Showing papers on "Supreme court published in 2011"

The Ideological Mapping of American Legislatures

Abstract: The development and elaboration of the spatial theory of voting has contributed greatly to the study of legislative decision making and elections. Statistical models that estimate the spatial locations of individual legislators have been a key contributor to this success (Poole and Rosenthal 1997; Clinton, Jackman and Rivers 2004). In addition to applications to the U.S. Congress, spatial models have been estimated for the Supreme Court, U.S. presidents, a large number of non-U.S. legislatures, and supranational organizations. But, unfortunately, a potentially fruitful laboratory for testing spatial theories of policymaking and elections, the American states, has remained relatively unexploited. Two problems have limited the empirical application of spatial theory to the states. The rst is that state legislative roll call data has not yet been systematically collected for all states over time. Second, because ideal point models are based on latent scales, comparisons of ideal points across states or chambers within a state are dicult. This paper reports substantial progress on both fronts. First, we have obtained the roll call voting data for all state legislatures from the mid-1990s onward. Second, we exploit a recurring survey of state legislative candidates to enable comparisons across time, chambers, and states as well as with the U.S. Congress. The resulting mapping of America’s state legislatures has tremendous potential to address numerous questions not only about state politics and policymaking, but legislative politics in general.

Republic, Lost: How Money Corrupts Congress--and a Plan to Stop It

Abstract: In an era of ballooning corporate campaign expenditures, unleashed by the Supreme Court in Citizens United, trust in our government is at an all time low. More than ever before, Americans believe that money buys results in Congress - and that our Republic has been lost. Using examples that resonate as powerfully on the Right as on the Left, REPUBLIC, LOST not only makes clear how the economy of influence defeats the will of the people, but offers cogent strategies to correct our course - from a constitutional convention to a Regent Presidency. A onetime friend of Barack Obama, Lessig, a professor of law at Harvard, is as critical of the president and the Democratic Party as he is of Republicans. Both have allowed the core institution of our democracy to become little more than a shill for the most powerful moneyed interests in our Republic. America may be divided, argues Lessig, but we must recognize that corruption is our common enemy, and we must find a way to fight against it.

How Public Opinion Constrains the U.S. Supreme Court

Abstract: Although scholars increasingly acknowledge a contemporaneous relationship between public opinion and Supreme Court decisions, debate continues as to why this relationship exists. Does public opinion directly influence decisions or do justices simply respond to the same social forces that simultaneously shape the public mood? To answer this question, we first develop a strategy to control for the justices' attitudinal change that stems from the social forces that influence public opinion. We then propose a theoretical argument that predicts strategic justices should be mindful of public opinion even in cases when the public is unlikely to be aware of the Court's activities. The results suggest that the influence of public opinion on Supreme Court decisions is real, substantively important, and most pronounced in nonsalient cases.

The Collapse of American Criminal Justice

Abstract: The rule of law has vanished in America's criminal justice system. Prosecutors now decide whom to punish and how severely. Almost no one accused of a crime will ever face a jury. Inconsistent policing, rampant plea bargaining, overcrowded courtrooms, and ever more draconian sentencing have produced a gigantic prison population, with black citizens the primary defendants and victims of crime. In this passionately argued book, the leading criminal law scholar of his generation looks to history for the roots of these problems--and for their solutions. The Collapse of American Criminal Justice takes us deep into the dramatic history of American crime--bar fights in nineteenth-century Chicago, New Orleans bordellos, Prohibition, and decades of murderous lynching. Digging into these crimes and the strategies that attempted to control them, Stuntz reveals the costs of abandoning local democratic control. The system has become more centralized, with state legislators and federal judges given increasing power. The liberal Warren Supreme Court's emphasis on procedures, not equity, joined hands with conservative insistence on severe punishment to create a system that is both harsh and ineffective. What would get us out of this Kafkaesque world? More trials with local juries; laws that accurately define what prosecutors seek to punish; and an equal protection guarantee like the one that died in the 1870s, to make prosecution and punishment less discriminatory. Above all, Stuntz eloquently argues, Americans need to remember again that criminal punishment is a necessary but terrible tool, to use effectively, and sparingly.

Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court

Abstract: Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation's highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences (legal realism and the attitudinal model), the belief that the justices merely "apply" the law (mechanical jurisprudence and the myth of legality) is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court, the most unaccountable of all American political institutions, is nurtured by the view that judicial decisionmaking is discretionless and mechanical, the sources of institutional legitimacy under legal realism are less obvious. Here, we demonstrate, using a nationally representative sample, that the American people understand judicial decisionmaking in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in mechanical jurisprudence is therefore not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy. Americans today live in an era in which nearly all observers of the legal process acknowledge the key role of ideology and political values in the decisionmaking processes of U.S. Supreme Court justices. As two of the most prominent analysts of the Supreme Court observed: ''Simply put, Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he was extremely liberal'' (Segal & Spaeth 2002:86).1 Even if some debate exists about the degree to which the policy choices of justices are constrained by legal and extralegal factors (e.g., Bailey & Maltzman 2008; Black & Owens 2009; Caldeira & Wright 1988; Richards & Kritzer 2002), no serious analyst would today contend that the decisions of the justices of the Supreme Court are independent of the personal ideologies of the judges. In this sense, legal realism has carried the day.2 Indeed, as Packer (2006:83) and others (e.g., Peller 1985; Singer 1988) have put it: ''We are all realists now.''3 Yet it is not uncommon to find judges who deny that their own ideological and policy preferences shape their decisions. Justice Antonin Scalia has stated, for instance, ''To hold a government Act to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it. . . . Since the Constitution does not change from year to year; since it does not conform to our decisions, but our decisions are supposed to conform to it; the notion that our interpretation of the Constitution in a particular decision could take prospective form does not make sense'' (American Trucking Assns., Inc. v. Smith 1990, 496 U.S. 167, 201; (Scalia concurrence). 4 During her confirmation hearings, Judge Sonia Sotomayor similarly described a process of judging quite at odds with the depiction of the legal realists, most likely reflecting a strategic decision by Judge Sotomayor and President Barack Obama's political advisors to advance the image of discretionless judging and judges who merely ''implement'' the law, in part in reaction to attacks on President Obama's comments about needing judges with ''empathy'' on the Supreme Court. Judge Sotomayor's description of judicial decisionmakingFin particular, her depiction of the process as one of mechanical jurisprudenceFset off some furious criticism by legal scholars (e.g., Mauro 2009). Some even accused her of lying (Dworkin 2009). Asking what can be done about judges misrepresenting their actual processes of decisionmaking, Dworkin answers: ''Nothing, I fear, until the idea that judges' personal convictions can and should play no role in their decisions loosens its grip not just on politicians but on the public at large'' (Dworkin 2009: http://www.nybooks.com/articles/archives/2009/sep/24/justicesotomayor- the-unjust-hearings/? …

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.

Lower Court Influence on U.S. Supreme Court Opinion Content

Abstract: Despite the importance of Supreme Court opinions for the American polity, scholars have dedicated little systematic research to investigating the factors that contribute to the content of the justices’ opinions. In this article, we examine the ability of lower federal courts to shape the content of Supreme Court opinions. We argue that lower court opinions will influence the content of the Court’s opinions to the extent that the justices perceive that integrating language from lower court opinions will aid them in making efficacious law and policy. Utilizing plagiarism detection software to compare lower federal court opinions with the majority opinions of the Supreme Court during the 2002–2004 terms, we uncover evidence that the Court systematically incorporates language from the lower federal courts into its majority opinions.

Justices and Legal Clarity: Analyzing the Complexity of U.S. 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 in majority or concurring opinions. 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.

Chevron as a Voting Rule

Abstract: In Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the Supreme Court created a new framework for judicial deference to agency interpretations of law: courts should defer to an agency interpretation unless the relevant statute is clear or the agency interpretation is unreasonable. In the past two decades, however, the doctrinal Chevron framework has come under increasing strain. We suggest an alternative, which is to cast Chevron as a judicial voting rule, thereby institutionalizing deference to administrative agencies. Our thesis is that a voting rule of this sort would capture the benefits of the doctrinal version of Chevron while generating fewer costs. The principal advantage of institutionalizing Chevron as a voting rule is that it makes agency deference an aggregate property that arises from a set of votes, rather than an internal component of the decision rules used by individual judges. A voting-rule version of Chevron would also allow more precise calibration of the level of judicial deference over time, and holding the level of deference constant, a voting rule would produce less variance in deference across courts and over time, yielding a lower level of legal uncertainty than does the doctrinal version of Chevron. We consider and respond to various objections.

The End of Court-Ordered Desegregation

Abstract: In response to three Supreme Court rulings in the early 1990s, numerous court-ordered desegregation plans have been terminated. Using a unique dataset and an event study research design, this paper explores the impact of these terminations. The results suggest that termination produces a moderate increase in racial segregation. Outside of the south, dismissal also increases the rate at which black students drop out of school and attend private school. In the south, in contrast, there is no change in the school attendance patterns of blacks. Finally, evidence is presented that whites re-enter dismissed districts in large numbers in the south. (JEL H75, I21, I28, J15, K10)

Congress, the Supreme Court, and Judicial Review: Testing a Constitutional Separation of Powers Model

Abstract: RecentscholarshipsuggeststhattheUSSupremeCourtmightbeconstrainedbyCongressinconstitutionalcasesWesuggest two potential paths to Congressional influence on the Court’s constitutional decisions: a rational-anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional-maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases We test these models by using Common Space Scores and the original roll-call votes to estimate support in the current Congress for the original legislation and the Court’s preferences over that legislation We find that the Court does not appear to consider the likelihood of override in Constitutional cases, but it does back away from striking laws when it is ideologically distant from Congress

Courts in Latin America

Abstract: Introduction: courts in Latin America Gretchen Helmke and Julio Rios-Figueroa 1. Institutions for constitutional justice in Latin America Julio Rios-Figueroa 2. Enforcing rights and exercising an accountability function: Costa Rica's Constitutional Chamber of the Supreme Court Bruce M. Wilson 3. Strategic deference in the Colombian Constitutional Court, 1992-2006 Juan Carlos Rodriguez-Raga 4. From quietism to incipient activism: the institutional and ideological roots of rights adjudication in Chile Lisa Hilbink and Javier Couso 5. 'Faithful servants of the regime' - the Brazilian Constitutional Court's role under the 1988 Constitution Daniel M. Brinks 6. Power broker, policymaker, or rights protector? The Brazilian Supremo Tribunal Federal in transition Diana Kapiszewski 7. Legalist vs. interpretivist: the Supreme Court and the Democratic transition in Mexico Arianna Sanchez, Beatriz Magloni and Eric Magar 8. A theory of the politically independent judiciary: a comparative study of the United States and Argentina Rebecca Bill Chavez, John A. Ferejohn and Barry R. Weingast 9. Courts, power and rights in Argentina and Chile Druscilla Scribner 10. Bolivia: the rise (and fall) of judicial review Andrea Castagnola and Anibal Perez-Linan 11. The puzzle of judicial politics in Latin America: a theory of litigation, judicial decisions and inter-branch crises Gretchen Helmke and Jeffrey K. Staton.

The 'Liberation' of Federal Judges' Discretion in the Wake of the Booker/Fanfan Decision: Is There Increased Disparity and Divergence Between Courts?

Abstract: The United States Sentencing Guidelines are among the most ambitious attempts in history to control sentencing discretion. However, a major sea change occurred in January of 2005, when the U.S Supreme Court ruled in United States v. Booker and Fanfan that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The impact of the Booker/Fanfan decisions on interjurisdictional variation and sentencing disparity is an opportunity to examine the issue of whether the increased opportunity to sentence according to substantively rational criteria entails increased extralegal disparity. We draw on a conceptualization of courts as communities and a focal concerns model of sentencing decisions to frame expectations about federal sentencing in the wake of Booker/Fanfan. We test these expectations using USSC data on federal sentencing outcomes from four time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, post-Booker/Fanfan, and post-Gall v U.S. In general, we find that extralegal disparity and between-district variation in the effects of extralegal factors on sentencing have not increased post-Booker and Gall. We conclude that allowing judges greater freedom to exercise substantive rationality does not necessarily result in increased extralegal disparity.

A plea for caution: violent video games, the Supreme Court, and the role of science.

Abstract: On November 2, 2010, the US Supreme Court heard arguments in the case of Schwarzenegger v Entertainment Merchants Association, with a ruling expected in 2011. This case addressed whether states have the right to restrict freedom of speech by limiting the sale of violent video games to minors. To date, 8 states have tried to pass legislation to this effect, with all attempts being found unconstitutional by lower courts. In large part, the Supreme Court's decision will be determined by its review and interpretation of the medical and social science literature addressing the effects of violent video games on children. Those on both sides of the violent video game debate claim that the scientific literature supports their opinions. Some involved in the debate have proclaimed that the debate is scientifically settled and that only people holding personal interests and biases oppose these "established truths." We review the historical similarities found in the 1950s comic book debate and studies identified from a PubMed search of the term violent video games showing both the harmful and beneficial effects of these video games. We define factors that physicians need to consider when reading and stating opinions about this literature. Opinions from past court rulings are discussed to provide insight into how judges may approach the application of these social science studies to the current legal issue. Although on the surface the case of Schwarzenegger v Entertainment Merchants Association pertains only to the restriction of violent video games, it may establish principles about how medical and public health testimony can affect fundamental constitutional rights and how much and on what basis the courts will defer to legislators' reliance on unsettled science.

The "Liberation" of Federal Judges' Discretion in the Wake of the Booker/Fanfan Decision: Is There Increased Disparity and Divergence between Courts?

Abstract: The US Sentencing Guidelines are among the most ambitious attempts in history to control sentencing discretion. However, a major sea change occurred in January of 2005, when the US Supreme Court ruled in United States v. Booker and Fanfan, that in order to be constitutional, the federal guidelines must be advisory rather than presumptive. The impact of the Booker/Fanfan decisions on interjurisdictional variation and sentencing disparity is an opportunity to examine the issue of whether the increased opportunity to sentence according to substantively rational criteria entails increased extralegal disparity. We draw on a conceptualization of courts as communities and a focal concerns model of sentencing decisions to frame expectations about federal sentencing in the wake of Booker/Fanfan. We test these expectations using USSC data on federal sentencing outcomes from four time periods: prior to the 2003 PROTECT Act, the period governed by the PROTECT Act, post-Booker/Fanfan, and post-Gall v US. In general, w...

Review Essay — Helen Nissenbaum's Privacy in Context: Technology, Policy, and the Integrity of Social Life (2010)

Abstract: Social media is a dominating force in modern social life as internet technology has taken hold of our cyber-driven society. Many scholars, as will be explored below, have articulated fears and enthusiasm about what can be interpreted as a reconfiguration of privacy in a culture mediated by technology. Scholarship ranges from those opposing new conception of privacy in favour of protecting rights in traditional private/public distinctions with privacy as a privilege worthy of proprietary protection to those reveling in opening floodgates for information to re-invent or even destroy any semblance of traditional distinctions of privacy. These poles become even more accentuated in light of fast-proliferating technology illustrated by popular social networking websites such as Facebook, Twitter, Foursquare etc. In the North-American debate, the privacy concerns connected with these developments are compounded further by the U. S. Supreme Court's recent decision, Nelson v. NASA, which involves the constitutional right of government to ask for employee's personal information in the context of national security and surveillance.

Alien Language: Immigration Metaphors and the Jurisprudence of Otherness

Abstract: Metaphors tell the story of immigration law. Throughout its immigration jurisprudence, the U.S. Supreme Court has employed rich metaphoric language to describe immigrants attacking nations and aliens flooding communities. This Article applies research in cognitive linguistics to critically evaluate the metaphoric construction of immigrants in the law. Three conceptual metaphors dominate legal texts: IMMIGRANTS ARE ALIENS, IMMIGRATION IS A FLOOD, and IMMIGRATION IS AN INVASION. In order to gauge the prevalence of these metaphors, the Article engages in a textual analysis of modern Supreme Court opinions and presents original empirical data on the incidence of alienage terminology in federal court decisions. The Article explains how immigration metaphors influence not only judicial outcomes, but also social discourse and the broader debate over immigration reform. As such, the theoretical study of language has very practical consequences for the people defined by immigration metaphors. The Article concludes by proposing an oppositional metaphoric framework based on the concepts of migration and economic sanctuary. These metaphors describe immigration in terms of movement, work, and community, in contrast to existing legal metaphors that describe immigration in terms of danger, attack, and criminality. Thus, while today’s immigration metaphors signify a loss of economic security and cultural hegemony, the proposed terms emphasize immigrants’ economic contributions and potential for social belonging. This process of evaluation and substitution diminishes the power of existing metaphors to conflate and essentialize, while creating space in the legal imagination for new frames to emerge.

'Here, There and Everywhere': Human Dignity in Contemporary Law and in the Transnational Discourse

Abstract: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value - and each element has unique legal implications. The Article then considers how this elemental approach to human dignity analysis can assist in structuring legal reasoning and justifying judicial choices in hard cases, such as abortion, same-sex marriage and assisted suicide.

Strong advocacy led to successful implementation of smokefree Mexico City

Abstract: Objective To describe the approval process and implementation of the 100% smokefree law in Mexico City and a competing federal law between 2007 and 2010. Methods Reviewed smokefree legislation, published newspaper articles and interviewed key informants. Results Strong efforts by tobacco control advocacy groups and key policymakers in Mexico City in 2008 prompted the approval of a 100% smokefree law following the WHO FCTC. As elsewhere, the tobacco industry utilised the hospitality sector to block smokefree legislation, challenged the City law before the Supreme Court and promoted the passage of a federal law that required designated smoking areas. These tactics disrupted implementation of the City law by causing confusion over which law applied in Mexico City. Despite interference, the City law increased public support for 100% smokefree policies and decreased the social acceptability of smoking. In September 2009, the Supreme Court ruled in favour of the City law, giving it the authority to go beyond the federal law to protect the fundamental right of health for all citizens. Conclusions Early education and enforcement efforts by tobacco control advocates promoted the City law in 2008 but advocates should still anticipate continuing opposition from the tobacco industry, which will require continued pressure on the government. Advocates should utilise the Supreme Court9s ruling to promote 100% smokefree policies outside Mexico City. Strong advocacy for the City law could be used as a model of success throughout Mexico and other Latin American countries.

Law and the Culture of Israel

Abstract: PREFACE Introduction 1. Zionism and the Evolving New Culture 2. The Cultural Struggles over the Shaping of the Law 3. From Judicial Restraint to Judicial Activism 4. The Decline of Formalism and the Rise of Values 5. From Hegemony to War of Cultures 6. The Supreme Court and the Future of Liberalism 7. Israel as a Multicultural State 8. Law and Culture in the Coming Decades Conclusion Bibliography Index

Three Concepts of Dignity in Constitutional Law

Abstract: The U.S. Supreme Court and constitutional courts around the world regularly use the term human dignity when deciding cases about freedom of speech, reproductive rights, racial equality, gay marriage, and bioethics. Judges and scholars treat dignity as an important legal value, but they usually do not explain what it means and often imply that it has one obvious core meaning. A close review of constitutional decisions, however, demonstrates that courts do not have a singular conception of dignity, but rather different conceptions based on how they balance individual rights with the demands of social policy and community values. Using the insights of political theory and philosophy, this Article identifies three concepts of dignity used by constitutional courts and demonstrates how these concepts are fundamentally different in ways that matter for constitutional law. In contentious cases, the concepts of dignity will often conflict. If constitutional courts continue to rely on human dignity, judges must choose between different understandings of dignity. This Article provides the groundwork for making these choices and defending a concept of dignity consistent with American constitutional traditions.

Justice blocks and predictability of U.S. Supreme Court votes.

Abstract: Successful attempts to predict judges' votes shed light into how legal decisions are made and, ultimately, into the behavior and evolution of the judiciary. Here, we investigate to what extent it is possible to make predictions of a justice's vote based on the other justices' votes in the same case. For our predictions, we use models and methods that have been developed to uncover hidden associations between actors in complex social networks. We show that these methods are more accurate at predicting justice's votes than forecasts made by legal experts and by algorithms that take into consideration the content of the cases. We argue that, within our framework, high predictability is a quantitative proxy for stable justice (and case) blocks, which probably reflect stable a priori attitudes toward the law. We find that U.S. Supreme Court justice votes are more predictable than one would expect from an ideal court composed of perfectly independent justices. Deviations from ideal behavior are most apparent in divided 5–4 decisions, where justice blocks seem to be most stable. Moreover, we find evidence that justice predictability decreased during the 50-year period spanning from the Warren Court to the Rehnquist Court, and that aggregate court predictability has been significantly lower during Democratic presidencies. More broadly, our results show that it is possible to use methods developed for the analysis of complex social networks to quantitatively investigate historical questions related to political decision-making.

Emotions, Oral Arguments, and Supreme Court Decision Making

Abstract: Students of linguistics and psychology demonstrate that word choices people make convey information about their emotions and thereby their intentions. Focusing on theory from these related fields we test whether the emotional content of Supreme Court justices’ questions and comments made during oral arguments allow us to predict the decisions they make. Using aggregate data from all arguments between 1979 and 2008 and individual-level data from 2004 through 2008 we find justices’ use of more unpleasant language towards the attorney representing one side of a case reduces the probability that side will prevail on the merits, both in terms of individual justices’ votes and the overall case outcome.

On the Uses of Obscenity in Live Stand-Up Comedy

Abstract: This essay explores the use of swear words in stand-up comedy. Employing examples from the performances of two comedians who work the Midwest regional comedy club circuit, I analyze the non-referential pragmatic functions served by employing the register of dirty words. I critique flat-footed readings of the comedic use of obscenity, including that which informs recent Supreme Court censorship rulings, and argue instead for recognition of the communicative artistry displayed in such work.

Making Sense of Fair Use

Abstract: Many criticize fair use doctrine as hopelessly unpredictable and indeterminate. Yet in recent empirical studies, leading scholars have found some order in fair use case law where others have seen only chaos. Building upon these studies and new empirical research, this Article examines fair use case law through the lens of the doctrine’s chronological development and concludes that in fundamental ways fair use is a different doctrine today than it was ten or twenty years ago. Specifically, the Article traces the rise to prominence of the transformative use paradigm, as adopted by the Supreme Court in Campbell v. Acuff-Rose, over the market-centered paradigm of Harper & Row v. The Nation and its progeny. The Article presents data showing that since 2005 the transformative use paradigm has come overwhelmingly to dominate fair use doctrine, bringing to fruition a shift towards the transformative use doctrine that began a decade earlier. The Article also finds a dramatic increase in defendant win rates on fair use that correlates with the courts’ embrace of the transformative use doctrine. In light of these developments, adding an historical dimension to a study of fair use case law helps to make sense of what might otherwise appear to be a disconnected series of ad hoc, case-by-case judgments and explains why current rulings might seem to contradict those regarding like cases issued when the market-centered paradigm still reigned supreme.

The Sound, the Fury, and the Nonevent: Business Power and Market Reactions to the Citizens United Decision

Abstract: In the wake of the U.S. Supreme Court decision in Citizens United v. Federal Election Commission , supporters of campaign finance reform argued that American politics would soon be awash in corporate cash and that public policy outcomes would reflect the desires of big business. Using event study methodology to isolate the effect of Citizens United on firms’ stock prices, this article finds that the financial markets did not share this view. Rather, key events in the case did not significantly affect the share prices of those large firms heavily engaged in and sensitive to politics, suggesting that investors expected the decision to have no effect on political and policy outcomes of concern to corporate America.

Going Public When Opinion Is Contested: Evidence from Presidents' Campaigns for Supreme Court Nominees, 1930-2009

Abstract: The standard “political capital” model of going public assumes presidents do not face mobilized opponents. But often presidents must fight against opponents who themselves go public. We propose studying such situations with an “opinion contest” framework and use new data on Supreme Court nominations to contrast the political capital and opinion contest approaches. From 1930 to 2009 presidents went public over Supreme Court nominees primarily when groups mobilized against the nominee. Republican presidents did so particularly when their nominee would move the Supreme Court's median to the right. When going public, presidents typically engaged in “crafted talk.” Finally, going public was associated with more negative votes in the Senate, not fewer, because presidents went public over Supreme Court nominees only when battling an active opposition.

Does Public Opinion Influence the Supreme Court?: Probably Yes (But We’re Not Sure Why)

Abstract: Using qualitative data and historical methods, Barry Friedman asserts with confidence that “we the people” influence the decisions of the U.S. Supreme Court. Using quantitative data and statistical methods, political scientists are not so sure. Despite their best efforts to validate basic claims about the effect of public opinion on the Court, the evidence remains mixed at best. We enter this dialogue but in a voice distinct from existing political science work. Rather than explore the relationship between the public and the Court on a term-by-term basis, we analyze it at the level of the case. This allows us to exploit more nuanced public opinion data, as well as to attend to the many other case-level factors that may influence the Court’s decisions. Based on our analysis, we are prepared to say that Professor Friedman is on to something. When the “mood of the public” is liberal (conservative), the Court is significantly more likely to issue liberal (conservative) decisions. But why is anyone’s guess. Professor

The Supreme Court 2010 Term - Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law

Abstract: Why is the 'neutrality' of Supreme Court decisionmaking a matter of persistent political disagreement? What should be done to mitigate such conflict? Once the predominant focus of constitutional law scholarship, efforts to answer these questions are now widely viewed as evincing misunderstandings of what can be coherently demanded of theory and realistically expected of judges. This paper attributes the Court’s 'neutrality crisis' to a very different form of misunderstanding. The study of motivated reasoning (in particular cultural cognition) shows that individuals are predisposed to fit their perceptions of policy-relevant facts to their group commitments. In the course of public deliberations, these facts become suffused with antagonistic meanings that transform utilitarian policymaking into occasions for symbolic status competition. These same dynamics, the paper argues, make constitutional decisionmaking the focus of status competition among groups whose members are unconsciously motivated to fit perceptions of the Court’s decisions to their values. Theories of constitutional neutrality do not address the distinctive cognitive groundings of this form of illiberal conflict; indeed, they make it worse by promoting idioms of justification, in Court opinions and public discourse generally, that reinforce the predisposition of diverse groups to attribute culturally partisan aims to those who disagree with them. The divisive effects of motivated reasoning on policy deliberations can be offset by science communication techniques that avoid selectively threatening any group’s cultural worldview. Similarly, public confidence in the Supreme Court’s neutrality can be restored by the Court’s communication of meanings that uniformly affirm the values of culturally diverse citizens.

What Makes the Bonding Stick? A Natural Experiment Involving the U.S. Supreme Court and Cross-Listed Firms

Abstract: On March 29, 2010, the US Supreme Court signaled its intention to geographically limit the reach of the US securities antifraud regime and thus differentially exclude US-listed foreign firms from the ambit of formal US antifraud enforcement We use this legal surprise as a natural experiment to test the legal bonding hypothesis This event nonetheless was met with positive or indifferent market reactions based on matched samples, Brown-Warner, and portfolio analyses These results challenge the value of at least the US civil liability regime, as currently designed, as a legal bonding mechanism in such firms