Showing papers on "Supreme court published in 2015"

Montgomery v Lanarkshire Health Board

Abstract: This case note discusses the decision of the UK Supreme Court in Montgomery v Lanarkshire Health Board, a case concerning the negligent failure by a doctor to disclose a risk associated with childb...

Chief Justice Roberts's Health Care Decision Disrobed: The Microfoundations of the Supreme Court's Legitimacy

Abstract: The 2012 challenge to the Affordable Care Act was an unusual opportunity for people to form or reassess opinions about the Supreme Court. We utilize panel data coupled with as-if random assignment to reports that Chief Justice Roberts's decision was politically motivated to investigate the microfoundations of the Court's legitimacy. Specifically, we test the effects of changes in individuals' ideological congruence with the Court and exposure to the nonlegalistic account of the decision. We find that both affect perceptions of the Court's legitimacy. Moreover, we show that these mechanisms interact in important ways and that prior beliefs that the Court is a legalistic institution magnify the effect of updating one's ideological proximity to the Court. While we demonstrate that individuals can and did update their views for multiple reasons, we also highlight constraints that allow for aggregate stability in spite of individual-level change.

Is the U.S. Supreme Court's Legitimacy Grounded in Performance Satisfaction and Ideology?

Abstract: Bartels and Johnston have recently presented evidence suggesting that the legitimacy of the U.S. Supreme Court is grounded in the ideological preferences and perceptions of the American people. In addition, they offer experimental data purporting to show that dissatisfaction with a single Court decision substantially diminishes the institution's legitimacy. These findings strongly break with earlier research on the Court's institutional support, as the authors recognize. The theoretical implications of their findings are profound. If the authors are correct that legitimacy is strongly dependent upon satisfying the policy preferences and ideological predilections of the American people, the essence of legitimacy is fundamentally transformed. Consequently, we reinvestigate the relationships among ideology, performance satisfaction, and Court legitimacy, unearthing empirical findings that diverge markedly from theirs. We conclude with some thoughts about how the Court's �countermajoritarian dilemma� can be reconceptualized and recalculated, once more drawing conclusions sharply at odds with those of Bartels and Johnston.

After Roe: The Lost History of the Abortion Debate

Abstract: Forty years after the U.S. Supreme Court handed down its decision legalizing abortion, "Roe v. Wade" continues to make headlines. "After Roe: The Lost History of the Abortion Debate" cuts through the myths and misunderstandings to present a clear-eyed account of cultural and political responses to the landmark 1973 ruling in the decade that followed. The grassroots activists who shaped the discussion after "Roe," Mary Ziegler shows, were far more fluid and diverse than the partisans dominating the debate today.In the early years after the decision, advocates on either side of the abortion battle sought common ground on issues from pregnancy discrimination to fetal research. Drawing on archives and more than 100 interviews with key participants, Ziegler s revelations complicate the view that abortion rights proponents were insensitive to larger questions of racial and class injustice, and expose as caricature the idea that abortion opponents were inherently antifeminist. But over time, pro-abortion and anti-abortion positions hardened into pro-choice and pro-life categories in response to political pressures and compromises. This increasingly contentious back-and-forth produced the interpretation now taken for granted that "Roe "was primarily a ruling on a woman s right to choose.Peering beneath the surface of social-movement struggles in the 1970s, "After Roe" reveals how actors on the left and the right have today made "Roe" a symbol for a spectrum of fervently held political beliefs."

Partisan Gerrymandering and the Efficiency Gap

Abstract: The usual legal story about partisan gerrymandering is relentlessly pessimistic. The courts did not even recognize the cause of action until the 1980s; they have never struck down a district plan on this basis; and four sitting justices want to vacate the field altogether. The Supreme Court’s most recent gerrymandering decision, however, is the most encouraging development in this area in a generation. Several justices expressed interest in the concept of partisan symmetry—the idea that a plan should treat the major parties symmetrically in terms of the conversion of votes to seats—and suggested that it could be shaped into a legal test. In this Article, we take the justices at their word. First, we introduce a new measure of partisan symmetry: the efficiency gap. It represents the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast. It captures, in a single tidy number, all of the packing and cracking decisions that go into a district plan. It also is superior to the metric of gerrymandering, partisan bias, that litigants and scholars have used until now. Partisan bias can be calculated only by shifting votes to simulate a hypothetical tied election. The efficiency gap eliminates the need for such counterfactual analysis. Second, we compute the efficiency gap for congressional and state house plans between 1972 and 2012. Over this period as a whole, the typical plan was fairly balanced and neither party enjoyed a systematic advantage. But in recent years—and peaking in the 2012 election—plans have exhibited steadily larger and more pro-Republican gaps. In fact, the plans in effect today are the most extreme gerrymanders in modern history. And what is more, several are likely to remain extreme for the remainder of the decade, as indicated by our sensitivity testing. Finally, we explain how the efficiency gap could be converted into doctrine. We propose setting thresholds above which plans would be presumptively unconstitutional: two seats for congressional plans and 8 percent for state house plans, but only if the plans probably will stay unbalanced for the remainder of the cycle. Plans with gaps above these thresholds would be unlawful unless states could show that the gaps either resulted from the consistent application of legitimate policies or were inevitable due to the states’ political geography. This approach would

Beyond "homophobia": Thinking more clearly about stigma, prejudice, and sexual orientation.

Abstract: This article addresses the topic of homophobia. Recent events might make it seem as though it is dying out. Hate crimes based on a person's sexual orientation or gender presentation can now be prosecuted by the federal government, even when they occur in states lacking their own hate crime laws. Numerous states have changed their laws to permit same-sex couples to marry, some through the passage of legislation and others through ballot measures. Since the U.S. Supreme Court's 2013 decision overturning part of the Defense of Marriage Act, those marriages have been recognized by the federal government. With the dramatic and relatively rapid turnaround in public opinion, this article focuses on the changes in stigma and issues of sexual prejudice as well.

Heart versus Head: Do Judges Follow the Law or Follow Their Feelings?

Abstract: Emotion is a fundamental aspect of human existence. In normal, healthy people, feelings about options exert a powerful influence on choice. Intuition and anecdote suggest that people react more positively toward others whom they like or for whom they feel sympathy than toward others whom they dislike or for whom they feel disgust. Empirical research in the field of psychology confirms that impression. Experiments also show that this effect extends to legal contexts, revealing that emotional reactions to litigants influence the decisions of mock jurors in hypothetical civil and criminal cases. This Article explores the question whether feelings about litigants also influence judges' decisions. Unlike jurors, judges are expected to put their emotional reactions to litigants aside. Can they do it? The first reported experiments on the topic using actual judges as subjects suggest that they cannot.Passion and prejudice govern the world; only under the name of reason.1-Reverend John WesleyI. IntroductionEighty years ago the great American trial lawyer Clarence Darrow observed that: "Jurymen seldom convict a person they like, or acquit one that they dislike. The main work of a trial lawyer is to make a jury like his client, or, at least, to feel sympathy for him; facts regarding the crime are relatively unimportant."2 Similarly, United States Circuit Judge Jerome Frank asserted that "Mr. Prejudice and Miss Sympathy are the names of witnesses whose testimony is never recorded, but must nevertheless be reckoned with in trials by jury."3 We suspect that these observations are exaggerations but that they also hold some truth.4 Sympathy and empathy in the jury box can be defended as softening the sometimes sharp edges of our legal system.5 Judges, however, are supposed to make reasoned decisions based on the facts and the law rather than on the basis of enmity or empathy for litigants.6 Judicial oaths require judges to put their feelings towards litigants aside.7 But judges are human beings too. Are they any less swayed by their prejudices and sympathies than juries?8Whether judges can make dispassionate decisions or not, politicians and the public expect and even demand that they do so. When United States Supreme Court Justice David Souter announced his retirement, for example, President Barack Obama stated that he was searching for a replacement who would embrace emotions in at least some settings. As the President put it: "I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving a[t] just decisions . . . ."9 Innocuous as it might seem to suggest that a Supreme Court Justice should try to understand the perspectives of those who appear before her, the statement ignited a firestorm of criticism.10 Some suggested that the President's emphasis on empathy was tantamount to abandoning the rule of law.11 Equating empathy with partiality, Senator Charles Grassley asserted that "the most critical qualification of a Supreme Court Justice [is] the capacity to set aside one's own feelings so that he or she can blindly and dispassionately administer equal justice for all."12Most judges embrace Senator Grassley's views and routinely reject the idea that emotions should influence their decisions. Asked about the proper role of a judge during her Senate confirmation hearing, United States Supreme Court Justice Sonia Sotomayor responded: "[J]udges can't rely on what's in their heart. . . . [I]t's not the heart that compels conclusions in cases. It's the law."13 Subsequently, President Obama's second nominee to the Supreme Court, Elena Kagan, articulated the same view during her own Senate confirmation hearings. When asked whether it was ever appropriate for a judge to rely on his or her feelings, even in extremely close cases, she replied, "it's law all the way down."14 Other judges commonly echo these claims. A recent nominee to the United States District Court for the Northern District of Georgia, Judge Michael Boggs, testified before the Senate Judiciary Committee: "The comforting part about being a judge is that that the law should prevail in each and every case. …

Culture Warriors Go To Court: The Supreme Court and the Battle for the "Soul" of America

Abstract: Title of Dissertation: CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA Michael Odell Spivey, Doctor of Philosophy, 2015 Dissertation Directed by: Professor Wayne McIntosh Department of Government and Politics The notion of a “culture war” has become a fixture in the academic writing about current American politics, in the popular press and in the cultural zeitgeist. Theorists have suggested that there is a cultural fault line dividing cultural progressives and religious traditionalists. This fault line, it is argued, stems from a basic epistemological disagreement as to whether there is transcendent “truth.” According to James Davidson Hunter, these different worldviews lead to policy polarization and cultural warfare. Hunter goes on to suggest that courts (and especially the Supreme Court) are focal points for this conflict. This work analyzes the nature and scope of battles over culture war issues in the United Supreme Court. It relies on a popular description of key culture war issues: God, guns and gays. The Supreme Court’s treatment of each of these issues is analyzed in turn. In addition, the Supreme Court’s abortion jurisprudence is also examined. With respect to each issue, key Supreme Court cases are identified. The briefs filed by the parties are then summarized and coded, identifying key “modalities” of arguments and specific arguments themselves. All amicus briefs are similarly analyzed and coded. The key Supreme Court decisions are then analyzed in light of arguments raised by parties and amici. Based upon this analysis, it appears that there is not one culture war but rather an interrelated set of cultural battles. Relatedly, there has been an evolution of cultural warfare over time. Some issues have become largely settled (at least within the Court’s jurisprudence); others are on their way to being settled and still others present continuing opportunities for cultural clashes. The work concludes by suggesting that the sexual revolution lies at the heart of cultural warfare. Moreover, cultural battles are over the “meaning” of America, that is, what social values will be protected under law. CULTURE WARRIORS GO TO COURT: THE SUPREME COURT AND THE BATTLE FOR THE “SOUL” OF AMERICA by Michael Odell Spivey Dissertation submitted to the Faculty of the Graduate School of the University of Maryland, College Park in partial fulfillment of the requirements for the degree of Doctor of Philosophy 2015 Advisory Committee: Professor Wayne McIntosh, Chair Professor Karen Kaufmann Professor Frances Lee Professor Irwin Morris Professor Susan Dwyer ©Copyright by Michael Odell Spivey 2015

Measuring the Political Salience of Supreme Court Cases

Abstract: While Supreme Court cases are generally salient or important, some are many degrees more important than others. A wide range of theoretical and empirical work throughout the study of judicial politics implicates this varying salience. Some work considers salience a variable to be explained, perhaps with judicial behavior the explanatory factor. The currently dominant measure of salience is the existence of newspaper coverage of a decision, but decisions themselves are an act of judicial politics. Because this coverage measure is affected only after a decision is announced, using it limits the types of inferences we can draw about salience. We develop a measure of latent salience, one that builds on existing work, but that also explicitly incorporates and models predecision information. This measure has the potential to ameliorate concerns of causal inference, put research findings on sounder footing, and add to our understanding of judicial behavior.

Limiting Political Contributions after McCutcheon, Citizens United, and SpeechNow

Abstract: There was something unreal about the opinions in McCutcheon v. FEC. These opinions examined a series of strategies for circumventing the limits on contributions to candidates imposed by federal election law, but they failed to notice that the limits were no longer breathing. The D.C. Circuit’s decision in SpeechNow.org v. FEC had created a far easier way to evade the limits than any of those the Supreme Court discussed. SpeechNow held all limits on contributions to super PACs unconstitutional.This Article argues that the D.C. Circuit erred; Citizens United v. FEC did not require unleashing super PAC contributions. The Article also considers what can be said for and against a bumper sticker’s declarations that “MONEY IS NOT SPEECH!” and “CORPORATIONS ARE NOT PEOPLE!” It proposes a framework for evaluating the constitutionality of campaign-finance regulations that differs from the one currently employed by the Supreme Court. And it proposes a legislative scheme of campaign-finance regulation that would effectively limit contributions while respecting the Supreme Court’s campaign-finance decisions.

The Effect of High School Socioeconomic, Racial, and Linguistic Segregation on Academic Performance and School Behaviors

Abstract: Background/ContextThe 1954 U.S. Supreme Court decision on Brown v. Board of Education concluded that segregated schools were inherently unequal and therefore unlawful. That decision was not based s...

The History of Patenting Genetic Material

Abstract: The US Supreme Court's recent decision in Association for Molecular Pathology v. Myriad Genetics, Inc. declared, for the first time, that isolated human genes cannot be patented. Many have wondered how genes were ever the subjects of patents. The answer lies in a nuanced understanding of both legal and scientific history. Since the early twentieth century, "products of nature" were not eligible to be patented unless they were "isolated and purified" from their surrounding environment. As molecular biology advanced, and the capability to isolate genes both physically and by sequence came to fruition, researchers (and patent offices) began to apply patent-law logic to genes themselves. These patents, along with other biological patents, generated substantial social and political criticism. Myriad Genetics, a company with patents on BRCA1 and BRCA2, two genes critical to assessing early-onset breast and ovarian cancer risk, and with a particularly controversial business approach, became the antagonist in an ultimately successful campaign to overturn gene patents in court. Despite Myriad's defeat, some questions concerning the rights to monopolize genetic information remain. The history leading to that defeat may be relevant to these future issues.

Gender and Power in American Legislative Discourse

Abstract: In a modern democracy, all citizens theoretically are guaranteed an equal opportunity at political representation. This paper shows that democratic theory does not always hold in practice in the United States. Discourse analysis is applied to the language used in the 1990 hearings conducted by the U.S. Senate Committee on the Judiciary on the nomination of Judge David H. Souter to be Associate Justice of the Supreme Court Results show that while women are noticeably present as witnesses in hearings, they are not treated on an equal footing with men. Women's access to the political debate is limited, because they are given proportionally less time to speak than male witnesses. Further, empirical measures indicate that the effectiveness of women's testimony is undermined by senators' responses. Although women utilize what is defined as masculine language to compete within a male-dominated institution, gendered expectations can prevent them from being treated as authoritative witnesses.

The Influence of Amicus Curiae Briefs on U.S. Supreme Court Opinion Content

Abstract: To understand constitutional law in the United States, judges and scholars point to a variety of sources. Some judges stress the need to focus on the preferences or words of the framers (Bork 1990; Scalia 1997), while others offer the view that the Constitution should be understood according to more contemporary values (Breyer 2005). Academics argue that constitutional law develops by other means, including through long term constitutional conversations (Friedman 1993), interbranch interactions (Meernik and Ignagni 1997), and social movements (Ackerman 1991). While each of these perspectives offers insight into American constitutional development, arguably the most important vehicle for comprehending constitutional law is found in the majority opinions of the Supreme Court (Shapiro 1968). Through its opinions, the Court establishes appropriate norms of behavior, provides guidelines regarding the constitutionality of particular programs, and affords direction to lower court judges and future Supreme Courts who are charged with adjudicating disputes touching on similar factual circumstances. Our purpose here is to contribute to our understanding of Supreme Court opinions by examining the extent to which amicus curiae ("friend of the court") briefs influence their content.Investigating this topic is significant for a number of reasons. First, it sheds new light on the ability of interest groups to shape the Court's policy outputs. Although there has been no shortage of research on friends of the court, scholars have overwhelmingly examined the ability of amici to influence case outcomes or the justices' voting behavior in those cases (e.g., Black and Boyd 2013; Box-Steffensmeier, Christenson, and Hitt 2013; Caldeira and Wright 1988; Collins 2008a; Kearney and Merrill 2000). While these are important avenues for study, they do not address the content of the Court's opinions, which is the most significant means by which the Court contributes to legal and social policy. For example, the amicus brief filed by the American Civil Liberties Union in Craig v. Boren (1976) was instrumental in the Court's adoption of the intermediate scrutiny standard for evaluating gender discrimination claims (Campbell 2002). Such highly significant forms of influence would be missed by extant research that focuses on case outcomes, but can be captured using the content analysis techniques used in the current analysis.More broadly, this research is valuable in that it contributes to our understanding of how organized interests use language to shape public policy. Traditionally, interest group scholarship has focused on the ability of groups to affect policy outputs by focusing primarily on the presence or amount of lobbying activity (for a review, see Hojnacki et al. 2012). Although significant, this research has generally ignored the ability of interest groups to use language to influence the content of public policy. These techniques are ubiquitous across legal and political venues, and include proposing rules to bureaucratic agencies, submitting model statutes to legislatures, and filing legal briefs with judicial bodies. Here, we join a growing group of scholars in examining how interest groups leverage language in their advocacy efforts (e.g., Chien 2011; Klueuro ver 2009; Pedersen 2013).Third, this topic is important because it provides insight into how justices craft the content of their opinions.1 At the Supreme Court, the four primary sources of information presented to the justices are the opinions of the lower courts that initially handled the case, litigant briefs, amicus curiae briefs, and oral arguments (Stern et al. 2002). Although we have a fairly sophisticated understanding of why the justices integrate language from lower court opinions (Corley, Collins, and Calvin 2011), litigant briefs (Corley 2008), and oral arguments (Johnson 2004) into their opinions, research on the influence of amicus briefs on opinion content is more limited. …

Source Cues and Public Support for the Supreme Court

Abstract: It is well known that the public often relies on cues or heuristics when forming opinions. At the same time, leading theories of opinion formation about the Supreme Court see such support as relati...

The Law of Belligerent Occupation in the Supreme Court of Israel

Abstract: Since the 1967 War, in the course of which Israel occupied the West Bank and Gaza, the Supreme Court of Israel has considered thousands of petitions relating to acts of the military and other authorities in those territories (OT). This article reviews the contribution to the law of belligerent occupation of the Court’s jurisprudence in these cases. After discussing issues of jurisdiction and the applicable norms, the article reviews the way in which the Court has interpreted military needs, the welfare of the local population, changes in the local law, and use of resources; the attitude of the Court to the long-term nature of the occupation and the existence of Israeli settlements, settlers, and commuters in the OT; the introduction of a three-pronged test of proportionality in assessing military necessity; and hostilities in occupied territories. In the final section, I draw some general conclusions on the Court’s contribution to the law of occupation.

National Association for the Advancement of Colored People (NAACP)

Abstract: The National Association for the Advancement of Colored People (NAACP) is the longest operating civil rights organization in the United States. It was established in 1909 and continues into the twenty-first century fighting modern forms of racism. The NAACP is best known for arguing the US Supreme Court case Brown v. Board of Education of Topeka, decided on May 17, 1954, which legally desegregated schools in America. Working in conjunction with other organizations such as the Student Nonviolent Coordinating Committee and the Southern Christian Leadership Conference, the NAACP was a central tenet of the civil rights movement. It has provided both legal expertise in the constitutional battle for rights and the financial resources in the direct-action campaigns of the 1960s. Keywords: African American; civil rights; Du Bois, W. E. B; social movements and social change

Institutional Flip-Flops

Abstract: Many people vigorously defend particular institutional judgments on such issues as the filibuster, recess appointments, executive privilege, federalism, and the role of the courts. These judgments are defended publicly with great intensity and conviction, but some of them turn out to be exceedingly fragile, in the sense that their advocates are prepared to change their positions as soon as their ideological commitments cut in the other direction. For example, institutional flip-flops can be found when Democratic officials, fiercely protective of the filibuster when the President is a Republican, end up rejecting the filibuster when the President is a Democrat. Other flip-flops seem to occur when Supreme Court justices, generally insistent on the need for deference to the political process, show no such deference in particular contexts. Our primary explanation is that many institutional flip-flops are a product of “merits bias,” a form of motivated reasoning through which short-term political commitments make complex and controversial institutional judgments seem self-evident (thus rendering those judgments vulnerable when short-term political commitments cut the other way). We offer evidence to support the claim that merits bias plays a significant role. At the same time, many institutional judgments are essentially opportunistic and rhetorical, and others are a product of the need for compromise within multimember groups (including courts). Judges might join opinions with which they do not entirely agree, and the consequence can be a degree of institutional flip-flopping. Importantly, some apparent flip-flops are a result of learning, as, for example, when a period of experience with a powerful president, or a powerful Supreme Court, leads people to favor constraints. In principle, institutional flip-flops should be reduced or prevented through the adoption of some kind of veil of ignorance. But in the relevant contexts, the idea of a veil runs into severe normative, conceptual, and empirical problems, in part because the veil might deprive agents of indispensable information about the likely effects of institutional arrangements. We explore how these problems might be overcome.

Criminal Corruption: Why Broad Definitions of Bribery Make Things Worse

Abstract: Although the law of bribery may look profoundly under-inclusive, the push to expand it usually should be resisted. This article traces the history of two competing concepts of bribery — the “intent to influence” concept (a concept initially applied only to gifts given to judges) and the “illegal contract” concept. It argues that, if taken literally and applied to officials other than judges, “intent to influence” is now an unthinkable standard. The article defends the Supreme Court’s refusal to treat campaign contributions as bribes in the absence of an “explicit” quid pro quo and its refusal to read a statute criminalizing deprivations of “the intangible right of honest services” as scuttling the quid pro quo requirement. While recognizing that the “stream of benefits” metaphor can be compatible with this requirement, it cautions against allowing the requirement to degenerate into a “one hand washes the other” or “favoritism” standard. The article maintains that specific, ex ante regulations of the sort commonly found in ethical codes and campaign finance regulations provide a better way to limit corruption than bribery laws, but it warns that even these regulations should not prohibit all practices that may be the functional equivalent of bribery. The article concludes by speculating about whether the efforts of federal prosecutors to reduce corruption over the past 60 years have given us better government.

The Challenging Authority of the European Court of Human Rights: From Cold War Legal Diplomacy to the Brighton Declaration and Backlash

Abstract: This article examines the changing authority of the European Court of Human Rights (ECtHR) since its establishment in 1959. The first part focuses on the particular challenges the Cold War period posed for the Court and its constituencies. A second part considers the post-Cold War period in which the Court was fundamentally transformed from an ad hoc tribunal to becoming a permanent international Court for some 800 million Europeans. It argues that it was not until the mid- to late 1970s that the authority of the ECtHR expanded beyond a rather narrow group of litigants. The very limited case-load of the first fifteen years of operation made the Court of little or no importance to states other than those immediately involved in the scattered cases. Over time the ECtHR developed extensive authority, becoming a de facto supreme court of human rights in Europe. The European Court of Human Rights had a steady and growing business, and despite occasional counter-reactions to its expanding jurisprudence member states generally comply with its judgments. However, in recent years the European Court has come under repeated attack by new and old member alike, and especially the United Kingdom and Russia. It argues in conclusion that in recent years the authority of the Court has become increasingly uneven and partial and, in light of the 2012 Brighton Declaration, perhaps it has even started shrinking.

Letters of the Law: Race and the Fantasy of Colorblindness in American Law

Abstract: One of the hallmark features of the post-civil rights United States is the reign of colorblindness over national conversations about race and law. But how, precisely, should we understand this notion of colorblindness in the face of enduring racial hierarchy in American society? In Letters of the Law, Sora Han argues that colorblindness is a foundational fantasy of law that not only informs individual and collective ideas of race-but also structures the imaginative capacities of American legal interpretation. Han develops a critique of colorblindness by deconstructing the law's central doctrines on due process, citizenship, equality, punishment and individual liberty, in order to expose how racial slavery and the ongoing struggle for abolition continue to haunt the law's reliance on the fantasy of colorblindness. Letters of the Law provides highly original readings of iconic Supreme Court cases on racial inequality - spanning Japanese internment to affirmative action, policing to prisoner rights, Jim Crow segregation to sexual freedom. Han's analysis provides readers with new perspectives on many urgent social issues of our time, including mass incarceration, educational segregation, state intrusions on privacy, and neoliberal investments in citizenship. But more importantly, Han compels readers to reconsider how the diverse legacies of civil rights reform archived in American law might be rewritten as a heterogeneous practice of black freedom struggle.

Diffusing Disputes: The Public in the Private of Arbitration, the Private in Courts, and the Erasure of Rights

Abstract: Two developments frame this discussion: the demise of negotiated contracts as the predicate to enforcing arbitration obligations under the Federal Arbitration Act and the reorientation of court-based procedures to assimilate judges’ activities to those of other dispute resolution providers. From 1925 until the mid-1980s, obligations to arbitrate rested on consent. Thereafter, the U.S. Supreme Court shifted course and enforced court and class action waivers mandated when consumers purchased goods and employees applied for jobs. To explain the legitimacy of precluding court access for federal and state claims, the Court developed new rationales — that arbitration had procedural advantages over adjudication, and that arbitration was an effective enforcement mechanism to “vindicate” public rights. The result has been the mass production of arbitration clauses without a mass of arbitrations. Although hundreds of millions of consumers and employees are obliged to use arbitration as their remedy, almost none do so — rendering arbitration not a vindication but an unconstitutional evisceration of statutory and common law rights. The diffusion of disputes to a range of private, unknowable alternative adjudicators also violates the constitutional protections accorded to the public — endowed with the right to observe state-empowered decision makers as they impose binding outcomes on disputants. Closed processes preclude the public from assessing the qualities of what gains the force of law and debating what law ought to require. The cumulative effect of the Supreme Court’s jurisprudence on arbitration has been to produce an unconstitutional system that undermines both the legitimacy of arbitration and the functions of courts.

Foreword: The Supreme Court's Shadow Docket

Abstract: The 2013 Supreme Court Term provides an occasion to look beyond the Court’s merits cases to the Court’s shadow docket — a range of orders and summary decisions that defy its normal procedural regularity. I make two claims: First, many of the orders lack the transparency that we have come to appreciate in its merits cases. Some of those orders merit more explanation, and should make us skeptical of proposals to depersonalize the Court. Second, I address summary reversal orders in particular. As a general matter, the summary reversal has become a regular part of the Supreme Court’s practice. But the selection of cases for summary reversal remains a mystery. This mystery makes it difficult to tell whether the Court's selections are fair. I catalogue the Roberts Court’s summary reversals and suggest that they can be grouped into two main categories — a majority that are designed to enforce the Court’s supremacy over recalcitrant lower courts, and a minority that are more akin to ad hoc exercises of prerogative, or “lightning bolts.” The majority, the supremacy-enforcing ones, could be rendered fairer through identification of areas where lower-court willfulness currently goes unaddressed. We may simply be stuck with the lightning bolts.

Unanimity on Death with Dignity — Legalizing Physician-Assisted Dying in Canada

Abstract: In February 2015, the Supreme Court of Canada voted unanimously to legalize physician-assisted dying, arguing that prohibiting people from making decisions about their own death or bodily integrity deprives them of autonomy and infringes on their right to liberty.

The Limits of Legitimacy: Dissenting Opinions, Media Coverage, and Public Responses to Supreme Court Decisions

Abstract: When the U.S. Supreme Court announces a decision, reporters simplify and dramatize the complex legal issues by highlighting dissenting opinions and thus emphasizing conflict among the justices themselves. This often sensationalistic coverage fosters public controversy over specific rulings, despite polls which show that Americans strongly believe in the Court's legitimacy as an institution. In The Limits of Legitimacy, Michael A. Zilis illuminates this link between case law and public opinion. Drawing on a diverse array of sources and methods, he employs case studies of eminent domain decisions, analysis of survey data and media reporting, an experiment to test how volunteers respond to media messages, and finally the natural experiment of the controversy over the Affordable Care Act, popularly known as Obamacare. Zilis finds, first, that the media tends not to quote from majority opinions. However, the greater the division over a particular ruling among the justices themselves, the greater the likelihood that the media will criticize that ruling, characterize it as activist, and employ inflammatory rhetoric. Zilis then demonstrates that the media's portrayal of a decision, as much as the substance of the decision itself, influences citizens' reactions to and acceptance of it. This meticulously constructed study and its persuasively argued conclusion advance the understanding of the media, judicial politics, political institutions, and political behavior.

From SARS to Ebola: Legal and Ethical Considerations for Modern Quarantine

Abstract: Quarantine remains an important part of the strategy for containing infectious diseases, especially when there is no vaccine or demonstrably effective treatment. Experience with SARS and, more recently, Ebola indicate that quarantine is fraught with ethical challenges. In the United States, legislation authorizing quarantine has been enacted in every state, and these laws have been upheld by the Supreme Court. The problems have been in identifying when quarantine is necessary and in implementation. The following ethical principles should guide public health officials in deciding whether and how to impose a quarantine: (1) necessity, effectiveness, and scientific rationale; (2) proportionality and least infringement; (3) humane supportive services; and (4) public justification.

Polarizing the Electoral Connection: Partisan Representation in Supreme Court Confirmation Politics

Abstract: Do senators respond to the preferences of their state’s median voter or only to the preferences of their copartisans? We develop a method for estimating state-level public opinion broken down by partisanship so that scholars can distinguish between general and partisan responsiveness. We use this to study responsiveness in the context of Senate confirmation votes on Supreme Court nominees. We find that senators weight their partisan base far more heavily when casting such roll call votes. Indeed, when their state median voter and party median voter disagree, senators strongly favor the latter. This has significant implications for the study of legislative responsiveness and the role of public opinion in shaping the members of the nation’s highest court. The methodological approach we develop enables more nuanced analyses of public opinion and its effects, as well as more finely grained studies of legislative behavior and policy making.

Polarizing the Electoral Connection: Partisan Representation in Supreme Court Confirmation Politics

Abstract: Do senators respond to the preferences of their state's median voter or only to the preferences of their co-partisans? We develop a method for estimating state-level public opinion broken down by partisanship so that we can distinguish between general and partisan responsiveness. We use these estimates to study responsiveness in the context of Senate confirmation votes on Supreme Court nominees. We find that senators more heavily weight their partisan base when casting such roll call votes. Indeed, when their state median voter and party median voter disagree, senators strongly favor the latter. This has significant implications for the study of legislative responsiveness and the role of public opinion in shaping the members of the nation's highest court. The methodological approach we develop allows more nuanced analyses of public opinion and its effects, as well as more finely grained studies of legislative behavior and policy-making.

Three Tests for Practical Evaluation of Partisan Gerrymandering

Abstract: Since the United States Supreme Court’s Davis v. Bandemer ruling in 1986, partisan gerrymandering for statewide electoral advantage has been held to be justiciable. The existing Supreme Court standard, culminating in Vieth v. Jubelirer and LULAC v. Perry, holds that a test for gerrymandering should demonstrate both intents and effects, and that partisan gerrymandering may be recognizable by its asymmetry: for a given distribution of popular votes, if the parties switch places in popular vote, the numbers of seats will change in an unequal fashion. However, the asymmetry standard is only a broad statement of principle, and no analytical method for assessing asymmetry has yet been held by the Supreme Court to be manageable. This Article proposes three statistical tests to reliably assess asymmetry in state-level districting schemes: (a) an unrepresentative distortion in the number of seats won based on expectations from nationwide district characteristics; (b) a discrepancy in winning vote margins between the two parties; and (c) the construction of reliable wins for the party in charge of redistricting, as measured by either the difference between mean and median vote share, or an unusually even distribution of votes across districts. The first test relies on computer simulation to estimate appropriate levels of representation for a given level of popular vote, and provides a way to measure the effects of a gerrymander. The second and third tests, which evaluate intent, rely on well-established statistical principles, and can be carried out using a hand calculator without examination of maps or redistricting procedures. I apply these standards to a variety of districting schemes, starting from the original “Gerry-manderˮ of 1812 up to modern cases. In post-2010 Congressional elections, partisan gerrymandering in a handful of states generated effects that are larger than the total nationwide effect of population clustering. By applying these standards in two recent cases, I show that Arizona legislative districts (Harris v. Arizona Independent Redistricting Commission) fail to qualify as a partisan gerrymander, but Maryland’s Congressional districts (Shapiro v. McManus) do. I propose that an intents-and-effects standard based on these tests is robust enough to mitigate the need to demonstrate predominant partisan intent. The three statistical standards offered here add to the judge’s toolkit for rapidly and rigorously identifying the effects of redistricting.