Common Foreign and Security Policy: The Consequences of the Court's Extended Jurisdiction

Despite the explicit exclusion of its jurisdiction, the Court of Justice of the European Union exercises judicial control over Common Foreign and Security Policy (CFSP). This article examines and explains how the Court's extended jurisdiction contributes to the juridification, judicialisation and constitutionalisation of the EU's compound CFSP structures. It first lays the groundwork by explaining the link between constitutionalisation and democratic legitimation and setting out the Court's formal jurisdiction over CFSP under Article 40 Treaty on European Union and Articles 218(11) and 275(2) Treaty on the Functioning of the European Union. The centre piece of the article then identifies how the Court's jurisdiction has expanded since the entry into force of the Lisbon Treaty, points at additional ‘substantive’ avenues of judicial review on the basis of access to information and access to justice, and analyses the effects of the Court of Justice of the European Union's extended jurisdiction for CFSP.     

The Chickens Have Come Home To Roost: Individualism,Collectivism And Conflict In Commercial Speech Doctrine

The Supreme Court of the United States has spent more than two decades constructing its commercial speech doctrine but has failed to articulate a principled approach, which has created disarray in the definition and protection of commercial speech. Analysis of the Court's conception of commercial speech protection, using individualist and collectivist political philosophies, concludes that the Court's commercial speech doctrine has suffered from a fundamental internal conflict arising from the difficulty in choosing one or the other of those political philosophies. That conflict will continue-as will the Court's inability to express a coherent commercial speech doctrine-until the Court makes an overt choice between collectivist and individualist approaches to the protection of commercial speech. The principled solution is for the Court to adopt a strict scrutiny approach to commercial speech, thus giving it protection commensurate with that given ideological speech.     

How Does the European Court of Justice Reason? A Review Essay on the Legal Reasoning of the European Court of Justice

This review essay analyses two significant recent contributions to the debate over the reasoning of the Court of Justice (CJ). These contributions highlight the impossibility of a wholly scientific and deductive approach to attributing ‘correct’ outcomes to the Court's case‐law. At the same time, their analysis adds significant findings for the debate over the Court's possible ‘activist’ or political role. Following from these contributions, this essay makes two arguments: firstly, that the inability of the Court to anchor its reasoning solely in a deductive form of legal reasoning should encourage the CJ to engage in a more advanced ‘constitutional dialogue’ with the EU's political institutions; and secondly, that truly understanding the Court's reasoning involves a closer analysis of the institutional and personal dynamics influencing Court decisions. Understanding European judicial reasoning may require a closer look at the social and political—as well as doctrinal—context within which European judges act.     

Protecting Tobacco Advertising Under the Commercial Speech Doctrine: The Constitutional Impact of Lorillard Tobacco Co.

Since 1980, the Supreme Court has used a complex form of intermediate constitutional scrutiny-the Central Hudson analysis-when government regulations of commercial speech are challenged on First Amendment grounds. In Lorillard Tobacco Co. v. Reilly, the Court used this analysis for the first time to test the constitutionality of government restrictions on tobacco advertising. This article reviews the Court's commercial speech doctrine including previous treatment of governmental attempts to restrict harmful product advertising. The article then provides an overview of the national regulatory framework for tobacco advertising and analyzes the Supreme Court's 2001 opinion in Lorillard Tobacco. The article then explores the impact of the case on the Court's commercial speech doctrine and in subsequent lower court opinions.     

The Arendtian Dread: Courts with Power

Hannah Arendt was fearful not only of a populist President speaking in the name of the people and unbound by legality. She was also concerned that popular support could be harnessed by those responsible for limiting it. In other words, she was fearful of the American Supreme Court relying on popular support. This is the meaning of her obscure depiction of the American Supreme Court as “the true seat of authority in the American Republic” but unfit to power. I argue that Arendt's characterization of authority as requiring “neither coercion nor persuasion” means that the Court's source of legitimacy is expertise rather than public support. Yet the current dominant understanding among American Justices as well as scholars is that public support is the source of the Court's authority. In Arendt's mind, such an understanding means that the Court has become the seat of power. The corruption of the Court's authority and constitutional law as a language of expertise capable of resisting public opinion will inevitably follow.     

An Analysis of Policy‐Based Congressional Responses to the U.S. Supreme Court's Constitutional Decisions

While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy‐based responses to the Supreme Court's constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court's legal holding and the relationship between the proposal and the public policy associated with the Court's decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court's decisions but is limited in its ability to overcome the Court's legal rules.     

Text Matters: Some Reflections on the Forging of a New Constitutional Jurisprudence in South Africa

The South African Constitution establishes a constitutional democracy with a strong form of constitutional review. The Constitutional Court is required to declare invalid any legislation or conduct of the President which is inconsistent with the Constitution. The author, a former judge of the Constitutional Court, argues that the text of the Constitution has been an important determinant of the Court's jurisprudence, both in relation to the Court's jurisprudence concerning the institutional structures established by the Constitution and its Bill of Rights jurisprudence.     

Why Juvenile Courts Should Address Family Violence: Promising Practices to Improve Intervention Outcomes

The prevalence of domestic violence in juvenile court cases justifies modifying our interventions to reflect this unfortunate reality. This article focuses primarily on juvenile victimization of parents and the model programs emerging in juvenile courts to address it. Part I examines family violence's prevalence in the juvenile court caseloads, despite its lack of consideration in most dispositions. Part II begins with a comparative analysis of the drug court trend and discusses the trend's applicability for specialized family violence applications in the Juvenile Court. The King County (Wash.) Juvenile Court's Step‐Up Program is introduced, which directly addresses family violence with intervention programs for youth perpetrators and abused parents, followed by the Santa Clara County (Calif.) Juvenile Court's Family Violence program, shown as a model worthy of replication. Part III details the process by which the Travis County (Texas) Juvenile Court is implementing a program similar to these models. Part IV concludes that juvenile courts must address family violence as an overt or underlying issue in many cases and must identify and address the danger to our troubled youths, whether offender or victim. I argue that the domestic violence community's treatment expertise must inform our juvenile courts' interventions with violent, often insular, families. In Travis County, we are committed to learning as much as possible about youth resilience–to identify and treat battered and battering teens to prevent the inter‐generational cycle from repeating itself while making our homes, communities, and schools safe.     

Opinion Construction in the Roberts Court

The Supreme Court's main output is the decision on the merits. Little is known, however, about how such decisions are constructed. This article is one of the first to look at the way Supreme Court opinions are constructed by examining the impact of the core linguistic resources at the Court's disposal. It does so in a novel manner by measuring the Court's reliance on wording from parties’ merits filings, amicus briefs, and lower‐court opinions between the 2005 and 2014 terms. To accomplish this goal, the article compares language in over 13,000 documents in the Court's docket during this period with their respective majority opinions. The article then looks at the relative impact of parties’ briefs and filings, amicus curiae briefs, and lower‐court opinions on the Court's majority opinion language. This article provides both macro– and microlevel analyses by locating the relative effects of these linguistic resources on the Court's overall opinion language as well as by breaking these findings down by individual justice. In the aggregate, this article finds that, of the three resources analyzed, the Court tends to use language from parties’ merits briefs most frequently, then wording from lower‐court opinions, and the least from amicus briefs, but that differences in case level factors shift the relative utility of each of these three resources.     

Supreme Court Ruling Creates More Standing Room in the Already Heated Global Greenhouse Gas Movement

This article reviews the recent April 2, 2007 Supreme Court decision in the Massachusetts v. EPA, a highly important case regarding greenhouse gases. The case centered on the Court's review of EPA's denial of a petition to regulate greenhouse gas emissions from new motor vehicles. The Court required EPA to reconsider its denial. The Court found that. 1) the petitioners have standing to challenge EPA's denial of their petition; 2) the Court has the authority to review the denial of the petition; and 3) the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles. This article looks specifically at the Court's analysis of standing and jurisdiction by Justice Stevens, who wrote the Court's majority opinion, and two dissenting opinions by Justices Roberts and Scalia. Most interesting is how the closely divided Justices (5 to 4 decision) viewed, very differently, the issues regarding standing, the evidence that emissions from new motor vehicles are causing global warming and harm to Massachusetts, and the agency's judgment in denying the petition. Lastly, the article speculates on the impact of the decision and the current activities taking place at the state and regulated community level involving future regulation, litigation, and opportunities by various companies and coalitions to reduce greenhouse gas emissions. The article then presents five broad areas where companies that emit greenhouse gases should need to maintain or increase awareness to better position themselves in the global greenhouse gas movement.     

Northern Ireland Dimensions to the First Decade of the United Kingdom Supreme Court

This article focuses on the relationship between the United Kingdom Supreme Court and Northern Ireland over the course of a constitutionally significant period of time, namely the first decade of the Court's existence. It does this by exploring what difference the Court has made to the law of Northern Ireland, what significance the cases from Northern Ireland have had for the law in other parts of the United Kingdom, and what part has been played in the Court's work by the sole Justice from Northern Ireland, Lord Kerr of Tonaghmore, and by the Attorney General for Northern Ireland, John Larkin QC. It concludes that the Court has established itself as an indispensable component of the legal system of Northern Ireland.     

Lawyers' Perceptions of the U.S. Supreme Court: Is the Court a “Political” Institution?

Do legal elites—lawyers admitted to federal appellate bars—perceive the Supreme Court as a “political” institution? Legal elites differentiate themselves from the mass public in the amount and sources of information about the Court. They also hold near‐universal perceptions of Court legitimacy, a result we use to derive competing theoretical expectations regarding the impact of ideological disagreement on various Court perceptions. Survey data show that many legal elites perceive the Court as political in its decision making, while a minority perceive the Court as activist and influenced by external political forces. Ideological disagreement with the Court's outputs significantly elevates political perceptions of decision making, while it exhibits a null and moderate impact on perceptions of activism and external political influence, respectively. To justify negative affect derived from ideological disagreement, elites highlight the political aspects of the Court's decision making rather than engage in “global delegitimization” of the institution itself.     

U.S. Army Corps of Engineers v. Hawkes Co.: Supreme Court Expands Rights of Regulated Parties to Challenge Agency Decisions

This article analyzes the potential impacts of the Supreme Court's recent decision in U.S. Army Corps of Engineers v. Hawkes Co. Prior to this decision, federal agency action that merely provided information could not be challenged because of the Administrative Procedure Act allowed parties to challenge only “final agency action.” The Court recognized that some actions that merely provide information can be final because they have legal consequences. To understand the extent to which the Hawkes decision expands the right to challenge agency action, the article compares the Hawkes decision with the Court's decision in Sackett v. Environmental Protection Agency, where the Court also discussed the issue of “final agency action.” The article concludes that the Court's reasoning regarding what type of consequences make an action “final” is the key to understanding what regulatory action can now be challenged.     

Content and Viewpoint Discrimination: Malleable Terms Beget Malleable Doctrine

Recent scholarship has demonstrated that the Supreme Court of the United States has defined poorly and inconsistently applied two core First Amendment concepts-content and viewpoint discrimination. This article systematically explores the malleability of the Court's speech discrimination principles. Using data from The Supreme Court Compendium that categorize the ideological voting behavior of justices on the Court, the article studies decisions in three socially divisive areas of law in which content and viewpoint discrimination have been central issues of significant cases. Analysis shows that the Court's weak definitions and inconsistent applications leave the content and viewpoint concepts especially ripe for manipulation. The article concludes, therefore, by suggesting a new method of analysis that would offer more consistency.     

Fraud by Abuse of Position and Unlicensed Gangmasters

This article analyses the Court of Appeal's interpretation of the fraud by abuse of position offence in R v Valujevs. Two issues are explored: first, the Court's welcome clarification of the meaning of a relevant ‘expectation’; second, the inadequacy of the Court's reasoning in deciding that an unlicensed gangmaster ‘is expected to safeguard, or not to act against, the financial interests’ of his workers.     

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.     

Game of courts: A tale of principles and institutions

The ontological, terminological and conceptual confusion that surrounds the concept of ‘general principles of European Union law’ is far from being resolved. The constitutional interlocutors—the Court of Justice of the European Union and the highest courts in Member States—have at times fiercely argued about their different understanding of general principles, whereas European legal scholarship has failed to convincingly clarify the intricacies surrounding this source of law. Instead of engaging with a more abstract, theoretical question of what general principles are, this paper reflects on the practical, functionalist question: how are they used by the Court of Justice and what are some of their functions and implications? To do so, it enquires into contextual, institutional and strategic features of the Court's behaviour and jurisprudence and responses of the highest national judiciaries to this jurisprudence. The aim is to offer an alternative account of the Court's jurisprudence on general principles.     

国际法院解释领土条约的路径、方法及其拓展

领土主权属于一国的根本问题。由于部分领土条约相关条款过于原则或模糊不清,当事方会产生条约解释上的国际争端。通常,国际法院依据《维也纳条约法公约》第31、32条规定的解释规则进行阐释。但是,领土条约具有与一般条约不同的特性,这一特性也决定了其解释方法的特殊性。条约解释与争议领土主权的归属存在密切关系,不当解释会严重损害当事国的领土主权。正是出于此顾虑,国际法院过于严格遵照条约文本语言表述的精确性,但在司法实践中又出现一定的矛盾与反复,甚至在个案中弱化条约解释的价值,转而以有效统治作为判案的法理依据。国际法院的做法动摇了国际社会相关当事方将领土争端提交国际法院,采取法律方式解决纠纷的信心,值得关注和深入研究。     

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.