Precedent, Parity, and Racial Discrimination: A Federal/State Comparison of the Impact of Brown v. Board of Education

Questions regarding Brown v. Board of Education 's short-term effect remain unanswered, particularly its comparative impact on federal district courts and state supreme courts. We test this through an analysis of racial discrimination cases in those venues in the twenty-year period bifurcated by the decision in May 1954. Our findings suggest that while federal district courts and state courts were similarly unresponsive to discrimination claims before that date, Brown exerted a significant impact on district court decisions but had little influence at the state level. Furthermore, a third pattern was found in federal appellate courts, where discrimination claims had a high likelihood of pro-minority decisions even before the Supreme Court directive.     

Litigant Status and Trial Court Appeal Mobilization

The advantages held by haves over have nots in litigation have long fascinated scholars, with a long line of research revealing that litigant status often affects litigant resources, experience, and chances of overall success from trial courts to appellate courts. What has received considerably less attention, however, is how this status affects the decision to appeal. Bringing a new perspective to this important area holding implications for the shape and content of the judicial hierarchy, this study analyzes the decision of the losing federal district court litigant to appeal to the US courts of appeals. Utilizing an original database containing a sample of federal district court civil cases decided between 2000 and 2004, the results indicate, as predicted, that litigant status differentials affect whether there will be an appeal. This influence is further magnified when conditioned upon the relative costs of the appeal. These findings provide one of the first detailed examinations of litigant status and appeals coming from US trial courts and, simultaneously, offer the first empirical evidence to date that business litigants, like previously known government parties, are advantaged over individuals when deciding whether to appeal.     

Affirmed: A Study of Criminal Appeals and Decision-Making Norms in a California Court of Appeal

The work of state intermediate appellate courts is often described as “correcting legal errors” and “supervising” trial courts. But what do these labels mean in practice? This article explores the intermediate appellate process through a study of criminal appeals in a California Court of Appeal. Part I describes the characteristics and dispositions of criminal appeals. Contrary to popular impression, a conviction was reversed in only about 5 percent of these appeals. To explain the low reversal rate, part II draws upon interviews with justices of the Court of Appeal to examine the institutional norms and perspectives guiding the court's decisions. The basic decision norms described by the justices are norms of affirmance: for example, the harmless error rule and the substantial evidence rule incline the court to affirm despite certain legal errors or factual questions. Moreover, the particularistic approach the court typically takes in its decision making apparently sensitizes it to the substantive characteristics prevailing in criminal appeals: the crimes are serious and there is little doubt about factual guilt. The low reversal rate and the analysis of the court's norms suggest that intermediate appellate review of criminal convictions is narrower and more constrained than the “error correction” and “supervision” labels imply. Part III explores the implications of the case study for appellate policy.     

The Influence of Administrative Law Judge and Political Appointee Decisions on Appellate Courts in National Labor Relations Board Cases

Scholars have long been simultaneously concerned with the factors that influence appellate court decision making and the level of deference that the courts allow for agencies. However, scholars have treated administrative agencies as unitary actors with a single level of decision making, but in reality agency decisions involve input from multiple actors within the agency. I argue that appellate courts rely more heavily on decisions made by actors in the bureaucracy with greater levels of expertise and who are less politically motivated as cues in their decision making. This theory is bolstered by legal precedent in the area of administrative law that suggests courts should more heavily rely on the expert judgment of administrative judges. Thus, as a result of their increased expertise, appearance of political neutrality, and institutional support, courts will be more reliant on decisions issued by administrative law judges (ALJs) than those issued by the political appointees as cues in their decision making. Using over 300 unfair labor practice decisions issued by the federal appeals courts on review of cases from the National Labor Relations Board (NLRB or Board), I develop a model of appeals court decision making in unfair labor practice cases as a function of the initial decision of the ALJ, the final order of the political appointees of the NLRB, case characteristics, the ideology of the deciding appeals court panel, Supreme Court influence, and economic factors. Though the ideology of the court plays a role in its decision making, cues from ALJ decision making and that of the Board weigh more heavily in appellate court outcomes. However, cues from ALJ decisions play the most consistent role in appellate court decision making, even in more difficult cases. This has important implications for agency strategy in courts and suggests that future research should consider the influence of lower‐level decision making over appellate court decision making in the area of administrative law.     

American State Supreme Court Justices, 1900-1970

What are the paths that lead to the state supreme court bench? If we can identify these paths, can we then determine that they produce distinctive patterns in a court3 decision making? Based on a study of 694 judges who sat on 16selected American state supreme courts between 1900 and 1970, this article finds that the appellate judiciary was drawn from a variety of legal and political backgrounds rather than from any single career line. The judges came from both non-elite and elite law schools. About half had no substantial lower court judicial experience. Over one-third had been public prosecutors, another third had held other elective political office, and only a small minority had practiced in multilawyer big-city law firms. The article reports changes over time in these and other judicial characteristics (such CIS age, turnover, political party affiliations) and describes interstate differences. Few significant statistical relationships are found, however, between the background characteristics of judges and selected characteristics of state supreme court opinions.     

Ley suprema y derechos humanos en méxico

In this essay I claim that human rights incorporated in the mexican legal order by means of the Constitution, internacional treaties, judicial decisions of federal courts and other legal sources, constitute the supreme criteria for qualifying the legitimacy of legal norms through a conventionality process that includes different stages.     

From the Law Reviews

Although Warth v. Seldin is carefully cast in procedural terms, its significance is substantive. The real meaning of the decision is that the U.S. Supreme Court is not prepared to read into the federal constitution a limitation on suburban zoning power like that which the New Jersey Supreme Court read into the state constitution in Mt. Laurel.¹ Warth is, thus, the Court's most recent rebuff of the varied efforts to use the fourteenth amendment as a weapon against the inegalitarian consequences of metropolitan fragmentation.¹ Those who see in the vague language of that amendment a remedy for every social ill are sure to condemn the Court's passivity in the face of that malady. Yet, there is, as Paul Freund once wrote, “a morality of morality.” The mere existence of a social ill does not authorize the courts to prescribe the cure.     

Court Discretion

All mention of specific types and dimensions of dangerous behavior, given by witnesses in testimony in 414 civil commitment hearings of allegedly dangerous mentally ill adults in one state, was recorded to see how such evidence affects court decision. A positive association between involuntary commitment and evidence of dangerous behavior as defined by appellate courts was found. Commitments increased with movement up a continuum of action and physical harm and with recency and recurrency. Much of the variance in involuntary commitment is explained by court concern with substantive justice.     

Preemption of local smoke-free air ordinances: the implications of judicial opinions for meeting national health objectives.

Elimination of state laws that preempt local antismoking ordinances is a national health objective. However, the tobacco industry and its supporters have continued to pursue state-level preemption of local tobacco control ordinances as part of an apparent strategy to avoid the diffusion of grassroots antismoking initiatives. And, an increasing number of challenges to local ordinances by the tobacco industry and persons supported by the tobacco industry are being decided in state supreme courts and courts of appeals. The outcomes of seemingly similar cases about the validity of local smoke-free air ordinances vary significantly by state. This paper examines the common and unique aspects of the decisions and the potential implications of court rulings on preemption for future state tobacco control efforts and achievement of national health objectives around the elimination of preemption. Using a search strategy developed for the Centers for Disease Control and Prevention's State Tobacco Activities Tracking and Evaluation (STATE) System, cases where a state or federal appellate level court made a finding on the validity of a local smoke-free air ordinance or regulation were identified in 19 states. In contrast to previous studies, we found that cases in approximately half of states were decided for local governments. We also found that across the states, courts were considering similar factors in their decisions including the extent to which: (1) the local government possessed the authority to pass the ordinance, (2) the ordinance conflicted with the state constitution, and (3) state statutes preempt the ordinance.     

State Courts, the U.S. Supreme Court, and the Protection of Civil Liberties

Advocates of federalism, both in the United States and elsewhere, often cite the potential for enhanced protection of individual civil liberties as an emerging rationale for a federal system dividing governmental responsibilities between central and regional governments and central and regional judiciaries. Echoing this, some judicial officials and scholars, confronting an increasingly conservative U.S. Supreme Court, have called for state supreme courts to use the state constitutional grounds to preserve and increase the protections of the Bill of Rights. Using event count analysis, we examine state search-and-seizure cases for 1981 to 1993 to ascertain under what circumstances state courts would use this opportunity to eliminate Supreme Court review. We find that the relative ideological position of the state supreme courts and the U.S. Supreme Court often prevents, or does away with the need for, liberal courts to use the adequate and independent state grounds doctrine to expand the rights of criminal defendants and that state supreme court justices react more predictably in the assertion of constitutional protection law than the general consensus suggests.     

In the Best Interests of an Indian Child: The Indian Child Welfare Act

Before passage of the Indian Child Welfare Act in 1978, state, private, and federal agencies systematically removed Indian children from their families and tribal communities, placing them with non‐Indian families with little appreciation for the detrimental impact that cultural deprivation would have on these children. State courts often ignored the sovereign authority of tribal courts with regard to their children, and were, more often than not, unwilling to acknowledge the importance of the perspective of the child's tribe and/or extended family members. With passage of the Indian Child Welfare Act in 1978, Congress imposed upon state child welfare practices substantive and procedural requirements to which state courts must adhere, most notably the mandate that state courts must now give primary consideration to the placement of Indian children within their extended families and tribal communities. In addition, federal law requires state courts to recognize tribal court authority and jurisdiction over tribal children. This article reviews the history of federal, state, and private practices that propelled Congress to pass the ICWA, the changes that have resulted from this vital legislation, and the challenges that face courts in ensuring that state courts meet these requirements.     

Protecting Childhood: Rights,Social Goals and the First Amendment in the Context of the Child Online Protection Act

In Dun & Bradstreet v. Greenmoss Builders, the Supreme Court of the United States reintroduced a subject matter test into libel law, holding that private figures defamed in the discussion of matters of private concern did not need to prove actual malice to collect punitive or presumed damages. The sweeping language of some of opinions, coupled with the Supreme Court's references to subject matter in subsequent cases, led to confusion over whether and how constitutional protections apply in private plaintiff-private issue cases. This article explores how lower federal and state appellate courts have interpreted Dun & Bradstreet and offers three alternate solutions to appropriately balance the First Amendment rights of defendants with the reputational interests of private plaintiffs in cases arising from the discussion of matters of private concern.     

Police GPS Surveillance on Vehicles and the Warrant Requirement: “For a While I’ve Been Watching You Steady”

The global positioning system (GPS) has become ubiquitous to modern American life. The system supplies direction for travel through navigation systems as well as employee monitoring capabilities (Rosenberg Washington Journal of Law, Technology, and Arts 6:143–154, 2010). Law Enforcement has also found GPS to be a valuable tool. The technology provides a relatively cheap and highly effective way to monitor a suspect’s movement. Depending on the device, travel data can be reported in real time or be retrieved from the implanted device at intervals (Shah Journal of Law, Technology, and Policy 2009:281–294, 2009). This paper will first explore the core foundational Fourth Amendment cases that shape the use of GPS devices by law enforcement. Next, the federal circuits and state supreme courts’ decisions that have addressed the use of GPS will be reviewed. Third, the case of U.S. v. Jones (2012), which was recently decided by the United States Supreme Court, will be examined. Last, the policy implications of the current legal landscape regarding the use of GPS by police will be discussed.     

Modelling appellate courts’ responses in motor injury disputes

Motor third-liability insurance is compulsory in the European Union. We examine the behaviour of Spanish appellate courts in the context of motor liability insurance and pay particular attention to four characterising features. Specifically, we investigate (1) how the appellate court interprets the rules for updating the financial compensation when the courts’ ruling is made in a different year to that in which the motor accident occurred; (2) the response of the appellate court when its legal medical evaluation differs from the court’s decision; (3) whether the appellate court modifies the criteria when the insurance company was not charged with interest for delaying payment in the first instance; (4) whether the fault allocated by trial courts is revised by the appellate court. We apply a multi-categorical selection mechanism to deal with samples that are potentially non-random. This allows us to separately consider the characteristics of victim’s and the insurer’s decisions to appeal. The results indicate that disputing agents have significantly different appeal functions, where insurers show a more effective and consistent behaviour than victims.     

Genuine Auto Parts v EPA: How to Challenge Agency Findings of Fact

Abstract

This article discusses how to challenge decisions of fact made by administrative agencies, based on a recent federal appellate decision in which a decision by the Environmental Protection Agency was overturned. In Genuine Auto Parts v EPA, the court concluded that the agency’s failure to address an important element of the matter made its decision “arbitrary and capricious” and “not supported by substantial evidence.” The article discusses the relationship between “arbitrary and capricious” and “not supported by substantial evidence” as independent grounds for overturning an agency decision and concludes that both require a challenge to the decision-making process, not a challenge to the substance of the agency decision and the both require a rational process so that an agency failure to articulate a reason for its decision can be grounds for reversal.     

Preserving the Law’s Coherence: Citizens United v. FEC and Stare Decisis

In addition to striking down the portions of the Bipartisan Campaign Reform Act that limited the amount of money corporations and unions could spend on independent expenditures, Citizens United v. FEC overturned two decisions of the Supreme Court of the United States, an action that stands in contrast to the principle of stare decisis. This article analyzes the discussions of stare decisis in the various Citizens United opinions and compares these discussions to existing scholarly debate on the proper role of stare decisis in constitutional law. It also examines citations and discussions of Citizens United in state supreme court and federal circuit court of appeals cases to analyze how the justices’ discussions of stare decisis in Citizens United have influenced lower courts. The article concludes that the Citizens United opinions that discussed stare decisis — particularly Justice Anthony Kennedy's majority opinion and Chief Justice John Roberts’ concurrence — are highly problematic for a number of reasons. The applications of stare decisis in the opinions were also flawed. Citizens United has thus made it even easier for lower courts to abandon stare decisis and overturn precedent.     

Treatment of procedural irregularities in Nigerian courts and the need for a principled approach: Yaki v Bagudu (2015) in retrospect

The courts are usually stuck in between the need to do substantial justice to litigants and the strict observance of procedural rules. The article considers this issue in Nigerian legal system using the Supreme Court’s decision in Yaki v Bagudu as a signpost. The article argues that the absence of any clear-cut guidelines on procedural irregularities often leads to legal uncertainty and unpredictability of results. Drawing on experiences from other jurisdictions, the article suggests a principled approach which distinguishes between irregularities affecting the substantive jurisdiction of courts and those which do not as a panacea.     

The Transmission of Legal Precedent Across the Australian State Supreme Courts Over the Twentieth Century

This article considers several possible determinants of the transmission of legal precedent across Australian state supreme courts over the course of the twentieth century. The study finds that that the transmission of legal precedent is higher between State supreme courts that are more physically proximate and between state supreme courts in which a majority of judges in both courts are appointed by conservative governments. The study further finds that having an intermediate trial court and providing appointments to the High Court of Australia are correlated with whether a state is a source of interstate citations or a cue sender.