Institutional Arrangements and the Dynamics of Agenda Formation in the U.S. Supreme Court and Courts of Appeals

The manner in which agenda change occurs demonstrates how institutional arrangements influence agenda priorities in the Supreme Court and Courts of Appeals. A neo-institutional theoretic perspective is employed to examine the dynamics of agenda formation in these courts. The article finds that the Supreme Court's agenda choices influence the decisions of litigants, interest groups, and lawyers to appeal certain cases to the Courts of Appeals. While the Supreme Court's agenda primarily is influenced by internal factors, it is constrained by agenda changes in the appeals courts. Critically, it is shown that these federal appellate courts exist within an endogenous system with respect to agenda formation, as both courts respond to agenda changes made in the other over time.     

Comparing Circuits: Are Some U.S. Courts of Appeals More Liberal or Conservative Than Others?

This article investigates possible ideological differences between circuits of the U.S. Courts of Appeals. It looks at the distribution of three‐judge panel ideologies on the circuits and at differences in decisionmaking patterns, testing several theoretical approaches to circuit differences: the attitudinalist approach, arguing that different judicial ideologies account for intercircuit differences; historical‐institutionalist approaches that argue that circuit norms lead to differences in the proportion of conservative decisions and in the effects of judicial ideologies; and the rational‐choice institutionalist argument that overall circuit preferences constrain three‐judge panel decisions through the en banc process. Using a multilevel logit model, the study finds some support for the attitudinalist and historical‐institutionalist accounts of circuit differences. It also finds that intercircuit ideological differences contribute comparatively little to the prediction of appeals court outcomes.     

美国州法院统一预算体制及其借鉴——以法院预算过程的内部组织为重点

1970年代以来,美国州法院体系逐步确立了理性、集中的预算管理体制.在法院经费管理领域导入科层模型的原因是多元的,既包括一些改革者意识到的优点,也包括一个可能并未充分意识到的制度环境.针对科层化的预算管理体制可能产生的缺陷,美国州法院体系采取了一系列的应对措施,这些措施的核心是创建一个可以吸引法院体系内部和外部的个人和机构共同参与的治理结构.美国州法院统一预算体制对于我国当前正在开展的法院经费保障体制改革具有两个方面的借鉴意义.     

Parental Alienation in U.S. Courts, 1985 to 2018

Courts have been dealing with alienating behaviors in high conflict family litigation for hundreds of years. Experts in the behavioral sciences have been writing about mothers and fathers manipulating their children to disparage the other parent for more than seventy years. But in the last two decades some social scientists and legal professionals have questioned the legitimacy of parental alienation as a concept and its admissibility in child abuse and child custody litigation. This study was designed to examine the extent to which courts in the United States have found the concept of parental alienation material, probative, relevant and admissible. Thirty‐four years of cases were found with a WESTLAW query and analyzed. Cases were selected for study only if the record reflected that a judge or an independent expert found the concept of parental alienation to be of value in the litigation. Results illustrate increasing awareness of the concept and document its admissibility in every one of the United States. The numbers, sex of the alienating parent and prevalence of significant custody changes are discussed. Limitations inherent in this form of quantitative analysis are also discussed with recommendations for future research.     

Justice Without Borders: Human Rights Cases in U.S. Courts

In 1980 the Second Circuit Court of Appeals broke with years of legal tradition and ruled that human rights victims could sue their oppressors in federal court—even if the alleged violations occurred outside the country. This court based the extension of its authority on a provision of the 1789 Judiciary Act now referred to as the Alien Tort Claims Act (ATCA). ATCA cases present a unique opportunity to study judicial behavior in the face of separation of powers interests, traditions of judicial restraint, sovereign immunity defenses, and an active internationalist movement to extend human rights guarantees worldwide. Combining legal analysis with quantitative methodology, I find that U.S. federal courts are slowly accepting an internationalist approach to human rights, and that interest groups are largely driving this transformation. Sovereignty concerns and judicial ideology are not conditioning case outcomes, but party resources and separation of powers issues are.     

The Politics of Appointment and the Federal Courts'Role in Regulating America: U.S. Courts of Appeals Judgeships from T.R. to F.D.R.

Historians and political scientists have noted that appointments of judges to the U.S. Courts of Appeals are not determined by senatorial courtesy alone. What has not been adequately explained is why and when a president defers to a senator's choice rather than seek to control the selection. This article attempts to understand the politics of federal appellate court appointments. The author first identifies a major change in the work of the courts of appeals during the years 1900-1945—the growth in review of the actions of newly created federal regulatory agencies. Then, by examining Justice Department files and presidential correspondence, he discoveres three patterns of appointment emerging in the same period. The patterns vary with presidential perceptions of the role of the federal government and of the courts of appeals' ability to affect accomplishment of administration goals. Appointments during the first years of the presidencies of Theodore and Franklin Roosevelt and during the Harding and Coolidge administrations were dominated by patronage concerns. Those administrations yielded to the recommendations of senators and demonstrated no interest in the policy-making potential of these courts. In the two other patterns the White House played a more active role, with senators more often deferring to the president's selection. Concerns about professionalism dominated selections in Taft's and Hoover's administrations: because they recognized the policy importance of those judgeships but saw the role of government as limited, they sought judicial craftsmen who would make policy only incrementally. Policy concerns dominated selections during Wilson's administration and the latter years of both the Roosevelts' administrations: Justice Department officials screened nominees to determine their policy orientation, because federal appellate court judgeships were perceived as crucial policy positions that could affect the president's ability to implement his reform programs.     

Gender Disparities in Sentencing Departures: An Examination of U.S. Federal Courts

Using data from the United States Sentencing Commission, the present study examines the role of guideline departures in the sentencing of male and female defendants in federal courts. Findings indicate that female defendants continue to have lower odds of incarceration and to receive shorter sentence length terms, even after legal, extralegal, and contextual factors are controlled. The largest gender difference in the odds of incarceration was found for defendants who received substantial assistance departures, while male and female defendants in this same category were given the most similar sentence lengths. When departure status was examined as a dependent variable, it was found that female defendants were more likely to receive a sentencing departure. Finally, for both males and female defendants sentenced on multiple counts, those who went to trial and had prior criminal histories were less likely to receive sentencing departures. But defendants with higher guidelines sentences, those who had committed drug offenses, and those with more education were more likely to receive a sentencing departure.     

State Courts, the U.S. Supreme Court, and the Protection of Civil Liberties

Advocates of federalism, both in the United States and elsewhere, often cite the potential for enhanced protection of individual civil liberties as an emerging rationale for a federal system dividing governmental responsibilities between central and regional governments and central and regional judiciaries. Echoing this, some judicial officials and scholars, confronting an increasingly conservative U.S. Supreme Court, have called for state supreme courts to use the state constitutional grounds to preserve and increase the protections of the Bill of Rights. Using event count analysis, we examine state search-and-seizure cases for 1981 to 1993 to ascertain under what circumstances state courts would use this opportunity to eliminate Supreme Court review. We find that the relative ideological position of the state supreme courts and the U.S. Supreme Court often prevents, or does away with the need for, liberal courts to use the adequate and independent state grounds doctrine to expand the rights of criminal defendants and that state supreme court justices react more predictably in the assertion of constitutional protection law than the general consensus suggests.     

美国联邦巡回上诉法院的演进及启示——兼谈我国知识产权审判体制改革的方向

虽然我国已在北京、上海、广州正式设立了知识产权法院,但知识产权审判体制改革仍需进一步深化.在国际层面上,美国联邦巡回上诉法院属于较有特点的一种知识产权法院模式.通过对其设立动因、组织架构、实际效用及引发的争议进行深入考察,结合美国的政治结构、经济形势、司法传统,可以较为客观地认识美国联邦巡回上诉法院发挥的作用.我国知识产权制度赖以发展的制度环境与美国不同,但美国联邦巡回上诉法院在美国专利保护中发挥的作用以及演进轨迹,能够为我国知识产权法院在知识产权保护中发挥的功效提供更为理性的认识,进而为知识产权审判体制的进一步变革提供有益的启示.     

Judicial Specialization and Ideological Decision Making in the US Courts of Appeals

We investigate the influence of subject matter expertise, opinion specialization, and judicial experience on the role of ideology in decision making in the courts of appeals in a generalized, as opposed to specialized, setting. We find that subject matter experts and opinion specialists are significantly more likely to engage in ideological decision making than their nonspecialist counterparts and that opinion specialization is a particularly potent factor in ideological decision making. Further, increased judicial experience has no effect on the conditional use of ideology. We discuss the potentially wide‐ranging implications of our findings for both theory and policy.     

Passing and Strategic Voting on the U.S. Supreme Court

Analyzing strategic aspects of judicial decisionmaking is an important element in understanding how law develops. In this article, we examine sophisticated voting on the U.S. Supreme Court by empirically modeling justices' decisions to pass when it is their turn to vote during conference discussions. We argue that, due to the opinion assignment norm, the chief justice may pass when one of the key conditions necessary for sophisticated voting—certainty about the views held by other justices and the agenda—is lacking. By passing, the chief can view his colleagues' votes in order to determine which vote will allow him to assign the majority opinion and, ultimately, forward his policy preferences. Using data from Justice Lewis F. Powell's conference notes, we show that the chief passes for this purpose, and that doing so is an effective strategy. In addition, we show that the senior associate justice in a case, who has a nontrivial chance of assigning the majority opinion, also passes for strategic reasons. As we expect, the data indicate that the remaining associates seem not to pass for strategic purposes.     

The Incidence and Structure of Conflict on the U.S. Court of Appeals for the Federal Circuit

In 1982, Congress established the Court of Appeals for the Federal Circuit, a specialized court, with the objective of reducing judicial conflict and harmonizing circuit law in specific policy areas of special complexity. This article examines the incidence and determinants of judicial conflict on the U.S. courts of appeals, focusing specifically on the Federal Circuit. Using international trade and customs regulation cases decided during the 1982 to 1995 terms, the analysis reviews three possible explanations of judicial conflict: policy-oriented, sociolegal, and organizational. The analysis shows that conflict appears in 8.4 percent of the trade and customs regulation decisions rendered by the Federal Circuit during the period of study. The policy direction of Federal Circuit decisions and the court's hierarchical relationship with lower specialized courts provide the strongest explanation for the emergence of conflict on the court. Organizational factors such as panel composition evinced rather anemic explanatory capacity. The results raise an important functional similarity between the Federal Circuit and the generalist courts of appeals. Contrary to the laments of legal practitioners that conflict on the Federal Circuit is excessive relative to conflict on the generalist circuit courts, this analysis finds little support for that claim. Rather, the level of overt conflict on the court is actually low and corroborates conflict levels that have been reported for other U.S. courts of appeals.     

美国违宪审查的历史探渊

美国违宪审查的思想渊源至少可以追溯到英国的爱德华·柯克爵士,柯克的著作将违宪审查的种子撒播于北美之后,新大陆独特的环境哺育了它。特别是在独立战争前夕,它成为北美人民对抗英国政府统治的有效武器。美国独立后,联邦宪法的颁布、批准宪法的论战以及马伯里案之前的违宪审查实践为美国违宪审查制度的建立奠定了思想、制度和先例方面的坚实基础。尽管美国违宪审查制度的最终确立离不开马歇尔大法官在马伯里案中的创造性发挥,但马歇尔只是催生了它,历史女神克利奥对违宪审查的孕育才是违宪审查制度得以产生的关键。     

Criminal Prosecutions: Examining Prosecutorial Discretion and Charge Reductions in U.S. Federal District Courts

The role of the prosecutor in criminal punishments remains a fervent topic of criminal justice discourse, yet it has received limited empirical attention, particularly for U.S. Attorneys in federal district courts. The present study examines charging and sentencing outcomes in federal courts by combining charging data from the Administrative Office of the U.S. Courts with sentencing data from the U.S. Sentencing Commission. The merger of these data sources overcomes limitations of each and provides for an investigation of the causes and consequences of federal prosecutorial charging decisions. Our investigation focuses on the subtle but important influences that extralegal offender characteristics exert in this process. Results indicate that some extralegal characteristics are intricately tied to the likelihood of charge reductions. Moreover, these effects sometimes interact to produce compound disadvantages for some groups of offenders. Our analyses are guided by contemporary theoretical perspectives on courtroom decision‐making.     

美国现代司法审查的兴起

我们今天所看到的美国司法审查是司法审查发展的现代阶段。早期阶段的司法审查被认为是一种对抗立法暴政的革命行动,是一种政治色彩极强的行为。在马歇尔法院的推动下,司法审查由早期阶段进入了传统阶段。司法审查被赋予了浓厚的法律色彩,成为法院日常工作的一部分。19世纪末司法审查进入了转型阶段,法院用实体性正当程序去审查规制经济领域的立法。转型阶段预示了现代司法审查的到来。宪法和司法观念的转变、1937年的宪法革命和沃伦法院的推动共同促使了现代司法审查的兴起。现代司法审查的特征是对美国政治生活中司法部门的立法地位更为明确地接受。司法性立法被认为是法官无法推却和非常必要的职责。