The Supreme Court and the Social Conception of Abortion

Skeptics of Supreme Court power have pointed to abortion policy as an example of surprising limits on the justices' power to change society. I argue, however, that the Court's ruling in Roe v. Wade played a critical role in transforming how Americans think and talk about abortion. I develop an account of the development of the social conception of abortion from a critical reading of twentieth century American journalism and then test some predictions of that account through the use of quantitative content analyses. I conclude by discussing some implications for the study of judicial politics and public constitutionalism.     

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.     

Interpreting Statutory Purpose – Lessons from Yemshaw v Hounslow London Borough Council

Yemshaw v Hounslow LBC is a significant case in the fields of housing and family law, as well as giving rise to important issues as to the judicial role and statutory interpretation more broadly. This note critically analyses the reasoning of the Supreme Court in Yemshaw, in which the principal issue was whether the definition of ‘violence’ for the purposes of the Housing Act 1996 extended to non‐physical as well as physical forms of harm. In rejecting the view of the Court of Appeal, the Supreme Court adopted a wider definition of violence to encompass emotional and psychological as well as financial abuse. This commentary adopts a fresh stance by examining closely the context surrounding the enactment of the Housing Act 1996 and how this informs the question of statutory interpretation. In so doing, the author suggests that the interpretation employed by the court is significantly undermined.     

Koushal v Naz: Judges Vote to Recriminalise Homosexuality

In Koushal v Naz the Indian Supreme Court overturned a High Court judgment which had declared unconstitutional section 377 of the Indian Penal Code criminalising ‘carnal intercourse against the order of nature’. In doing so, it has rebranded gay and transgendered Indians as criminals. This case note explores some of the structural problems that led to this judgment. The first problem is the transformation of the Indian Supreme Court into a populist, quasi‐legislative, institution that sees itself as a tool of governance. This has put significant pressure on its counter‐majoritarian role. The second relates to the sheer size of the Court's docket (given its wide jurisdiction and lax standing rules), coupled with the Indian legal academy's inability and unwillingness to continuously demand judicial fidelity to the law. These factors have led to the normalisation of unreasoned or poorly‐reasoned judgments and a breakdown of stare decisis.     

Black Spiders Weaving Webs: The Constitutional Implications of Executive Veto of Tribunal Determinations

In R (Evans) v Attorney General, the Supreme Court quashed the Attorney General's statutory veto of the Upper Tribunal's original determination made under freedom of information legislation. The Upper Tribunal had held that so‐called ‘advocacy’ memos should be published after a full hearing on the merits. The Supreme Court split five to two, with the lead judgment of Lord Neuberger using constitutional rather than administrative language and focusing on the rule of law. This note raises four objections to the lead judgment. First, it argues that the Upper Tribunal was acting in an executive not judicial capacity and the veto was not therefore a breach of the rule of law. Secondly it suggests the veto clause is best understood as a variant Henry VIII clause. Thirdly, it suggests Lord Neuberger's judgment is founded on a paradox. Finally, it argues that the judgment undermines parliamentary sovereignty. Future implications are then considered.     

Fair Share Housing for Managed Growth

The Mt. Laurel decision represents the culmination of judicial thinking in exclusionary zoning type litigation. Implicit in decisions striking down local land use controls found to be “exclusionary” in nature has been the notion that a community has a legal duty to accept a “fair share” of the housing needs of the region. Fair share housing now begins to take on some substance with the New Jersey court's decision. Similar language on responsibilities for regional needs may be found in the Pennsylvania Supreme Court decisions in Kit-Mar and Girsh, and in the federal district court's opinion in Petaluma.     

最高人民法院关于无效行政行为的探索

最高人民法院从司法审查引发出对无效行政行为制度的探索,虽没有使用“自始没有任何法律效力”和“无效”等概念,却在民事诉讼领域形成了有关基础行为的构成要件,在对行政行为的司法审查中形成了重大明显瑕疵的类型化和明显性判断标准,并形成了排除具有重大明显瑕疵行政行为公定力、相对人拘束力和司法强制执行力的无效行政行为制度雏形,为我国今后立法积累了丰富的素材。从最高人民法院的探索轨迹及其重大明显瑕疵的类型化,可以发现无效行政行为规则的鲜明中国特色,司法的制度生成意义和生成机制。     

Mavericks or misconstruction? A reply to Campbell and Allan

In a jurisdiction without a codified constitution clearly demarcating the role of the courts, and given the centrality of the principle of parliamentary sovereignty to the United Kingdom's constitutional framework, criticism of the courts for overstepping the mark – particularly in politically contentious cases – is par for the course. In their 2019 article, Professors David Campbell and James Allan offer a criticism of the Supreme Court for what they describe as its surreptitious creation of judicial supremacy at the expense of parliamentary sovereignty. In support of their claim, the authors examine two particularly significant judgments: R (Miller and another) v. Secretary of State for Exiting the European Union and Re Northern Ireland Human Rights Commission's Application for Judicial Review. This reply discusses several problematic aspects of the authors’ critique of those judgments, demonstrating that, contrary to the authors’ claims, these cases do not provide evidence of a surreptitious attempt by the Supreme Court to expand its power.     

“Executing the Powers With Which it is Intrusted”: Justifications,Definitions and Limitations of Government Speech

Federal, state and local governments have realized that an effective way to counter an undesirable private message is to swallow it up within the government's own speech. So far, the Supreme Court of the United States has acquiesced, including its February 2009 opinion in Pleasant Grove City v. Summum. This article explores the roots, definition and limits of government speech through a close examination of not only Summum but two other recent Supreme Court opinions granting the government a right to communicate even when others contend that the speech conflicts with their own messages. The article concludes that the government speech doctrine needs further explanation with regard to its justification and contours. The rational basis test and political process may not be sufficient to contain government speech within desirable bounds; instead, government speech should be subjected to judicial scrutiny to ensure it remains germane and proportional.     

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.     

Reforming the Criminal Evidence System in China

Since 1997, China has proposed to reform the judicial system. In 2007, China officially set its goal of judicial reform as to “establish a Socialist Judicial System with fairness, efficiency and authority”. Now that the goal of judicial reform has been firmly established, the key question is how to accomplish that goal. One view advocates achieving judicial reform through administrative measures. A different path, which we proposed, is to accomplish the goal of judicial reform through reinforcing the construction of evidence system. Through analyzing the current law and investigating some judicial cases, the study found that the main reason for issues of judicial unfairness and corruption in current China is due to neglect of the construction of evidence system, and the current evidence rules contain too many problems, and the aforementioned problems have become a bottleneck for China's judicial reform and an important reason for China to reconstruct the whole evidence system. Therefore, in the long run, it would be ideal for legislature to promulgate a unified code of evidence law, but it is an extremely difficult task to coordinate the relationship between evidence law and three major procedural laws. In the short term, the most feasible compromise is to have the Supreme People's Court promulgate People's Court provisions on Evidence. After repeated test through the trials, we believe that such a unified People's Court provisions on Evidence will dramatically improve the evidence system and promote judicial fairness and the reform of legal education in China.     

The Quest for a Satisfactory Definition of Terrorism: R v Gul

The UK Supreme Court judgment in R v Gul presented a unique opportunity for a judicial appraisal of the definition of terrorism contained in section 1 of the Terrorism Act 2000. While the applicant was ultimately unsuccessful in his challenge, the Supreme Court's rejection of the state's argument that reliance on prosecutorial discretion could mitigate certain absurd applications of the section 1 definition of terrorism, eg the labelling of acts of UK or other military forces as terrorist, has potentially wide‐raging implications for the UK's counter‐terrorism measures. In addition, the powerful obiter dictum arguing in favour of a reform of this definition and a ‘root‐and‐branch’ review of counter‐terrorism legislation is a strong rebuke of recent high profile misapplications of such powers.     

Mixed Messages in Bottles: the European Union,Devolution, and the Future of the Constitution

An unprecedented eleven‐member UK Supreme Court decided R (Miller) v Secretary of State for Exiting the European Union on 24 January 2017. The Government's argument, that it could start the process of withdrawing from the EU using a prerogative power instead of an Act of Parliament, was comprehensively defeated by an 8:3 majority. However, the Government also secured a unanimous verdict that it did not need the consent from the devolved legislatures in Scotland, Wales, and Northern Ireland before invoking Article 50 of the TEU. I explore the judicial argumentation in light of Philip Bobbitt's six modalities of constitutional argument, five of which feature, and one of which ought to have featured, in this seminal case.     

最高人民法院的司法文件:现状、问题与前景

除了制定司法解释之外,我国最高人民法院还通过颁布各种形式的抽象性司法文件来指导甚至约束各级人民法院的法律适用活动,这一方面可以视为最高人民法院试图在通过低成本的方式来实现法制统一的目标,但其中也蕴含着某些阻碍我国司法体制进步的消极因素,因此,需要在司法体制改革的过程中加以关注并予以有效解决。     

Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation's highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences (legal realism and the attitudinal model), the belief that the justices merely “apply” the law (mechanical jurisprudence and the myth of legality) is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court, the most unaccountable of all American political institutions, is nurtured by the view that judicial decisionmaking is discretionless and mechanical, the sources of institutional legitimacy under legal realism are less obvious. Here, we demonstrate, using a nationally representative sample, that the American people understand judicial decisionmaking in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in mechanical jurisprudence is therefore not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.     

为最高人民法院司法解释权一辩

尽管最高人民法院的司法解释工作尚存在各种不足,然而我们更应该看到其对于我国法制建设与司法实践的积极意义。最高人民法院司法解释权的正当性可以从实在法和学理两个方面得到辩护。要推进我国的司法解释制度,就要在肯定最高人民法院司法解释权之正当性的基础上,对该制度的另一些重要问题展开进一步研究。     

THE FEDERAL JUDICIAL SYSTEM

Since Chief Justice Taft's highly activist tenure, many people have looked to the Supreme Court for leadership in efforts to modernize federal judicial administration. This article reviews the role of the Chief Justice of the United States in federal judicial administration. as well as organizational and procedural improvements in court management at all three tiers of the federal court system, as seen by one trained in public administration Although improvement is apparent. other needed steps include less emphasis on the number of judgeships and more careful long-range planning and experimentation with new techniques     

职权探知主义转向辩论主义的思考

我国民事诉讼法长期奉行职权探知主义。随着审判方式改革的推进,通过司法解释初步确立了辩论主义。但是我国当前民事诉讼中的辩论主义存在诸多缺陷。克服这些缺陷并完善我国民事诉讼中的辩论主义,必须建立起辩论主义的理论体系,改变法官职业群体的传统思维,并对现有的有关辩论主义的制度进行修改、补充和重构。