of the judge's private papers, the eminent constitutional scholar Gerald Gunther vividly portrays a public man consumed by private doubts. Gunther's lively account moves from Hand's childhood in a formidable (and anxiety producing) family of lawyers to his years at Harvard as a studious outsider, his frustrating experience in private law practice, his felt inadequacies in marriage, and his work as a federal judge. Throughout his life, Hand believed himself unworthy of the accolades bestowed upon him; self-doubt permeated all aspects of his life. Gunther subtly explores the ties between the modest, uncertain man - a liberal skeptic who was never "too sure [he was] right" - and his public record, and suggests that Hand's personal traits shaped his modest approach to judging: the questioning human being could not help acting that way as a judge. Hand's most enduring legacy is his advocacy of judicial restraint: repeatedly he sounded the dangers of excessive activism in unelected judges. Yet he mustered the courage to support such basic values as freedom of expression -from his personally costly defense of dissenters amid the hysteria of World War I to his strong affirmation of free speech in his rulings on obscenity and his outspoken attacks on McCarthyism in the 1950s. This biography also offers the perspective of one of this era's most sens

Pay for Play: A History of Big-Time College Athletic Reform

Abstract: In an era when college football coaches frequently command higher salaries than university presidents, many call for reform to restore the balance between amateur athletics and the educational mission of schools This book traces attempts at college athletics reform from 1855 through the early twenty-first century while analyzing the different roles played by students, faculty, conferences, university presidents, the NCAA, legislatures, and the Supreme Court Pay for Play: A History of Big-Time College Athletic Reform also tackles critically important questions about eligibility, compensation, recruiting, sponsorship, and rules enforcement Discussing reasons for reform--to combat corruption, to level the playing field, and to make sports more accessible to minorities and women--Ronald A Smith candidly explains why attempts at change have often failed Of interest to historians, athletic reformers, college administrators, NCAA officials, and sports journalists, this thoughtful book considers the difficulty in balancing the principles of amateurism with the need to draw income from sporting events

“Citations in the U.S. Supreme Court: An Empirical Study of their use and Significance

Abstract: Supreme Court citations are rarely the subject of rigorous analysis. This Article presents an empirical examination of Supreme Court opinion citation practices since World War II, with a focus on the era from the Warren Court through the end of the Rehnquist Court. After theoretically analyzing the role of citations in judicial opinions and their significance, we explain how they may be used as a test of stare decisis and the Court’s projection of power and legitimation of its authority. We measure both the raw number of citations in majority opinions and the significance of the cases cited (using a calculation of their network centrality at the time of the decision). Various factors significantly influence citation frequency and choice, including the type of case. After controlling for these factors, we consider the relative citation practices of the Justices of the Court since the 1950s. This method allows us to find that political legitimation of decisions is a key determinant of citations, but that legal factors also matter. We also explore the citation practices of individual Justices. Our findings are consistent with the conventional wisdom in some instances, but serve to dispel other common beliefs. For example, we find that Justices Black and Douglas showed relatively little devotion to precedents but the Warren Court more generally was concerned about stare decisis. In the recent era, Justice Souter stands out for his citation practices. Finally, we examine the implications, on future citation use,