Showing papers on "Supreme court published in 2012"

The Supreme Court's Many Median Justices

Abstract: One-dimensional spatial models have come to inform much theorizing and research on the U.S. Supreme Court. However, we argue that judicial preferences vary considerably across areas of the law, and that limitations in our ability to measure those preferences have constrained the set of questions scholars pursue. We introduce a new approach, which makes use of information about substantive similarity among cases, to estimate judicial preferences that vary across substantive legal issues and over time. We show that a model allowing preferences to vary over substantive issues as well as over time is a significantly better predictor of judicial behavior than one that only allows preferences to vary over time. We find that judicial preferences are not reducible to simple left-right ideology and, as a consequence, there is substantial variation in the identity of the median justice across areas of the law during all periods of the modern court. These results suggest a need to reconsider empirical and theoretical research that hinges on the existence of a single pivotal median justice.

Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan

Abstract: Acknowledgments Introduction Chapter 1 Excavating Extraterritoriality: The Legacies of Legal Pluralism, Subjecthood, and State-Building in China and Japan Chapter 2 Codifying extraterritoriality: The Chinese "Unequal Treaties" Chapter 3 Institutionalizing Extraterritoriality: The Mixed Court and the British Supreme Court in Shanghai Chapter 4 Exporting Extraterritoriality: The Evolution of Jurisdiction over Foreigners in Japan from the "Expulsion Edict" to the "Treaty of Tianjin" Chapter 5 Executing Extraterritoriality: Sino-Japanese Cases under the Treaty of Tianjin Chapter 6: Expelling Extraterritoriality: Treaty Revision in Meiji Japan and Qing China, 1860-1912 Conclusion Glossary Notes Bibliography

On Being 'Bound Thereby'

Abstract: Part of a symposium titled “Rewriting the U.S. Constitution,” this essay proposes rewriting Article VI, paragraph 2 – the Supremacy Clause – of the Constitution to vest the Supreme Court with appellate jurisdiction to review state-court decisions. The proposal seeks to fill the textual gap between Article III and the Supremacy Clause on a long-disputed question of constitutional law and federal jurisdiction. Since at least Martin v. Hunter’s Lessee (1816), the Court’s power to review state-court decisions has been established as a virtually supra-textual structural understanding through a blend of textual, doctrinal, and statutory arguments. But this common-law constitutional amalgam has also left ample room for critics of the Court to challenge its appellate review under the Exceptions Clause of Article III. Drawing on the various mechanisms of federal control over states proposed during the founding period, I argue that revision of the Supremacy Clause is necessary in order to ground the clause’s sweeping, self-executing definition of the “supreme law of the land” in a specific legal institution.

The Supreme Court’s Surprising Decision On The Medicaid Expansion: How Will The Federal Government And States Proceed?

Abstract: In National Federation of Independent Business v. Sebelius , the US Supreme Court upheld the constitutionality of the requirement that all Americans have affordable health insurance coverage. But in an unprecedented move, seven justices first declared the mandatory Medicaid eligibility expansion unconstitutional. Then five justices, led by Chief Justice John Roberts, prevented the outright elimination of the expansion by fashioning a remedy that simply limited the federal government’s enforcement powers over its provisions and allowed states not to proceed with expanding Medicaid without losing all of their federal Medicaid funding. The Court’s approach raises two fundamental issues: First, does the Court’s holding also affect the existing Medicaid program or numerous other Affordable Care Act Medicaid amendments establishing minimum Medicaid program requirements? And second, does the health and human services secretary have the flexibility to modify the pace or scope of the expansion as a negotiating str...

Who Controls the Content of Supreme Court Opinions

Abstract: Conventional arguments identify either the median justice or the opinion author as the most influential justices in shaping the content of Supreme Court opinions. We develop a model of judicial decision making that suggests that opinions are likely to reflect the views of the median justice in the majority coalition. This result derives from two features of judicial decision making that have received little attention in previous models. The first is that in deciding a case, justices must resolve a concrete dispute, and that they may have preferences over which party wins the specific case confronting them. The second is that justices who are dissatisfied with an opinion are free to write concurrences (and dissents). We demonstrate that both features undermine the bargaining power of the Court's median and shift influence towards the coalition median. An empirical analysis of concurrence behavior provides significant support for the model.

Does Public Opinion Influence the Supreme Court? Possibly 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 Friedman posits that the Justices will bend to the will of the people because the Court requires public support to remain an efficacious branch of government. Our analysis could be read to support this view, but it is equally consistent with another mechanism: that “the people” include the Justices. On this account, the Justices do not respond to public opinion directly, but rather respond to the same events or forces that affect the opinion of other members of the public. Our study proceeds as follows. In Part II, we briefly review the extant literature, emphasizing the similar methodology it invokes but the varying conclusions it reaches. Parts III and IV describe our methods and findings. We end, in Part V, with the implications of our statistical work for Professor Friedman’s claims, as well as for future research assessing the Court’s response to public opinion.

Is Arizona's Approach to Educating its ELs Superior to Other Forms of Instruction?

Abstract: BackgroundIn the Horne v Flores Supreme Court decision of June 25, 2009, the Court wrote that one basis for finding Arizona in compliance with federal law regarding the education of its English lea...

Gay Rights at the Ballot Box

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The Solicitor General and the United States Supreme Court: Executive Branch Influence and Judicial Decisions

Abstract: 1. The Solicitor General and the Supreme Court 2. The Office of the Solicitor General: the finest law firm in the country 3. Explanations for Solicitor General success 4. Solicitor General influence and agenda setting 5. Solicitor General influence and merits outcomes 6. Solicitor General influence and briefs 7. Solicitor General influence and legal doctrine 8. Conclusion 9. Appendices.

The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution

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The New Civil Death: Rethinking Punishment in the Era of Mass Conviction

Abstract: Most people convicted of felonies are not sentenced to prison; a majority receive straight probation, or probation with a jail term. However, this hardly means that the conviction is inconsequential. Tens of thousands of federal, state, and local laws, regulations, and ordinances restrict the civil rights, employment, eligibility for public benefits, residence and other aspects of the status of convicted persons. Accordingly, for many, the most serious and long-lasting effects of conviction flow from the status of being convicted and the concomitant lifetime subjection to collateral consequences. However, courts generally treat collateral consequences as non-punitive civil regulations, and therefore not subject to constitutional limitations on criminal punishment. This treatment of collateral consequences is surprising. In cases like Weems v. United States and Trop v. Dulles, the Supreme Court understood systematic loss of status not only to be punishment, but to be cruel and unusual punishment. Further, collateral consequences have practically revived the traditional punishment of civil death. Civil death deprived offenders of civil rights, such as the right to sue, and other aspects of legal status. Most civil death statutes were repealed in the Twentieth Century, but its equivalent has been reproduced through systematic collateral consequences. Instead of losing rights immediately, convicted people now hold their rights at sufferance, subject to limitation and restriction at the discretion of the government. The new civil death, loss of equal legal status and susceptibility to a network of collateral consequences, should be understood as constitutional punishment. In the era of the regulatory state, collateral consequences may now be more significant than was civil death in past decades. The actions of judges, defense attorneys, and prosecutors should attend to what is really at stake in criminal prosecutions.

Gender and Justice: Why Women in the Judiciary Really Matter

Abstract: 1. Introduction: Gender as a Social Process 2. Gender, Judging, and Difference 3. Mobilizing Emotions: The Case of Rosalie Wahl and the Minnesota Supreme Court 4. Strategic Partnerships and Women on the Federal Bench 5. Gender on the Agenda: Lessons from the United Kingdom 6. A Case for Representation: the European Court of Justice 7. Backlash Against Women Judges 8. Conclusion: Drawing on the History of Women's Exclusion from Juries to Make the Case for Women Judges

Using a Trauma-Informed Approach in Juvenile Justice Institutions

Abstract: Society struggles with mistreated, acting-out youth, vacillating between offering help and punishing. The Supreme Court has recently considered issues of adolescence and brain development when reviewing youth sentences; however, sentencing goals remain a local policy decision. Traditionally, our juvenile justice system follows either a punitive or a mental health model. This article offers a trauma-informed model, arguing that it is consistent with the Supreme Court’s approach and with sentencing goals. It reviews how the trauma-informed model differs from the two previous models, why this is preferable, and how to implement the new model in juvenile justice settings.

The Upside-Down Constitution

Abstract: Over the course of the nation's history, the Constitution has been turned upside-down, Michael Greve argues in this provocative book. The Constitution's vision of a federalism in which local, state, and federal government compete to satisfy the preferences of individuals has given way to a cooperative, cartelized federalism that enables interest groups to leverage power at every level for their own benefit. Greve traces this inversion from the Constitution's founding through today, dispelling much received wisdom along the way. The Upside-Down Constitution shows how federalism's transformation was a response to states' demands, not an imposition on them. From the nineteenth-century judicial elaboration of a competitive federal order, to the New Deal transformation, to the contemporary Supreme Court's impoverished understanding of constitutional structure, and the "devolution" in vogue today, Greve describes a trend that will lead to more government and fiscal profligacy, not less. Taking aim at both the progressive heirs of the New Deal and the vocal originalists of our own time, The Upside-Down Constitution explains why the current fiscal crisis will soon compel a fundamental renegotiation of a new federalism grounded in constitutional principles.

The State of American Federalism 2011–2012: A Fend for Yourself and Activist Form of Bottom-Up Federalism

Abstract: The signature developments in intergovernmental relations and federalism in 2011–2012 were generally found at the state and local levels. Strapped for funds to balance their budgets, states and local governments have made significant cutbacks, taken legal risks, renegotiated labor union contracts, and rejected federal aid. Conversely, subnational governments have created jobs and taken the lead in various policy areas. The U.S. Supreme Court showed strong support for state sovereignty claims, which could perhaps encourage further the bottom-up activism by state and local governments. The president and his administration made deft use of executive powers to influence public K–12 education reforms and energy and environmental policy, but much of the year was spent in budget wrangling over how to reduce the mounting federal debt.

Law and Neuroscience in the United States

Abstract: Neuroscientific evidence is increasingly reaching United States courtrooms in a number of legal contexts. Just in calendar year 2010, the U.S. legal system saw its first evidentiary hearing in federal court on the admissibility of functional magnetic resonance imaging (fMRI) lie-detection evidence; the first admission of quantitative electroencephalography (qEEG) evidence contributing in part to a reduced sentence in a homicide case; and a U.S. Supreme Court ruling explicitly citing brain development research. Additional indicators suggest rapid growth. The number of cases in the U.S. involving neuroscientific evidence doubled from 2006 to 2009. And since 2000, the number of English-language law review articles including some mention of neuroscience has increased fourfold. In 2008 and again in 2009, more than 200 published scholarly works mentioned neuroscience. The data clearly suggest that there is growing interest on the part of law professors, and growing demand on the part of law reviews, for scholarship on law and the brain (Shen 2010). In addition, a number of symposia on law and neuroscience have been held in the United States over the past few years, and despite the notable youth of the field, courses in Law and Neuroscience have been taught at a number of U.S. law schools. This vivid interest in neurolaw, from both scholars and practitioners, is born of the technological developments that allow noninvasive detection of brain activities. But despite the rapid increase of legal interest in neuroscientific evidence, it remains unclear how the U.S. legal system – at the courtroom, regulatory, and policy levels – will resolve the many challenges that new neuroscience applications raise. The emerging field of law and neuroscience is being built on a foundation joining: (a) rapidly developing technologies and techniques of neuroscience; (b) quickly expanding legal scholarship on implications of neuroscience; and (c) (more recently) neuroscientific research designed specifically to explore legally relevant topics. With the institutional support of many of the country’s top research universities, as well as the support of the John D. and Catherine T. MacArthur Foundation, among other private foundations and public funding agencies, the U.S. is well positioned to continue contributing to international developments in neurolaw. This chapter provides an overview of notable neurolaw developments in the United States. The chapter proceeds in six parts. Section 1 introduces the development of law and neuroscience in the United States. Section 2 then considers several of the evidentiary contexts in which neuroscience has been, and likely will be, introduced. Sections 3 and 4 discuss the implications of neuroscience for the criminal and civil systems, respectively. Section 5 reviews three special topics: lie detection, memory, and legal decision-making. Section 6 concludes with brief thoughts about the future of law and neuroscience in the United States. As judges, lawyers, legislators, and the public become more acquainted with neuroscientific evidence, and as neuroscience continues to produce more legally relevant findings, it is likely that we will see continued expansion of law and neuroscience in the United States.

Judicial Decision Making: Is Psychology Relevant?

Abstract: 1. How Do Judges Decide? 2. Opinion Formation and Expression. 3. Attempts to Influence Judges. 4. The Role of the Chief Justice. 5. Responses to Influence. 6. History of the Psychology - Law Relationship. 7. The American Psychological Association's. 8. The APA's Amicus Attempts to Influence the Supreme Court. 9. Unsuccessful Attempts to Influence the Court. 10. The Future of the Psychology - Law Relationship. References. Name Index. Subject Index.

The Road Ahead for the Affordable Care Act

Abstract: The Supreme Court case on the ACA's constitutionality was the latest of many obstacles for health care reform. The next challenge comes with the November 6 elections. Until then, implementation continues, though the Court's ruling will result in some changes.

The Supreme Court and Percolation in the Lower Courts: An Optimal Stopping Model

Abstract: The most prominent of the few stated criteria by which the Supreme Court decides to hear a case is the existence of a conflict among the lower courts. However, a lower court split does not automatically lead the Supreme Court to review a case, and the justices have often allowed lower court splits - and thereby the application of different legal standards across the country - to stand for long periods of time. What explains the Court's tolerance of conflict, and its eventual decision to resolve it? We model the Supreme Court's decision to intervene in a conflict as an optimal stopping problem. The Court faces a strategic trade-off between allowing conflict to continue while it learns about the implications of the possible policy choices and intervening to end a costly conflict between the lower courts. Our model provides the first theoretical framework for understanding when and how the Court decides to resolve lower court conflict.

US Supreme Court Agenda Setting and the Role of Litigant Status

Abstract: Whether the "haves" come out ahead of the "have nots" in the judicial process is a topic of great interest for scholars of the judiciary. Although studies of lower courts have found that litigant status generally matters, research at the US Supreme Court is not of one voice, with conflicting results across several studies. Bringing a novel perspective to this debate, we analyze litigant status at the Supreme Court's agenda-setting stage. Using archival data from the articles of Justice Blackmun, we find that litigant status influences the Court's decision making but that the nature of the effect can be mitigated by the interplay between a justice's ideology and the presence of interest group support. (OT1phvlslJEL C00, K00, K40) The Author 2010. Published by Oxford University Press on behalf of Yale University. All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org, Oxford University Press.

Political Justice? Perceptions of Politicization and Public Preferences Toward the Supreme Court Appointment Process

Abstract: To what extent should Supreme Court justices be appointed on the basis of ideology and politics as opposed to qualifications and ex- perience only? We examine how Americans preferences regarding this question are influenced by their perceptions of the Court as politicized in how it goes about its work. From a ''backlash'' perspective, such percep- tions should diminish preferences for a political appointment process, whereas a ''political reinforcement'' perspective suggests an enhance- ment effect. National survey data show that a large segment of the public perceives of the Court in political terms and prefers that justices be chosen on political and ideological bases. Empirical evidence refutes the back- lash hypothesis and supports the political reinforcement hypothesis; the more individuals perceive the Court in politicized terms, the greater their preferences for a political appointment process. Those who view the Court as highly politicized do not differentiate the Court from the ex- plicitly political branches and therefore prefer that justices be chosen on political and ideological grounds. The results have implications for the public's perceptions and expectations of the Court as a ''political'' institution.

Political Influence and Career Judges: An Empirical Analysis of Administrative Review by the Spanish Supreme Court

Abstract: This article develops an empirical analysis of judicial behavior in the Spanish Supreme Court, a court of law dominated by career judiciary. We focus on administrative review. The evidence seems to confirm that a career judiciary is not strongly politically aligned and favors consensus, formalism, and dissent avoidance. Notwithstanding, we detect a significant relationship between the decisions of the Court and the interest of the government. We suggest that our empirical analysis makes a significant contribution to undermine the myth of political insulation by career judges. Unlike previous literature, however, we argue and illustrate that judicial politicization can be consistent with consensus and dissent avoidance.

Proportionality in Constitutional Law: Why Everywhere But Here?

Abstract: INTRODUCTION Suppose you are a judge--not on a European constitutional court, where the principle of proportionality is generally accepted, nor on the U.S. Supreme Court, where, according to general wisdom, the principle is hardly known and hardly used, but on a fictitious moral court. No statutes, no precedent--each case is decided on its moral merits only. Two neighbors, John and Frank, who live high up in the mountains come before you. In the middle of a cold and stormy winter night, John took Frank's four-wheel drive car without asking and didn't return it until the next evening. Frank who had wanted to pick up his elderly mother in the morning at the lonely bus station in the valley, couldn't do so. The old lady stood in the cold for two hours before the postman drove by; he had to bring her to the hospital with frostbite. Frank thinks John should at least apologize for his immoral action. John is truly sorry for what happened but thinks he shouldn't be morally blamed. You are the judge--what will you do? You ask John how he could do what he did. He explains that he took Frank's car to bring his pregnant wife to the hospital; her water had broken. You ask why he didn't use his own car. He explains that he needed a four-wheel drive car because it had snowed heavily. You ask why he took the car without asking. He points out that he and Frank had often taken and used each other's things without asking and that he hadn't wanted to wake Frank up in the middle of the night. Then you turn to Frank. In view of what John has explained, does he still blame John for his immoral action? Frank does, because he had told John of his plan to pick up his mother the next morning. You confront John with this information. He says he is sorry for the old lady's frostbite but that he knew that with the postman driving by nothing serious could happen to her, while his wife's situation was a matter of life and death. You call the hospital, and it turns out that indeed John's wife, who delivered unexpectedly early, could have died if she hadn't reached the hospital when she did. And it also turns out that Frank's mother has recovered well and fast. Whatever you decide, maybe that John and Frank should reconcile because what happened was a chain of unfortunate events, you have engaged in a proportionality analysis. You asked Frank about the end that he pursued; you found out that the end was legitimate; that his action was a helpful, even a necessary means to pursue the end; that there was no alternative means that would have harmed Frank and his mother less; and that the end, saving John's wife's life, was important enough to justify the harm done to Frank's mother. Proportionality analysis is about means and ends, and whenever there is no law, here no moral law, specifically commanding, prohibiting, or allowing an action, we justify or condemn the action based on the legitimacy of the end pursued and on the helpfulness, necessity, and appropriateness of the action as a means to that end. The proportionality principle thus reads as follows: If you pursue an end, you must use a means that is helpful, necessary, and appropriate. A means that doesn't help to reach the end isn't a real means--to use it would be out of proportion. It is also out of proportion to use a means that does more than necessary, for example a means which is more harmful or more expensive than necessary. It is equally out of proportion to use a means that is inappropriate because, even though it is necessary, by using it you do more harm than the end is worth or you spend more than you gain. It would have been out of proportion and, in our context, immoral if John had taken Frank's helicopter, when, even though he knew how to fly it, he didn't have the skill to land; this would not have helped him to save his wife. It would have been out of proportion and immoral for John to take Frank's four-wheel drive car if John's normal car would have worked just as well; this would have been unnecessary to save his wife. …

Judicial Review and Religious Freedom: The Case of Indonesian Ahmadis

Abstract: This article analyses the implications of the controversy over Ahmadiyah for religious freedom and tolerance in Indonesia from a legal perspective. In particular, it examines the legality of regulations passed by regional governments that attempt to ban the activities of Ahmadiyah. The article demonstrates why it is unlikely that an application for judicial review of these regional regulations will succeed in the Supreme Court (Mahkamah Agung). If this is the case, it means that local governments remain free to use local regulations to restrict the rights of religious minorities such as Ahmadis.

American intergovernmental relations: foundations, perspectives, and issues, 5th ed.

Abstract: With the addition of brand new co-editor, Robert Christensen, this trusted reader is back in a fresh and insightful fifth edition. To the general structure that has made American Intergovernmental Relations so enduring, the editors have added a new section that incorporates the importance of law and courts to intergovernmental relations. This new section explicitly grounds the study of intergovernmental relations to foundational Constitutional text and the dynamic role of the Supreme Court in interpreting constitutional powers. Tool and Christensen have also added new selections that cover society's current and most pressing intergovernmental policy issues, including health care, immigration, and the evolving and controversial issue of medical marijuana. As always, each essay is judiciously edited and substantial part introductions further contextualize each essay's contribution to make American Intergovernmental Relations an accessible and invaluable text, as well as an engaging read

Rehabilitating Lochner: Defending Individual Rights against Progressive Reform

Abstract: In this timely reevaluation of an infamous Supreme Court decision, David E. Bernstein provides a compelling survey of the history and background of Lochner v. New York. This 1905 decision invalidated a state law limiting work hours and became the leading precedent contending that novel economic regulations were unconstitutional. Sure to be controversial, "Rehabilitating Lochner" argues that despite the decision's reputation, it was well-grounded in precedent - and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents. Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, "Rehabilitating Lochner" argues not only that the court acted reasonably in Lochner, but that Lochner and like-minded cases have been widely misunderstood and unfairly maligned ever since.

The Problem of Measuring Legal Change, with Application to Bell Atlantic v. Twombly

Abstract: Measuring legal change—i.e., change in the way that judges decide cases—presents a vexing problem. In response to a change in the behavior of courts, plaintiffs and defendants will change their patterns of filing and settling cases. Priest and Klein’s (1984) selection model predicts that no matter how favorable or unfavorable the legal standard is to plaintiffs, the rate at which plaintiffs prevail in litigation will not predictably change; thus, legal change cannot be measured with data on court outcomes. In this paper, I extend the selection model to develop a methodology for measuring legal change, even in the presence of selection effects. I apply this methodology to a recent, high profile Supreme Court case, Bell Atlantic Corp. v. Twombly. My model generates novel predictions, which are confirmed in the data, and I find that Twombly caused no legal change, even after accounting for possible selection effects. ∗Assistant Professor of Law, University of Chicago Law School, and Ph.D. Candidate, University of Chicago Department of Economics. I am grateful for comments from Amanda Agan, Douglas Baird, Gary Becker, Omri Ben-Shahar, Emily Buss, Joe Cecil, Lee Epstein, Jonathan Hall, Cheryl Hubbard, Ashley Keller, Bill Landes, Ethan Lieber, Anup Malani, Tom Miles, Emily Oster, Mark Phillips, Richard Posner, Luke Threinen, Andrew Zuppann, and participants at the University of Chicago Law School Work-InProgress Workshop. I thank Lee Epstein, Bill Landes, and Richard Posner for providing me with their dataset of published opinions on motions to dismiss. Dylan Benson, Tirsit Berhanu, Liz Chao, Helen Chen, Jessica Dueck, and Georgia Sampedro provided invaluable assistance in preparing this dataset for analysis.