Of Garbage Cans and Rulings: Judgments of the European Court of Justice in the EU Legislative Process

This article addresses the problem of how to explain the influence that rulings of the European Court of Justice (ECJ) have on the political decision-making of the EU. It will be argued that a framework developed by Kingdon which follows the garbage can model of Cohen, March and Olson is a good approach to conceptualising this influence. This framework explains political processes in terms of problems, solutions, participants and choice opportunities. In order to illustrate the argument, two famous rulings, Dassonville and Cassis de Dijon, are examined in detail. Both rulings dealt with the same subject but had different impacts on political decision-making. The difference in influence depended on the conditions of the political arena at the time the rulings were given and not on their legal contents.     

PUBLIC OPINION REACTION TO REPEATED EVENTS: Citizen Response to Multiple Supreme Court Abortion Decisions

While numerous works explores how single events or political actions affect public opinion, almost no research explores how this effect evolves with repeated actions. The Conditional Response Model holds that while elite actors can influence and polarize the public when they first act on an issue, subsequent action will not have this same effect. We challenge this model based on its depiction of psychological models of attitude formation and change. Instead of focusing on the number of times an actor has addressed an issue, we argue that the state of public opinion is the key to determining how the public will react to multiple elite actions over a long timeframe. We examine how the public reacted to multiple Supreme Court decisions on abortion. Our results suggest that the Conditional Response Model does a poor job of depicting public opinion and that actors are not limited in their influence by the number of previous actions on an issue.     

Mobilizing Interest: The Effects of Money on Citizen Participation in State Supreme Court Elections

In this article, we investigate one highly significant aspect of the role of money in judicial elections: whether campaign spending increases citizen participation in the recruitment and retention of judges. Specifically, by using a two-stage modeling strategy that allows us to separate the effects of challengers from the effects of money, we assess whether relatively expensive campaigns improve the chances that citizens will vote in the 260 supreme court elections held from 1990 through 2004 in 18 states using partisan or nonpartisan elections to staff the high court bench. We find that increased spending significantly improves citizen participation in these races. Whether measured as the overall spending in each election or in per capita terms, greater spending facilitates voting. We conclude, contrary to conventional wisdom about the deleterious effects of money in judicial elections, that by stimulating mass participation and giving voters greater ownership in the outcomes of these races, expensive campaigns strengthen the critical linkage between citizens and the bench and enhance the quality of democracy.     

State Court Strategies and Politics during the Appropriations Process

This article explores state court budgetary strategies and their effectiveness in the appropriations process as perceived by key budgeting actors. In general, we find evidence of state judiciaries that try to remain "above politics" when dealing with budget issues. The most important strategies to this effect include submitting realistic requests, providing documentation to support needs, and not using budget "weapons" at their disposal (e.g., writs of mandamus). However, the survey results do indicate that state judiciaries use certain strategies that have a more political tint, such as lobbying by court officials.     

论中国行政立法程序的蜕变

自2004年《立法法》颁布以来,我国的行政立法程序有了一个比较大的变迁。行政立法从规划本位转变到立项本位,起草从内部协调为主到法治、民主和效能的综合考量,草案审查的法治化和行政法规规章解释制度的改革等都体现了我国行政立法程序已经进入一个新的历史阶段。     

Changing Relations between Government and Citizen: Administrative Law and the Work of the Australian Commonwealth Ombudsman

This article examines the individual complaint‐taking role of the Australian Commonwealth Ombudsman over a 28 year period between 1977–2005. This study was conceived through a curiosity to determine how a 30 year old administrative law institution is reacting to accommodate a dramatically altered legal, political and economic environment. The suspicion was that, in the absence of legislative amendment to its jurisdiction and role, the Commonwealth Ombudsman must strategically change due to the demands of these external forces. The overall quantitative finding from the data analysis is that the internal strategic direction of the Commonwealth Ombudsman is indeed altering. In terms of dispute resolution it is increasingly using its discretionary powers to turn individual complainants back to government departments/agencies. The data analysis reveals that this administrative law institution is shifting from a reactive individual complaint taker to a proactive standard setter for government administration. This article suggests that this movement may impact upon citizen ‘rights’ or perceptions of their rights to have their individual complaints heard against government. This in turn may have a ripple effect for notions of democratic accountability and the relationship between the citizen and the state.     

论立法过程中的利益平衡

立法过程中存在着广泛的利益冲突,社会转型过程中利益冲突力量对比的不平衡性趋向日益凸显,客观上需要在立法过程中进行必要的利益平衡。在构建利益平衡机制过程中,公平、有效等价值追求的实现有赖于科学、合理的制度建设与实施。在利益平衡诸要素中,立法公开制度建设最为重要。具体而言,利益冲突平衡机制的构建应当从立法机关自身建设、扩大立法民主参与、构建合理博弈平台等多方面进行。     

Taking It to the Next Level: The Elevation of District Court Judges to the U.S. Courts of Appeals

We address an important aspect of judicial careers: the elevation of judges from the U.S. District Courts to the Courts of Appeals. We argue that the likelihood of a judge being elevated is a function of informational cues and signals regarding the nature of the judge and the judge's compatibility with presidential preferences. We also expect norms involving the intersection between geography and Senate politics to affect a judge's elevation chances. Using data on district court judges appointed between 1946 and 1995, we find that the likelihood of a judge being elevated is a function of the judge's ideological compatibility with the president, the judge's previous ABA rating, and Senate norms involving state "ownership" of appeals court seats. Blunt indicators of policy preferences trump direct signals when presidents decide whom to elevate, leaving judges little control over their career prospects and thus less incentive to slant their decisions in the direction of the president's preferences.     

培养义务意识:公民法治教育的重心

公民法治教育应该以培养权利意识为重心还是以培养义务意识为重心,对于这一问题,当前几乎是一边倒地认为应该以培养权利意识为重心。而从权利与义务的关系、法治的人性基础、法治社会的建设、转型社会的特殊性等方面分析论证看,公民法治教育应该以义务意识的培养为重心。     

Implementing International Human Rights Law at Home: Domestic Politics and the European Court of Human Rights

The European Court of Human Rights (ECtHR) boasts one of the strongest oversight systems in international human rights law, but implementing the ECtHR??s rulings is an inherently domestic and political process. This article begins to bridge the gap between the Court in Strasbourg and the domestic process of implementing the Court??s rulings by looking at the domestic institutions and politics that surround the execution of the ECtHR??s judgments. Using case studies from the UK and Russia, this article identifies two factors that are critical for the domestic implementation of the Court??s rulings: strong domestic, democratic institutions dedicated to implementing the ECtHR??s judgments and an overarching sense of responsibility to set a good example at home and abroad for respecting human rights and the rule of law. This article concludes with a discussion of the steps necessary to facilitate better implementation of the ECtHR??s rulings.     

Courting the President: How Circuit Court Judges Alter Their Behavior for Promotion to the Supreme Court

We examine whether circuit court judges sacrifice policy purity for career goals. We compare the behavior of contender judges–those most likely to be elevated to the Supreme Court–during vacancy periods with their behavior outside vacancy periods. We also examine the behavior of noncontender judges during those same times. The data show that during vacancy periods, contender judges are more likely to vote consistently with the president's preferences, to rule in favor of the United States, and to write dissenting opinions. Noncontender judges fail to evidence such behavior. These findings provide empirical support for the argument that federal judges adapt their behavior to specific audiences, and provide new avenues for research into judges' goals and the role of audiences in judicial decision making.     

Outcome,Process and the Rule of Law

In this address, marking the 30th anniversary of the establishment of the Administrative Appeals Tribunal, Chief Justice Gleeson of the High Court speaks about several matters bearing upon decision‐making in administration and the role of administrative review. These include the impact of policy in individual decisions, and the relationship of merits review tribunals to courts. He notes that ‘one of the characteristic features of the context in which modern administrative law functions is a change in emphasis from the duties of public officials to the rights of citizens.     

培育公民社会:构建和谐社会的必由之路

“和谐社会”之谓“和谐”,从社会伦理的意义上讲是指人自身的和谐、人与社会的和谐及人与自然的和谐。要实现这种多方面的内在和谐,从社会存在和发展的主体性因素上讲,离不开独立自主的人格、平等原则、契约精神等一系列专属于现代社会公民的自觉、自律精神和公民意识;而现代“公民社会”的发育、生成和实践,就客观地孕生并包含了这诸多因素。因此,只有培育公民社会,才能为中国特色“和谐社会”的实现提供必要和充分的条件。     

Network Analysis and the Law: Measuring the Legal Importance of Precedents at the U.S. Supreme Court

Timothy R. Johnson Department of Political Science, University of Minnesota, Twin Cities, 1414 Social Sciences Building, 267 19th Ave. South, Minneapolis, MN 55455 e-mail: trj{at}umn.edu James F. Spriggs, II Department of Political Science, Washington University in St. Louis, Campus Box 1063, One Brookings Drive, St Louis, MO 63130 e-mail: jspriggs{at}artsci.wustl.edu Sangick Jeon Department of Political Science, Stanford University, 616 Serra Street, Encina Hall West, Room 100, Stanford, CA 94305-6044 e-mail: sjeon{at}stanford.edu Paul J. Wahlbeck Department of Political Science, George Washington University, 1922 F Street, N.W. Suite 401, Washington, DC 20052 e-mail: wahlbeck{at}gwu.edu e-mail: jhfowler{at}ucsd.edu (corresponding author) We construct the complete network of 26,681 majority opinionswritten by the U.S. Supreme Court and the cases that cite themfrom 1791 to 2005. We describe a method for using the patternsin citations within and across cases to create importance scoresthat identify the most legally relevant precedents in the networkof Supreme Court law at any given point in time. Our measuresare superior to existing network-based alternatives and, forexample, offer information regarding case importance not evidentin simple citation counts. We also demonstrate the validityof our measures by showing that they are strongly correlatedwith the future citation behavior of state courts, the U.S.Courts of Appeals, and the U.S. Supreme Court. In so doing,we show that network analysis is a viable way of measuring howcentral a case is to law at the Court and suggest that it canbe used to measure other legal concepts. Authors' note: We appreciate the suggestions of Randy Calvert,Frank Cross, Pauline Kim, Andrew Martin, Richard Pacelle, JimRogers, Margo Schlanger, Amy Steigerwalt, and participants inthe Workshop on Empirical Research in the Law at WashingtonUniversity in St Louis School of Law. We presented former versionsof this article at the 2006 meeting of the Midwest PoliticalScience Association, Chicago, April 20–23; the 2006 meetingof the Southern Political Science Association, Atlanta, GA,January 5–7; and the 2006 Empirical Legal Studies Conference,Austin, TX, October 27–28.     

State Constitutional Limits on Legislative Procedure: Legislative Compliance and Judicial Enforcement

Most state constitutions contain detailed restrictions on thelegislative process. Violations of some of these restrictions(e.g., single-subject requirements) are reflected on the faceof a final enactment. Other violations (e.g., alteration ofa bill to change its original purpose) are not evident in thefinal enactment, but require investigation of the legislativeprocess. State courts have developed a variety of approachesto these second types of violations, from excluding all evidencebeyond the enactment to permitting any evidence of constitutionalviolations. The Pennsylvania Abortion Control Act was passedin apparent violation of both types of constitutional restrictions.The legislative debates reflected legislators' attitudes aboutsuch restrictions, but the Pennsylvania courts refuse to enforcethem. After surveying other judicial approaches, the articlediscusses the legislative and executive obligation to followconstitutional restrictions, regardless of judicial enforcement.The article then advocates increased judicial enforcement, whilemaintaining proper deference to the legislature.