法律解释如何统一——关于司法解释权的法律统一解释功能的思考

目前我国宪法解释权以及法律统一解释权处于一种权力真空状态,人们希望最高人民法院能填补这一权力空白.然而根据我国宪法所规范的国家权力结构,最高人民法院是无力承担起这一重任的.最高人民法院的法律统一解释功能是有限的,只能统一各级法院的审判解释.我国的司法改革应着眼于通过构建合理的审判制度、判例制度以及合理划分最高人民法院与各级法院解释范围,完善最高人民法院的司法统一解释功能.     

Why Does the Federal Government Appeal to the Supreme Court of Canada in Charter of Rights Cases? A Strategic Explanation

Despite the impressive body of scholarship dedicated to analyzing litigation involving the Charter of Rights and Freedoms in the Supreme Court of Canada, there remains an incomplete understanding of why these cases come to the Court. Notably absent from the literature is sustained analysis of why governments, the most frequent class of appellant, bring Charter cases to the Supreme Court. Recent work has addressed the decision to appeal by the U.S. federal government and state attorneys general and provides an excellent theoretical starting point. I use case data collected from interviews with federal government lawyers and law reports to test whether the Canadian federal government's decisions to appeal to the Supreme Court of Canada in Charter cases are also "procedurally rational." I conclude that these decisions are primarily shaped by strategic considerations related to policy costs, case importance, reviewability, and the prospect of winning on appeal, regardless of the party in power. In the process, the article further extends the application of strategic decisionmaking theory with regard to law and courts beyond judicial behavior, and beyond the U.S. context.     

美国行政解释的司法审查标准——谢弗林案之后的发展

1984年,美国联邦最高法院通过判例确立了对行政机关的法律解释予以司法尊重的谢弗林原则。在之后二十多年里,这一原则经历了诸多发展变化,其核心是最高法院的法律解释方法。在对谢弗林案之后的相关判例和法官的法律解释方法进行考察的基础上,分析司法尊重标准对行政机关可能产生的影响以及行政机关和国会对此的回应,可以发现,行政和立法分支应当在法律解释和适用的过程中发挥更大的作用。     

行政判例价值分析及其实现

我国应该认同行政判例的制度价值,在行政法领域为判例留下可以适用的空间。目前宜采以最高人民法院确认来作为我国行政判例制度运行的模式,并在包括司法改革在内整个法治建设的框架内为行政判例制度的存在提供前提条件,以实现其与我国法律体系的兼容和协调。     

TRIAL COURTS' RESPONSES TO SUPREME COURT POLICY CHANGES

This is an exploratory study focusing on the response of federal district courts to Supreme Court changes in three policy areas: economic regulation, civil liberties, and criminal justice. An analysis of federal district court opinions published in the Federal Supplement before and after the Supreme Court decisions announcing the policy changes indicated that opinion-writing patterns of federal district judges changed in a manner consistent with the Supreme Court's new direction. Further study of the federal district courts' role in the policy process is recommended and suggestions for such research are made.     

Appellate Court Supervision in the Federal Judiciary: A Hierarchical Perspective

In this article, we examine factors that influence appellate supervision in the lower tiers of the federal judicial hierarchy. Drawing on the insights of agency theory, we develop a framework to assess the determinants of circuit panel decisions to affirm or reverse federal district court rulings. Our analysis of U.S. Courts of Appeals' published civil rights decisions over a 29-year period (1971–1999) offers support for several hypothesized relationships. As expected, the outcome of appellate review varied with the level of agreement between the preferences of the circuit (as principal) and the policy position of the trial court (as agent). In addition, we found that circuits were more likely to affirm trial court decisions that were contrary to the preferences of the federal district court judge, suggesting that circuit judges may rely on ideological signals when evaluating appeals before them. We also hypothesized that the monitoring activities of circuits would be influenced by individual circuits' relationship with their principal, the Supreme Court. Consistent with these expectations, panels were more likely to reverse district court rulings that were incongruous with the policy predisposition of the High Court. In addition, as Supreme Court scrutiny of a circuit increased, the likelihood of a circuit panel subsequently reversing a district court also increased. Although further inquiry is necessary to clarify the interpretation of this result, the finding does suggest that district courts are more likely to engage in decision making that deviates from circuit preferences when that circuit faces more intense supervision from the Supreme Court.     

DO LOWER COURTS ANTICIPATE CHANGES IN SUPREME COURT POLICIES?: A Few Empirical Notes

This paper takes advantage of the change from the Warren Supreme Court to the Burger Supreme Court to investigate a phenomenon not usually examined in judicial impact research—anticipatory reactions. The research question is whether and under what circumstances federal courts of appeals anticipate changes in policy by the Supreme Court. Changes in the citation of Warren Court civil liberties decisions from the Warren Court era to the early Burger Court era are used to evaluate this question. It is hypothesized that moves away from Warren Court decisions would be greatest for decisions which received minimal support on the Warren Court and for important or salient policies. Contrary to these expectations it was found that during the Burger Court era the number of citations of Warren Court decisions actually increased, the percentage of positive citations increased, and the increases were greatest for decisions receiving minimal voting support on the Warren Court and for decisions classified as important.     

建立和完善案例指导制度的几个问题

第一个问题,我觉得在谈案例指导制度的时候,应当弄清楚什么是案例制度,也就是案例制度的概念,我个人理解。最高人民法院“二五”改革纲要里面讲的案例是经最高人民法院认可,并且在最高人民法院公报上发布的、对审理同类案件具有参照借鉴作用的、已经发生法律效力的判决。     

论美国联邦最高法院宪法解释的创造性

美国联邦最高法院的宪法解释具有创造性,其主要表现在司法审查权、三重审查标准、选择性吸收理论、推翻先例和创造新的公民权利等五个方面。原旨主义和非原旨主义都会达至具有创造性的宪法解释,原旨主义具有天然的民主合法性,有时美国联邦最高法院会以原旨主义来掩饰它们具有创造性的宪法解释。宪法解释的创造性是一把双刃剑,有积极性的一面也有消极性的一面。美国联邦最高法院的宪法解释曾经也将永远具有创造性,只有如此它才能为宪法提供与时俱进的新意义。     

Rethinking Regime Politics

Many recent studies of “regime politics” argue that judicial review is ultimately used to promote the interests of the dominant governing regime. I explore this claim by evaluating whether the invalidation of federal laws by the US Supreme Court fits the empirical expectations of the regime politics approach. I find that the Court frequently invalidates statutes when (1) the ideology of the Court diverges from that of the sitting elected branches (suggesting that the Court does not fear sanctions or nonimplementation), and (2) the ideology of the sitting elected branches converges with that of the elected branches that enacted the statute (suggesting that the Court is defying the sitting elected branches). My findings suggest that the Court does not primarily use judicial review to promote the interests of the dominant governing regime.     

Sharia Courts and Muslim Personal Law in India: Intersecting Legal Regimes

In July 2005, a Delhi lawyer filed suit with the Supreme Court of India seeking to ban “sharia courts” (dar ul qazas) and Islamic legal opinions, arguing that they constitute a “parallel judicial system” that undermines the state's legal institutions. The Supreme Court decided in 2014 that dar ul qazas are not parallel but appropriate alternative forums. In this article, I analyze several divorce cases in Delhi and Patna dar ul qazas to show that, rather than being alternative or parallel, dar ul qazas intersect with state courts. Attending to this intersection, I argue, has implications for how we understand legal pluralism, secularism, and the relation between them. Specifically, I argue that because of how cases travel between dar ul qazas and state courts, dar ul qazas help to consolidate the oppositions between religious and secular law, kin relations, and rights upon which secularism relies.     

The Influence of Personal Values on Legal Judgments

The non‐legal factors that influence judicial decisions have been the subject of extensive debate. Theoretical and empirical work has focused on factors including political ideology, activism, attitudes, and demographics. Personal values are related to these factors and are central to decision making. The study described in this article translated theories and techniques from psychological research to examine the role of personal values in judicial decision making. A novel method of assessment of value expression in legal opinions revealed a different pattern of values expressed in the majority and minority opinions of a case that divided the Supreme Court. An empirical study of legal academics extended this analysis and highlighted the significant influence of personal values on legal decisions. The value:decision paradigm provides a new framework to analyse judicial decision making, judicial division, and judicial discretion and has significant implications for judicial diversity.     

Judicial Review Without Rights: Some Problems for the Democratic Legitimacy of Structural Judicial Review

This article addresses an issue overlooked in most of the literatureon judicial review: the legitimacy of judicial review of a constitution'sfederal and structural provisions. Debates about the legitimacyof judicial review—at least as conducted throughout theCommonwealth—are usually focussed on rights. These debatesappear to assume that the power of courts like the AustralianHigh Court and the Canadian Supreme Court to interpret and enforcefederal and structural provisions is unproblematic. This articletests that assumption and concludes that those who hold democracy-basedobjections to constitutional rights should seriously reconsider,and perhaps oppose, federal and structural judicial review aswell.     

Justices and Legal Clarity: Analyzing the Complexity of U.S. Supreme Court Opinions

Legal clarity is important to understand and measure because of its connection to the rule of law. We provide the first systematic examination of the clarity of Supreme Court opinions and discover five important results. First, certain justices systematically craft clearer opinions than others. Justices Scalia and Breyer write the clearest opinions, while Justice Ginsburg consistently writes the most complex opinions. Second, ideology does not predict clarity in majority or concurring opinions. Third, all justices write clearer dissents than majority opinions, while minimum winning coalitions produce the clearest majority opinions. Fourth, justices across the board write clearer opinions in criminal procedure cases than in any other issue area. Finally, opinions that formally alter Court precedent render less clear law, potentially leading to a cycle of legal ambiguity.     

Fear of Reversal as an Explanation of Lower Court Compliance

Lower courts in the United States are generally responsive to specific precedents and trends in the decisionmaking of their judicial superiors. In this article, we ask why. We test one popular explanation—that compliance can be attributed to judges' fear of having their decisions reversed—through an analysis of search and seizure cases decided in the U.S. Courts of Appeals between 1961 and 1990. Since the Supreme Court cannot reverse a decision unless it agrees to review it, we ask whether circuit judges are more likely to decide as the Supreme Court would be expected to when they face cases that are otherwise more likely to be reviewed by the Court. Finding that they are not, we conclude that fear of reversal cannot account for widespread circuit court compliance in these cases, nor, presumably, more generally. More broadly, our findings point to the importance of factors apart from supervisors and the threat of sanctions in determining subordinates' compliance.     

Citations to Authority in Supreme Court Opinions

This article analyzes citations used by the U.S. Supreme Court in its majority opinions. The research explores variations in citations and evaluates various explanations for these variations, including the potential impact of individual judicial style, legal factors, and group interaction in the formation of opinions. The article suggests that systematic analysis of citations holds potential for contributing to our understanding of the judicial process.     

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     

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.     

The Role of the United States Supreme Court in Shaping Federal Drug Policy

Through judicial review, the United States Supreme Court has played a pivotal role in deciding and/or interpreting the constitutionality of legislation. Since the passage of the Pure, Food and Drug Act in 1906, the Supreme Court’s role has been integral in formulating drug policy. In some instances, the Court’s decisions have limited the authority of the federal government, while in others have greatly expanded this authority. As a direct result of the decision-making of the Supreme Court, limitations have periodically been placed on Congress to regulate controlled substances. Many people, who were perceived as medical patients, became criminal drug users. The Court has restricted and later approved of the use of drugs during the free exercise of religion. Lastly, the Court has continually reinforced the supremacy of the federal government over the states, in turn limiting the ability of the states to consider marijuana legislative reform.     

我国“案例公布制度”的实证考察及其启示

自1985年起,最高人民法院采用《公报》的形式定期向国内外公开发布典型案例,以为下级法院在审判同类案件时"提供范例"。但"案例公布制度"并没有很好地实现指导全国各级人民法院的审判工作,统一法律适用标准的初衷。目前司法实践中还存在着同案差异性审判、同案的重复性审判、案件的机械性裁判和地方法院各自统一法律适用标准等现象,这些现象的出现主要是由于"案例公布制度"自身存在的诸多制度性缺陷所致,因而需要在制度层面予以完善。