Employer Liability for Employee Sexual Harassment: A Judicial Policy-Making Study

Since 1964 and 1972 when Congress passed key legislation concerning sex discrimination, the courts have been left to fashion policies on sexual harassment in employment. In 1998, the Supreme Court issued four major decisions in this area, one dealing with suits against school districts, one involving same-sex discrimination, and two pertaining to the application of common law to employer liability in sexual harassment cases. The ruling in the first case is at odds with the others, suggesting that Congress may need to intervene. The other three pose a series of complex issues that could benefit from congressional action and administrative guidance from the Equal Employment Opportunity Commission. The Court's rulings have answered some legal questions, but posed others that will produce extensive litigation in coming years.     

Which States Will Restrict Abortions? Predictions from Votes in the House of Representatives

In response to the Supreme Court's rulings in Webster v. Reproductive Services and Planned Parenthood of Southeastern Pennsylvania v. Casey, which increased the ability of states to restrict abortions, many state legislatures have reexamined their abortion policies. Several recent studies use a variety of methods to predict whether states will restrict abortion access. These studies have utilized congressional votes on abortion legislation, past state laws restricting abortions, or current attitudes by state legislators and governors. Each method has its merits and limitations. This paper uses recent votes in the states' House of Representatives pertaining to abortion issues to predict the likelihood of significant abortion restrictions. These results are compared with rankings from other recent studies.     

"An Innate Sense of Fairness": State Responses to the U.S. Supreme Court's Sovereign Immunity Decisions

The U.S. Supreme Court's recent revival of state sovereign immunityis usually cited as a significant development in modern U.S.federalism. These decisions giving states a powerful defenseagainst lawsuits lead to the question: How will the states reactto the Court's rulings? How likely is it that states will consentto be sued? This article discusses the consequences of the Court'ssovereign immunity rulings specifically concerning state legislativedebates over immunity waiver bills. It explains why some stateshave been willing to waive immunity, despite the Court majority'sfears of a flood of lawsuits if states did not enjoy immunity.     

Consequences of the Rehnquist Court's Federalism Decisions for Congressional Lawmaking

Scholars generally agree on the doctrinal significance of theRehnquist Court's post-1990 federalism decisions, but thereis less agreement about the consequences of these decisions.A previous study examined the direct consequences of these decisions,by inquiring into the extent to which Congress was able to reviseand reenact statutes that were struck down by the Court, butit left unexamined the effects on Congress's ability to legislatein other areas. This article assesses the indirect consequencesof these decisions by tracing their effects on the draftingof and debate over bills other than the ones directly invalidatedby the Court. It turns out that these decisions have had onlya limited effect on Congress's ability to draft constitutionallyacceptable legislation, but they have had an important effecton the debate over the passage of several pieces of legislation,whether by handing opponents arguments to oppose the bills orby providing members of Congress with means to explain volesthat would otherwise be difficult to defend.     

The European Court of Justice as a Federator

The European Court of Justice is often seen as the motor ofEuropean legal integration because it "constitutionalized "the treaties establishing the European Communities (EC) throughits jurisprudence. In reality though, the Court's role has ratherbeen that of a promotor or provocateur because the member statesand the national courts have been, by and large, cooperativepartners in this process, and many of the political consequencesof the Court's rulings have been hidden in its legal language.The Court will likely be careful in the future about continuingits judicial activism with the same vigor. Since the Treatyon European Union, many politically divisive issues are potentiallyopen to the Court's interpretation. In addition, the cooperativeattitude, by member states and the national courts, is no longerguaranteed.     

State Taxation of Interstate Sales: Enforcement Problems and Prospects

In their search for additional revenues, state governments in recent years have turned greater attention to collection of use taxes. Growth in interstate mail order sales has vastly increased the potential yield from use taxes, but Supreme Court decisions have limited the ability of states to effectively collect the tax. States have attempted to overcome enforcement barriers by joining in interstate use tax compliance compacts, and promoting congressional legislation to overcome constitutional prohibitions.     

REPRESENTATION, REAPPORTIONMENT, AND THE SUPREME COURT

Abstract. The reapportionment of congressional and state legislative districts occasioned by decennial censuses has generated intense political and judicial conflict. This conflict has made clearer several obstacles to a deeper understanding of the nature of representation. It has also led to the fashioning of a new equal protection jurisprudence by the Supreme Court in an attempt to grapple with apportionment disputes. The Court has established clear standards for redistricting congressional and state legislative seats. Yet after two decades, the Court has still not produced judicially manageable standards to deal with the problems of partisan gerrymandering, affirmative gerrymandering,'political fairness', and the Court's impact on public policy. A review of the pertinent cases makes it possible to forecast the probable outcome of litigation involving these issues in the 1980 round of reapportionments.     

The Separation of Powers, Court Curbing, and Judicial Legitimacy

A major focus of judicial politics research has been the extent to which ideological divergence between the Court and Congress can explain variation in Supreme Court decision making. However, conflicting theoretical and empirical findings have given rise to a significant discrepancy in the scholarship. Building on evidence from interviews with Supreme Court justices and former law clerks, I develop a formal model of judicial-congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court. An original dataset identifying all Court-curbing legislation proposed between 1877 and 2006 is then used to assess the influence of congressional hostility on the Court's use of judicial review. The evidence indicates that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self-restraint. When Congress is hostile, the Court uses judicial review to invalidate Acts of Congress less frequently than when Congress is not hostile towards the Court.     

Congressional Dominance and the International Trade Commission

This study examines the unfair trade decisions of the InternationalTrade Commission (ITC) and how they have been affected by Congress.It begins by identifying the means Congress can use to influenceITC decisions and then estimates both the extent to which thesemeans have been used and the extent to which they have shaped theITC's behavior. The study reaches two conclusions. First, Congresshas tried to shape the ITC's behavior, but it has not tried tomicromanage this behavior. Second, while the ITC's behavior hasbeen influenced by Congress, congressional influence is not asimportant as other factors, such as statutory criteria.     

Federal Preemption and State Regulation of Transportation and Telecommunications

Transportation and telecommunications are two of the most importantinfrastructural industries in the American economy. As theseindustries are so vital and because they exhibit characteristicsthat have frequently rendered them quasi-monopolistic, theirgrowth has been accompanied by state and federal regulation.We document how the imposition of regulation has led to continualconflicts over the extent to which federal regulation shouldtake precedence over state regulation. We illustrate how thejustifications for federal preemption have been applied notonly to the regulation, but also to the recent deregulation,of railroads, trucking, and telecommunications. We contend thatpolitical factors, such as congressional support, precedent-settingcourt rulings, and, most important, political pressure fromaffected interest groups that is related to the revenues stillgenerated within states by these industries, ultimately determinethe form of preemption that emerges from the Congress.     

Constitutional background to the Social Security Act of 1935

In June 1937, the Senate Judiciary Committee reported unfavorably on Roosevelt's Court-packing plan and the bill was effectively killed. In the same month, Justice Van Devanter retired and gave Roosevelt his first opportunity to make an appointment to the Supreme Court. Over the following 6 years, Roosevelt made seven more appointments to the Court, and in the years that followed the Court continued in the direction boldly advanced in the spring of 1937. A residual effect of the taxing-spending construction of the old-age insurance provisions of the Social Security Act of 1935 has been the Court's continued adherence to the view that social security programs consist of separate taxing and spending provisions and are not, constitutionally speaking, social insurance programs. The issue has arisen in both a due process context and an equal protection context. But it is unlikely that the decisions reached in these contexts would have been different had the old-age insurance program been drafted as an earned-benefits program pursuant to the commerce power. Of course, the Court's decisions in the social security cases represented a significant constitutional development in establishing the breadth of Congress' powers to tax and spend for the general welfare. The decisions not only cleared the way for other general welfare programs, but more fundamentally provided the Federal Government with the substantive power and institutional flexibility to respond to the changing needs of the Nation.     

Redistricting, Candidate Entry, and the Politics of Nineteenth-Century U.S. House Elections

The effects of redistricting on candidate entry patterns in contemporary House races has received growing attention in the scholarly literature, yet virtually no consideration has been given to this question in the context of historical elections. This is unfortunate as the wider variation in congressional redistricting during the nineteenth century gives us increased leverage in terms of understanding strategic candidate behavior. Utilizing a new dataset of candidate quality for nineteenth-century House races, we examine whether candidates with prior electoral experience are more likely to run in districts that are altered during the redistricting process, and provide an account of how differences in the prevalence of redistricting may affect strategic entry decisions of politicians. Our results suggest that entry decisions and electoral outcomes are affected by redistricting in this era. Moreover, our analysis provides an opportunity to use history to test contemporary theories of congressional elections in a broader context .     

Regulatory Reform in the 104th Congress: Revolution or Evolution?

This article examines the regulatory reform efforts of the 104thCongress. The focus is on congressional efforts to (1) relaxregulations, (2) shift responsibilities to the states, and (3)scrutinize new regulations. Analysis of legislation in eachof these three areas is followed by consideration of whetherthe laws that have been and will be enacted during the 104thCongress are truly revolutionary, or whether such laws representthe continual evolution of relations between the federal governmenton the one hand and the states, localities, and private sectoron the other.     

Guess What Happened on the Way to Revolution? Precursors to the Supreme Court's Federalism Revolution

In recent years, the Rehnquist Court has been accused of usheringin a "federalism revolution." The Court's decisions have beencontentious and often viewed as assertions of the Court's anti-majoritarianpower. However, these assessments misunderstand the role ofthe Court in the American political system. Not only are theCourt's recent decisions relatively modest departures from existingconstitutional doctrine, but its rediscovery of federalism follows,rather than leads, developments in the elected branches. Effortsto rehabilitate federalism as a political value began in theelected branches as early as the 1960s. By 1980, federalismhad become an important cleavage issue between the parties;Republicans advocated a form of "fixed federalism" while Democratsadvocated a form of "flexible federalism." Despite the desireof the Reagan and Bush administrations to use the judiciaryto advance the GOP's view of federalism, confirmation hearingsfor members of the Rehnquist Court demonstrate that Democratsin Congress paid little attention to federalism. Attitudes aboutfederalism thus made their way onto the Court without noticeand without challenge, and the sharp disagreements that emergedon the Court during the late-1990s mirror the same party cleavagesthat developed much earlier in the elected branches.     

The Rehnquist Court and Federal Preemption: In Search of a Theory

In the 1980s, the U. S. Supreme Court was expected to becomemore solicitous of "states' rights" and to reconsider doctrinesof federal preemption of state and local laws. Those expectationswere built on the Court's ruling in National League of Citiesv. Usery and reinforced by the Reagan administration's rhetoricand Court appointments. The record ofthe Rehnquist Court, however,demonstrates that it has backed away from vigorously enforcingthe Tenth Amendment and has erected only minor constitutionalbarriers, as in New York v. United States, to the Congress'power over the states. Moreover, the Court has not retreatedfrom finding implied statutory preemptions or from imposingits own dormant-commerce clause power on the states. The articleconcludes by considering a number of explanations for the Court'srecord and rulings on federal preemption.     

Privacy as Autonomy vs. Privacy as Familial Attachment: A Conceptual Approach to Right to Privacy Cases

This article explains why the Supreme Court's privacy jurisprudence has become deeply problematic for addressing emerging reproductive and sexual choice issues, focusing on abortion funding, minors seeking abortions, adults engaging in consenting homosexual sex, and pregnant women accused of abusing their fetuses. The article makes two arguments. First, it contends that what is private about the rights asserted in cases like Eisenstadt v. Baird and Roe v. Wade has never been fully articulated nor defended, leaving these central decisions conceptually unpersuasive. Second, the article shows that "privacy" is used in two very different senses in Supreme Court constitutional right-to-privacy decisions: one rooted in respect for marriage and the family, the other in notions of personal autonomy. Although both senses deserve to be protected, the court has tended to prefer the familial sense of privacy to the autonomy one, with serious consequences for privacy concerns that are not connected to family relationships or that are perceived as undercutting "family values."     

Congress, the Deficit, and Budget Reconciliation

President Clinton's veto of the 1995 reconciliation bill, the largest and most ambitious such legislation ever passed by Congress, was the first time a reconciliation bill was ever rejected by a president. It was also the first reconciliation bill in two decades to include a tax reduction rather than a tax increase. The fate of this bill, and its scope and contents, suggest the need to assess the evolution of reconciliation within the congressional budget process. In the early 1980s, Congress altered budget reconciliation procedures, putting in place a powerful new capability for deficit reduction. Reconciliation became the primary means within the budget process of restraining entitlement spending and increasing taxes as part of congressional efforts to reduce the deficit. Gramm-Rudman-Hollings magnified certain problems Congress encountered in using reconciliation to control entitlements, producing increased pressure to cut discretionary spending. While the Budget Enforcement Act of 1990 included new authority to use reconciliation to restrain entitlements, congressional spending priorities combined with the Peace Dividend to maintain the relative sanctuary entitlement programs have enjoyed. The limits of reconciliation as a deficit reduction tool, both in terms of increasing revenues and curtailing entitlements, are detailed. The inherent procedural advantages accorded to entitlements are contrasted with the treatment of discretionary programs, explaining in part the widening gulf between these two categories of spending. Congress has attempted, without success, to find alternatives to reconciliation. The failure of the seven-year, deficit-eliminating reconciliation bill of 1995 may indicate that certain Limits on the use of reconciliation may have been reached.     

Federal Preemption of State Regulation of Insurance: End of a 200-Year Era?

This article examines state regulation of insurance, focusingon congressional and judicial attempts to displace state regulatoryprimacy over insurance. After describing the early period ofstate insurance regulation from the U.S. Supreme Court's decisionin Paul v. Virginia to the Court's overruling of that decision,the article examines the McCarran-Ferguson Act and the post-McCarranenvironment, including examples of judicial preemption of stateinsurance laws. Finally, the article considers the system ofinsurance regulation envisioned in H.R. 1290, the most recentcongressional attempt to displace state insurance regulation,and state initiatives to counter federal regulation. AlthoughH.R.1290 purports to setup a dual regulatory scheme, the broadpreemption language in the bill would allow federal regulatorsto preempt virtually all state insurance laws. Moreover, thedecisions of the Supreme Court in Garcia v. San Antonio MetropolitanTransit Authority and Chevron v. Natural Resources Defense Councilwould leave no political or judicial forum for states to debatethe extent and impact of federal preemption     

Evaluating congressional reform: Deregulation revisited

An evaluation of the changes in Congress's structure that occurred in the 1970s requires attention to three dimensions of its performance as a policymaking institution: representation of interests, deliberation, and conflict resolution. Considered this way, the changes seem to have enhanced some aspects of congressional capacity (especially the representation of broadly-based interests) but to have diminished others (especially deliberation and conflict resolution on issues that are salient to mass constituencies). The resulting strengths and weaknesses help to explain differences in congressional performance on trucking deregulation and natural gas deregulation in the late 1970s and early 1980s. To some degree, they have altered the opportunities, strategic considerations, and central skills for policy analysts who seek to influence congressional decisions.     

Supreme Court Legitimacy and Group-Centric Forces: Black Support for Capital Punishment and Affirmative Action

The Supreme Court has addressed capital punishment and affirmative action many times and, as a result, has had sweeping policymaking effects. For that reason, we argue that black opinion on capital punishment and affirmative action will be shaped by diffuse support for the Court. We also recognize the important role of group-centric forces in shaping black opinion. We find that diffuse support for the Court leads blacks with lower levels of race consciousness to be more supportive of capital punishment and less supportive of affirmative action, positions in line with the Court's decisions on these issues but contrary to black interests. The Court, however, is not able to throw its cloak of legitimacy around its policy position for blacks with the highest levels of group consciousness.