Modeling Judicial Federalism: Predictors of State Court Protections of Defendants' Rights Under State Constitutions, 1969-1989

Drawing on data collected by Barry Latzer and using a logisticregression model that employs pooled time-series, this articletests a variety of factors for their impact on state high courtdecisions to diverge from U.S. Supreme Court criminal proceduredoctrines from 1969 to 1989. Several factors predict the developmentof independent state doctrines protective of civil liberties,including popular-vote retention elections and longer termsof office for state court justices, high court reputations,state wealth, and regional distinctions (with western courtsmost likely to advance individual rights). This study representsonly a small step in understanding an area of judicial behaviorthat has been long ignored in the political science literature.     

The Politics of Court Budgeting in the States: Is Judicial Independence Threatened by the Budgetary Process?

Judicial independence in American politics has been hailed as a means of preserving individual liberty and minority rights against the actions of the majoritarian branches of government. Recently, however, legal professionals and scholars of the courts have begun to question the magnitude of judicial independence, suggesting that budgeting and finance issues pose a threat to judicial independence. This article explores whether state judiciaries are being threatened on this front by soliciting the perceptions of key state officials. Using surveys of court administrators, executive budget officers, and legislative budget officers in the states, we examine three aspects of the politics of judicial budgeting: competing for scarce resources, interbranch competition, and pressure to raise revenues. The survey responses suggest that, in a substantial number of states, judicial independence has, at times, been threatened by interbranch competition and pressures to raise revenues.     

Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions

In 1985 state supreme courts issued the largest number of decisionsto date in which protections of individual rights were basedupon provisions of state constitutions. With increasing frequency,state high courts have held that certain constitutional minimumsof rights protection set by U.S. Supreme Court interpretationsof the U.S. Constitution do not satisfy more demanding preceptsof state constitutional law. Although much of this activityremains reactive rather than systematic, there has been a slightmove toward greater systematic analysis. Furthermore, statecourt decisionmaking can be understood in terms of five modelsthat reflect judicial perceptions of varying degrees of equivalenceor nonequivalence between rights provisions in the U.S. Constitutionand state constitutions. At the same time, however, the U.S.Supreme Court has clearly indicated an interest in monitoringthe individual rights decisions of state high courts, whilelower federal courts have begun to place greater reliance onstate constitutional law to preclude U.S. Supreme Court review.     

State High Courts, State Constitutions, and Individual Rights Litigation Since 1980: A Judicial Survey

In 1985, state courts of last resort issued more decisions thanin any year since 1950 in which they extended rights protectionsto individuals beyond those recognized by the U.S. Supreme Courtby basing rights protections solely or independently upon stateconstitutional grounds. A survey of state high court judgesand justices reported here indicates that there has been a nationwideincrease in the number of individual rights cases litigatedunder state constitutions since 1980. Significant-to-moderateincreases, however, were more likely to be reported by justicesfrom the Northeast and West, from states having a moralisticpolitical culture, and from courts whose members are appointedby the governor and/or legislature. State constitutional rightsclaims are more likely to be raised in criminal than noncriminalcases, though in both types of cases and in most states, stateconstitutional rights claims are raised less frequently thanfederal constitutional rights claims. Majorities of judges andjustices favor the ideas of teaching state constitutional lawin law schools and of testing for knowledge of state constitutionallaw on bar examinations.     

On the reputation of state supreme courts

A state supreme court, in making and justifying choices, uses a variety of sources of information and authority—its own precedents, scholarly commentaries, articles in law reviews, encyclopedias, restatements, and so forth. Quite often a state supreme court appeals to the wisdom or rejects the lack of it in the decision of a sister court in order to arrive at or buttress reasoning in a particularly problematic case. These citations—construed as derogation or deference—yield very handy and nonreactive indicators of hierarchies of prestige between and among the highest appellate courts of the several states. In this paper, I develop a simple and general measure of judicial reputation, present evidence on the hierarchy of state supreme courts as of 1975, show how this ranking has changed in the last 50 years, and examine competing and sometimes complementary explanations of judicial prestige. Taken together, social diversity, judicial professionalism, political ideology, and the size of case load provide an impressive explanation of the reputation of state supreme courts.     

Dignity,discrimination, and context: New directions in South African and Canadian human rights law

Conclusion The current approaches to equality law in South Africa and Canada place these jurisdictions at the forefront of serious and comprehensive judicial at tempts to give effect to substantive equality. These attempts to overcome formalism are processes, judicially acknowledged as such, and as yet far from complete. At the conceptual center of the development of substantive equality is the legal realization of human dignity: not an abstract, individualistic notion, but a concept about the relation between the individual and state, and individual and group, which is circumscribed by concern, respect and consideration. But substantive equality is not possible only through the case law. The current issues surrounding intersectional discrimination and the contextual appreciation of a claimant’s circumstances are urgent reminders that the methods and remedies afforded by the structure of litigation of equality rights claims simply cannot accommodate many instances which call for relief. The fact that these inadequacies of court enforced claims are beginning to be laid bare by some of the problems being faced by the Courts in equality claims is perhaps not a failing of equality law and the concept of dignity, but its strength. The methodology of human rights litigation in countries like Canada and South Africa supports a dialogue between court and legislature. As substantive equality develops in these jurisdictions, the limits of judicial development will be challenged. That is ultimately to be welcomed, if the legislatures are responsive to the definition of human dignity and substantive equality in development judicially, and respond with efforts to support and promote these developments.     

Human Rights as Reputation Builder: Compliance with the Convention Against Torture

A strong record of human rights protections is an important factor for a state to maintain a positive international reputation. In this article, we suggest that states will use compliance with human rights treaties as a mechanism by which to improve their reputations to help achieve their foreign policy goals. We hypothesize that international human rights compliance is a means to improve a state’s reputation in three specific situations: when the state is facing regional pressures as the result of a desire to join a regional organization; when the state is facing regional pressures not to run afoul of a court within a regional organization; or when a state seeks foreign assistance from an entity with human rights requirements for the receipt of such assistance. We examine our theory by analyzing human rights reports regarding state compliance with specific treaty obligations outlined in the Convention Against Torture (CAT). While the evidence for our hypotheses is mixed, we do find some support for our assertion that state compliance is linked to reputational concerns. In particular, states comply with the CAT when they are part of a regional organization that has a human rights court, and when they are receiving conditional aid from the European Union.     

The dispossession of the Innu and the colonial magic of Canadian Liberalism

This article examines the legal and philosophical grounds which are used by the nation state of Canada to dispossess aboriginal people who have not ceded land through treaties. Using the Innu people of the Labrador‐Quebec peninsula as an example, my thesis is that, far from being a neutral doctrine of rights and citizenship, liberalism functions as a magical, yet ethnocidal, instrument of colonial domination and land usurpation. I demonstrate this by looking at the way in which policies such as Comprehensive Land Claims and Environmental Impact Assessment, ostensibly for the protection of the Innu and other aboriginal peoples, predetermine that land will be legally ceded and ways of life based on it exterminated. The roots of this approach are traced through an examination of the imposition of sovereignty in colonial policy and its continued assertion in Canadian court cases, including the recent Delgamuukw decision. In conclusion, I draw attention to the affinities between the ideas of contemporary liberal theorists of citizenship and the rhetoric and policies of the Canadian state. As a positive proposal, I suggest that outstanding aboriginal land claims in Canada should be treated as the ‘Canada claim’, and that new processes for their resolution which do not presume Canadian sovereignty be established.     

论居住权的权利建构

早期罗马法上的居住权制度已被后世两大法系演进为现代收益性居住权,集合物权、人权、民生权等多项权利基因,且在当下通过诉诸法院而表达出来,经由法院裁判生成一种新型权利。鉴于其权利结构具有融合性,能够有效融入我国《物权法》体系,故当以私法意义上的用益物权属性为权利基础,形成以《物权法》为核心的权利架构,明确居住权的主体与客体、权利与义务、变动与终止,以保障其权利的可诉性与规范的可操作性,拓宽居住权保护的救济路径,以实现居住权的法律保护。     

State Public Opinion, the Death Penalty, and the Practice of Electing Judges

Do state supreme courts act impartially or are they swayed by public opinion? Do judicial elections influence judge behavior? To date these questions have received little direct attention due to the absence of comparable public opinion data in states and obstacles to collecting data necessary for comprehensive analysis of state supreme court outcomes. Advances in measurement, data archiving, and methodology now allow for consideration of the link between public opinion and judicial outcomes in the American states. The analysis presented considers public opinion's influence on the composition of courts (indirect effects) and its influence on judge votes in capital punishment cases (direct effects). In elective state supreme courts, public support for capital punishment influences the ideological composition of those courts and judge willingness to uphold death sentences. Notably, public support for capital punishment has no measurable effect on nonelective state supreme courts. On the highly salient issue of the death penalty, mass opinion and the institution of electing judges systematically influence court composition and judge behavior.     

Positive about Equality: The Public Sector Duty under Threat

This article seeks to demonstrate what is at stake in the Coalition Government's review of the public sector equality duty introduced by s. 149 Equality Act 2010. It does so by setting the duty in the context of other legal developments at home and abroad, especially the evolution of the role of ombudsmen in the UK in promoting equality and human rights, and the reform of court processes in India to decide social rights claims. It suggests that any attempt to dismantle the duty on ‘red tape’ grounds would be unfounded and retrograde step for the larger task of creating a more equal society.     

Judicial Self-Governance Index: Towards better understanding of the role of judges in governing the judiciary

The aim of this article is to introduce a novel view on how to evaluate the share of power held by judges in judicial governance. Its contribution to court administration and the regulation of judges is three-fold. First, it provides a novel empirically tested conceptualization of judicial governance that includes 60 competences grouped into eight dimensions (ranging from selection and education of judges to case allocation and publication of judicial decisions). Second, it proposes a new Judicial Self-Governance (JSG) Index that measures how much power domestic judges hold in these eight dimensions of judicial governance. Third, by applying the JSG Index to the longitudinal data for Germany, Italy, Czechia, and Slovakia this article demonstrates that the Judicial Council model is not the only institutional model of judicial governance leading to the empowerment of judges. This means that judges can hold many powers without the existence of judicial councils and even in the Ministry of Justice model.     

Reactive Responses: The Complementary Role of Federal and State Courts

The recent revival of state constitutional law has contributedsignificantly to the development of a dynamic judicial federalism.While interaction between federal and state courts is hardlynovel, acknowledgments of reciprocity have occurred more frequentlythan in the past. The Burger Courts receptivity to state judicialactivism inaugurated an era marked by creativity as well ascooperation. Thus far, major departures from established practiceshave been limited to a readily identifiable and recurring numberof state courts. All the same, the case studies included inthis article range across a variety of factual contexts andexplore an impressive array of links, both explicit and implied,between the federal and state courts. A disquieting new requirement,introduced as the result of a 1983 Supreme Court decision, exactsof state judges an unambiguous declaration of reliance on independentstate grounds as the price of ensuring federal nonintervention.Whether judicial federalism will continue to flourish withinso confining a framework remains problematic.     

小议我国股东权司法救济制度

对股东权的司法救济是股权保障的重要方式。以诉的构成要素为视角分析股东权司法救济程序，引导选择正确的股权保护模式。我国股东权司法救济程序还需进一步完善。     

中德社会保障争议处理制度比较研究

中德两国在历史发展过程中逐步形成了各自独特的社会争议处理制度和模式。德国社会法院作为专门审理社会保障争议的特殊行政法院，体现了法律保护的缜密性和司法的高度专业性，适应了社会保障争议多，内容纷繁复杂，技术性、专业性强的现实需要。中国社会保障争议处理法律制度则处于形成发展阶段，因争议种类、主体不同而设置了不同的解决争议的机构，采用了不同的法律制度、程序和处理原则。本文以两国现行社会争议处理法律规定作为比较标准，按照社会争议处理的程序，分别从社会争议的范围界定、行政处理程序和制度、法院处理程序和制度三方面进行了比较研究，为中国社会保障争议处理制度提供借鉴和启示。     

Constitutional courts as veto players: Lessons from the United States,France and Germany

The number of constitutional courts and supreme courts with constitutional review rights has strongly increased with the third wave of democratisation across the world as an important element of the new constitutionalism. These courts play an important role in day‐to‐day politics as they can nullify acts of parliament and thus prevent or reverse a change in the status quo. In macro‐concepts of comparative politics, their role is unclear. Either they are integrated as counter‐majoritarian institutional features of a political system or they are entirely ignored: some authors do not discuss their potential impact at all, while others dismiss them because they believe their preferences as veto players are entirely absorbed by other actors in the political system. However, we know little about the conditions and variables that determine them as being counter‐majoritarian or veto players. This article employs the concept of Tsebelis’ veto player theory to analyse the question. It focuses on the spatial configuration of veto players in the legislative process and then adds the court as an additional player to find out if it is absorbed in the pareto‐efficient set of the existing players or not. A court which is absorbed by other veto players should not in theory veto new legislation. It is argued in this article that courts are conditional veto players. Their veto is dependent on three variables: the ideological composition of the court; the pattern of government control; and the legislative procedures. To empirically support the analysis, data from the United States, France and Germany from 1974 to 2009 is used. This case selection increases variance with regard to system types and court types. The main finding is that courts are not always absorbed as veto players: during the period of analysis, absorption varies between 11 and 71 per cent in the three systems. Furthermore, the pattern of absorption is specific in each country due to government control, court majority and legislative procedure. Therefore, it can be concluded that they are conditional veto players. The findings have at least two implications. First, constitutional courts and supreme courts with judicial review rights should be systematically included in veto player analysis of political systems and not left aside. Any concept ignoring such courts may lead to invalid results, and any concept that counts such courts merely as an institutional feature may lead to distorted results that over‐ or under‐estimate their impact. Second, the findings also have implications for the study of judicial politics. The main bulk of literature in this area is concerned with auto‐limitation, the so‐called ‘self‐restraint’ of the government to avoid defeat at the court. This auto‐limitation, however, should only occur if a court is not absorbed. However, vetoes observed when the court is absorbed might be explained by strategic behaviour among judges engaging in selective defection.     

城乡统筹发展下对农民权益的平等性保护问题

构建和谐社会,实现全面小康,城乡统筹是科学发展观中的五个统筹之一。就是要更加注重农村的发展,解决好三农问题,坚决贯彻工业反哺农业、城市支持农村的方针,逐步缩小城乡发展差距,实现农村经济社会全面发展。其切入点就是加快城镇化,而"乡下人"的"市民化",岂是一个城市户口了得,必须在政治参与、受教育以及财产等方面对农民给与平等对待,通过智性的制度安排,渐次消除"城乡二元"现象。     

Bargaining Constitutional Design in Italy: Judicial Review as Political Insurance

Why would politicians, who expect to hold political power in the future, choose to create a constitutional court with the power of judicial review that can veto politicians' policies? Some theories suggest that international forces may be causal, as institutions or ideas are diffused geographically or within legal systems. Others focus on domestic politics as driving the decision to institute judicial review. Among these are the commitment, hegemonic preservation, party alternation and insurance theories. This article looks at the decision to establish a constitutional court in the Republic of Italy, the first post-World War II court in Europe that was not in a federal system. It argues that the insurance model drove the decision of the Italian Christian Democrats to support creation of a constitutional court at the point of constitutional design, but later to delay implementation once in power. Conversely, the Italian Communist–Socialist bloc opposed establishment of the court at the Constituent Assembly that wrote the post-war constitution on the ideological ground that it was contrary to popular sovereignty. However, once the leftist bloc found itself in the role of the opposition, it became a champion of the Constitutional Court and judicial review. The insurance theory is shown to explain the behaviour of the Christian Democrats in both design and implementation phases and the actions of the Communist–Socialist bloc during implementation.     

Breaking up Is Hard to Do: The Dissolution of Judicial Supervision of Public Services

Public services in many states have been placed under federal court supervision. In our 1991 PAR article, we examined the implications of the federal judicial decisions in supervising the Kansas City Metropolitan School District for the "new triumviate" governing public services—public officials, legislators, and judges. In this article, we examine judicial decisions affecting the same school district a decade later to reveal the impact of judicial supervision on the school district and to discern the implications for policy termination. We find that, once begun, judicially mandated federal court supervision of public institutions is not readily terminated, even pursuant to the wishes of the United States Supreme Court.     

Defensive Enforcement: Human Rights in Indonesia

The objective of the article is to examine the human rights enforcement in Indonesian legal and political system. This is done by studying the legal basis of human rights, the process of proliferation of human rights discourse, and the actual controversies of human rights enforcement. The study has the effect of highlighting some of the immense deficits in ensuring that violations are treated under judicial procedure and the protection of human rights is available and accessible for victims. The author inevitably came into a conclusion that the openness of legal and political arenas for human rights discourses is not followed with a tangible impact on the entitlement positions of the people. The problems of the weak institutions and the unenthusiastic enforcement show that, in Indonesia, human rights are formally adopted as a political strategy to avoid substantial implementation.