‘Yeah but,no but’ – Pinnock and Powell in the Supreme Court

This note considers the Supreme Court decisions in Manchester CC v Pinnock and Hounslow LBC v Powell. It is argued that there are a number of remaining outstanding questions around proportionality, including: deference; section 89, Housing Act 1980; procedural issues; ‘publicness’; and the future landscape.     

DO LOWER COURTS ANTICIPATE CHANGES IN SUPREME COURT POLICIES?: A Few Empirical Notes

This paper takes advantage of the change from the Warren Supreme Court to the Burger Supreme Court to investigate a phenomenon not usually examined in judicial impact research—anticipatory reactions. The research question is whether and under what circumstances federal courts of appeals anticipate changes in policy by the Supreme Court. Changes in the citation of Warren Court civil liberties decisions from the Warren Court era to the early Burger Court era are used to evaluate this question. It is hypothesized that moves away from Warren Court decisions would be greatest for decisions which received minimal support on the Warren Court and for important or salient policies. Contrary to these expectations it was found that during the Burger Court era the number of citations of Warren Court decisions actually increased, the percentage of positive citations increased, and the increases were greatest for decisions receiving minimal voting support on the Warren Court and for decisions classified as important.     

Losing,but Accepting: Legitimacy,Positivity Theory,and the Symbols of Judicial Authority

How is it that the U.S. Supreme Court is capable of getting most citizens to accept rulings with which they disagree? This analysis addresses the role of the symbols of judicial authority and legitimacy—the robe, the gavel, the cathedral‐like court building—in contributing to this willingness of ordinary people to acquiesce to disagreeable court decisions. Using an experimental design and a nationally representative sample, we show that exposure to judicial symbols (1) strengthens the link between institutional support and acquiescence among those with relatively low prior awareness of the Supreme Court, (2) has differing effects depending upon levels of preexisting institutional support, and (3) severs the link between disappointment with a disagreeable Court decision and willingness to challenge the ruling. Since symbols influence citizens in ways that reinforce the legitimacy of courts, the connection between institutional attitudes and acquiescence posited by Legitimacy Theory is both supported and explained.     

Seasonal Affective Disorder: Clerk Training and the Success of Supreme Court Certiorari Petitions

We investigate why the Supreme Court grants a smaller percentage of cases at the first conference of each term compared to other conferences. According to received wisdom, Supreme Court law clerks are overly cautious at the beginning of their tenure because they receive only a brief amount of training. Reputational concerns motivate clerks to provide fewer recommendations to grant review in cert. pool memos written over the summer months. Using a random sample of petitions from the Blackmun Archives, we code case characteristics, clerk recommendation, and the Court's decision on cert. Nearest neighbor matching suggests clerks are 36 percent less likely to recommend grants in their early cert. pool memos. Because of this temporal discrepancy, petitions arriving over the summer have a 16 percent worse chance of being granted by the Court. This seasonal variation in access to the Court's docket imposes a legally irrelevant burden on litigants who have little control over the timing of their appeal.     

美国行政解释的司法审查标准——谢弗林案之后的发展

1984年,美国联邦最高法院通过判例确立了对行政机关的法律解释予以司法尊重的谢弗林原则。在之后二十多年里,这一原则经历了诸多发展变化,其核心是最高法院的法律解释方法。在对谢弗林案之后的相关判例和法官的法律解释方法进行考察的基础上,分析司法尊重标准对行政机关可能产生的影响以及行政机关和国会对此的回应,可以发现,行政和立法分支应当在法律解释和适用的过程中发挥更大的作用。     

A contractual model of the voting behavior of the supreme court: The role of the chief justice

Political scientists have long debated the role of the Supreme Court in public policymaking. Much of the debate has centered around the issue of judicial independence from political factors. Despite a rather extensive debate in the literature, the question of independence has rarely been subjected to systematic testing. This paper examines the role of the Chief Justice of the Supreme Court in linking decisions of the Court to the desires of Congress. Specifically, the paper focuses on the role of the Supreme Court Chief Justice as an agent of Congress that reacts to budgetary signals sent by the Congress. The resulting relationship between budgets allocated to the Court and decisions reached by the Court are analyzed from 1946 to 1988.     

Blurred vision: How supreme court FOIA opinions on invasion of privacy have missed the target of legislative intent

The framers of the Freedom of Information Act believed that in order to make informed decisions concerning self‐rule in the democracy, citizens needed access to government information. However, the law also acknowledges the importance of protecting privacy—two of the FOIA's exemptions allow federal agencies to withhold information that would invade the privacy of individuals. The purpose of this article is to explore the legal conflict between an individual's right to privacy and the public interest in disclosure of government information. In an examination of seven United States Supreme Court decisions on this subject, this article questions whether the Court has fairly balanced the conflicting values of access and privacy within the guidelines established by Congress in the FOIA.     

The Influence of Congressional Preferences on Legislative Overrides of Supreme Court Decisions

Studies of Court–Congress relations assume that Congress overrides Court decisions based on legislative preferences, but no empirical evidence supports this claim. Our first goal is to show that Congress is more likely to pass override legislation the further ideologically removed a decision is from pivotal legislative actors. Second, we seek to determine whether Congress rationally anticipates Court rejection of override legislation, avoiding legislation when the current Court is likely to strike it down. Third, most studies argue that Congress only overrides statutory decisions. We contend that Congress has an incentive to override all Court decisions with which it disagrees, regardless of their legal basis. Using data on congressional overrides of Supreme Court decisions between 1946 and 1990, we show that Congress overrides Court decisions with which it ideologically disagrees, is not less likely to override when it anticipates that the Court will reject override legislation, and acts on preferences regardless of the legal basis of a decision. We therefore empirically substantiate a core part of separation‐of‐powers models of Court–Congress relations, as well as speak to the relative power of Congress and the Court on the ultimate content of policy.     

Bad medicine: prescription drugs, preemption, and the potential for a no-fault fix

For decades, federal regulation of pharmaceutical drugs and medical devices has worked hand in hand with state tort claims to protect the health and safety of the American public. Now, a new trend toward preemption endangers this scheme. In recent years, the Supreme Court has given increasing deference to agency assertions about their preemptive authority and has found preemption in an increasing number of cases. In the process, the Supreme Court has preempted claims for medical device injuries and left claims for pharmaceutical harms in a precarious position. The elimination of common law claims for drug and device harms will leave holes in the FDA's regulatory scheme, endangering the health and safety of Americans. It will also prevent ordinary Americans from seeking compensation for their injuries--even those injuries caused by manufacturer malfeasance. This Article proposes that Congress create a no-fault compensation scheme for drugs and medical devices to close these gaps. Such a scheme could be both practical and politically possible, satisfying manufacturers, tort reformers, patients, and plaintiffs' lawyers alike.     

Does Chevron Matter?

In this article we evaluate whether the Supreme Court's much-discussed decision in Chevron v Natural Resources Defense Council (1984) signaled a lasting difference in how the justices decide administrative law cases, by comparing and testing the predictions of three distinct theories of Supreme Court behavior. The legal model predicts an increase in deference to administrative agencies. This prediction is shared by the jurisprudential regime model, which also predicts that the justices evaluate key case factors differently before and after Chevron . The attitudinal model predicts no change in the justices' behavior as a result of Chevron . Although we find that attitudes matter, the fact that we also find support for the legal and jurisprudential regime models undermines the assertion of the attitudinal model that law cannot explain Supreme Court votes on the merits.     

Critical Mass for Affirmative Action: Dispersing the Critical Cloud

The concept of critical mass has been invoked by social scientists and the Supreme Court in affirmative action decisions as a solution to problems related to underrepresentation of minority students in institutions of higher education. Little distinction is made by scholars between the Court's use of critical mass as a metaphor and its application in research as a mathematical concept. I use Agent‐Based Modeling—a simulation technique in which systems are modeled through repetitive interaction of autonomous decision‐making “agents” to observe the complex dynamics that emerge from interaction—to investigate the Supreme Court's conception of the relationship between student‐body composition and student isolation and stereotyping. Findings demonstrate that the relationship between student body representation and the educational outcomes of interest as detailed by the Court, specifically minority students' feeling of isolation and majority students' retention of negative stereotypes, does not exhibit a specific threshold or tipping point as we would expect from a system that has a critical mass at which sudden and sustainable change in the state of the system occurs. Simulations of student interactions show there is not one definable threshold or critical mass of minority students that achieves educational goals of reducing either the isolation felt by minority students or the negative stereotypes held by majority students about their minority peers. Instead, greater minority representation is consistently associated with better outcomes for students in all contexts.     

死刑控制与最高人民法院的功能定位

死刑控制与最高人民法院的关系是社会各界关注的热点问题。分析表明,2007年以来最高人民法院全面收回死刑复核权,对其自身造成了一系列影响;最高人民法院的内部结构与实际功能,由此发生了深刻变化。这些变化并不完全符合现代法治理念下最高人民法院的功能定位。未来应该在考虑政治与社会条件的基础上,有步骤地改造最高人民法院在死刑控制方面的工作职能与方式,以减轻最高人民法院不必要的工作负担与资源消耗,促进最高人民法院将更多的资源用于应对更加宏观、复杂的问题。     

Naming Names: The Impact of Supreme Court Opinion Attribution on Citizen Assessment of Policy Outcomes

The manner in which political institutions convey their policy outcomes can have important implications for how the public views institutions' policy decisions. This paper explores whether the way in which the U.S. Supreme Court communicates its policy decrees affects how favorably members of the public assess its decisions. Specifically, we investigate whether attributing a decision to the nation's High Court or to an individual justice influences the public's agreement with the Court's rulings. Using an experimental design, we find that when a Supreme Court outcome is ascribed to the institution as a whole, rather than to a particular justice, people are more apt to agree with the policy decision. We also find that identifying the gender of the opinion author affects public agreement under certain conditions. Our findings have important implications for how public support for institutional policymaking operates, as well as the dynamics of how the Supreme Court manages to accumulate and maintain public goodwill.     

Pulling Punches: Congressional Constraints on the Supreme Court's Constitutional Rulings, 1987–2000

To date, no study has found evidence that the U.S. Supreme Court is constrained by Congress in its constitutional decisions. We addressed the selection bias inherent in previous studies with a statute‐centered, rather than a case‐centered, analysis, following all congressional laws enacted between 1987 and 2000. We uncovered considerable congressional constraint in the Court's constitutional rulings. In particular, we found that the probability that the Rehnquist Court would strike a liberal congressional law rose between 47% and 288% as a result of the 1994 congressional elections, depending on the legislative model used.     

The Impact of Supreme Court Activity on the Judicial Agenda

When the Supreme Court takes action, it establishes national policy within an issue area. A traditional, legal view holds that the decisions of the Court settle questions of law and thereby close the door on future litigation, reducing the need for future attention to that issue. Alternatively, an emerging interest group perspective suggests the Court, in deciding cases, provides signals that encourage additional attention to particular issues. I examine these competing perspectives of what happens in the federal courts after Supreme Court decisions. My results indicate that while Supreme Court decisions generally settle areas of law in terms of overall litigation rates, they also introduce new information that leads to increases in the attention of judges and interest groups to those particular issues.     

Thirty Years of Social Science in Supreme Court Criminal Cases*

The Supreme Court early took note of extralegal, “social science” materials in Muller v. Oregon (1908), and a half-century later made specific reference to social science authorities in the famous footnote 11 of Brown v. Board of Education (1954). Since Brown, much has been written about the Supreme Court's use of social science research evidence, but there has been little systematic study of that use. Those writing on the subject commonly focus on areas of law such as jury size, where social science has been used, and have generally assumed that social science information has been utilized in Supreme Court decisions with increasing regularity. Surprisingly little is known, however, about either the justices' baseline use of social science authorities, or many other aspects of their uses of social science information. The focus here is on the citation of social science research evidence in a sample of 240 criminal cases decided during the 30 years between the Supreme Court's 1958 and 1987 Terms. The resulting portrait contributes to a fuller understanding of the justices' use of social science materials, and may ultimately help promote more effective utilization of social science research evidence in Supreme Court decisions.     

最高人民法院裁判、司法解释的法律地位

The decisions and the legislative interpretations of judicial interpretations of the Supreme Court of China can be considered as a part of Mainland China’s customary law, and carried by decisions and judicial interpretations. Customary law is the very source of its normal force and they are supposed to be an informal source of the law for they have the required characteristics for substantiating customary law. Accordingly, the legislative judicial interpretations and decisions of the Supreme Court that are qualified to be promulgated in the Gazette of the Supreme Court should be standardized by the requisites of customary law and have the quality supposed to be universally fair. Cao Shibing is a senior judge of the Supreme Court of China majoring in civil law, and he was awarded the doctorate of law by the Chinese Academy of Social Sciences. Till now, he has published an amount of academic works, for instance, On Anti-monopoly Law (1996), Resolve of the Problems in the Suretyship Law of China and its Prospect (2001), On Insolvency Law of China (2003), and his translated book in Chinese (1998) —The Death of Contract (originally written by Grant Gilmore in 1995).     

Justices,Political Actors,or Both: An Exploration of the Brandenburg Line Through the Regime Theory Lens

Regime theory seeks to explain decisions by the Supreme Court of the United States by noting that justices tend to decide cases in ways that align with the prevailing political ideology. The theory emerged from political science literature and has not been explored regarding communication law. This article tests regime theory against the progression of seven Supreme Court precedents that led to the threatening speech test established in Brandenburg v. Ohio. The test is traditionally viewed as the fruit of about a half-century of deliberate judicial evolution. The analysis found regime theory helped explain the Court's progression and decisions in this line of cases, but contained some notable weaknesses.     

Brief for bioethicists for privacy as amicus curiae supporting appellees

Amicus, an ad hoc group of philosophers, theologians, attorneys, and physicians, believe that adults should consult their doctor when making personal decisions. The doctor-patient relationship would be protected under the Constitution. In "Griswold v. Connecticut," the Supreme Court said that a state law which forbid married couples from using contraceptives was unconstitutional; that the couples should have a right to privacy. In "Roe," the Supreme Court recognized that a patient and her doctor should have privacy. In "Doe v. Bolton," the Supreme Court found that the State of Georgia was violating the patients' and physician's freedom. In "Planned Parenthood of Missouri v. Danforth," the Supreme Court said that a general informed consent provision was alright because it did not take away the abortion decision. The post- Roe state laws were ways to control doctors and patients so that a particular philosophical view could be imposed. The major question in Webster is whether personal decisions should be made by doctors and patients or the state. Both parties must agree to the decision. Section 188.205 of the Missouri law was before the Court in Webster. This section makes it illegal for public funds to be used to encourage a woman to have an abortion that wasn't necessary to save her life. There are medical conditions for which abortion is reasonable - Tay-Sachs disease, for instance. The child usually dies by 3 years of age. Without genetic screening, many at-risk couples would abort all pregnancies. 95% of all prenatal screenings are negative. State medical treatment decisions are arbitrary and impersonal. Having control over important personal decisions is necessary for freedom.     

Dissent,Legitimacy, and Public Support for Court Decisions: Evidence from a Survey‐Based Experiment

Scholars often argue that whereas unanimous rulings should boost public support for court decisions, dissents should fuel public opposition. Previous studies on public responses to U.S. Supreme Court decisions suggest that unanimity does in fact bolster support. However, a recent study has also found that dissents may increase support among opponents of a court decision by suggesting evidence of procedural justice. By examining how individuals react to dissents from the Supreme Court of Norway, this article is the first study outside the U.S. context of the public's reaction to unanimity and dissent. Breaking with the common notion of the negative effects of dissent on public support, the article shows that when the Supreme Court handles cases of higher political salience, the formulation of dissenting opinions can be a meaningful way of securing greater support for its policy outputs by suggesting evidence of procedural justice. Contrary to recent studies, however, this positive influence of dissent is irrespective of individuals' ex ante policy views.