The Impact of Supreme Court Activity on the Judicial Agenda

When the Supreme Court takes action, it establishes national policy within an issue area. A traditional, legal view holds that the decisions of the Court settle questions of law and thereby close the door on future litigation, reducing the need for future attention to that issue. Alternatively, an emerging interest group perspective suggests the Court, in deciding cases, provides signals that encourage additional attention to particular issues. I examine these competing perspectives of what happens in the federal courts after Supreme Court decisions. My results indicate that while Supreme Court decisions generally settle areas of law in terms of overall litigation rates, they also introduce new information that leads to increases in the attention of judges and interest groups to those particular issues.     

Understanding the Judicial Role in Addressing Gender Bias: A View from the Eighth Circuit Federal Court System

The role of trial judges in the litigation process is frequently debated. Are judges to be dispassionate adjudicators, disengaged referees in a sport in which attorneys compete? Or are they charged with a more active role in promoting the substance, form, and process of justice? In the present paper, we explore the judicial role in addressing gender bias in federal litigation, using data gathered for the Eighth Circuit Gender Fairness Task Force. The federal judges of this circuit were surveyed about their experiences, observations, and opinions of gender-biased conduct. Results indicated that although judges viewed judicial intervention as an appropriate response to gender bias, they had little personal experience with intervention in such a situation. Fur thermore, when specific hypothetical scenarios were presented, they generally agreed that the described conduct was inappropriate but offered little consensus regarding the best course of action for an attorney or judge confronted with such behavior. The Eighth Circuit data thus provide the basis for expanded understanding of the conduct at issue, the options for action in response, and the persistent discrepancy in viewpoints on gender bias and the judicial role.     

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.     

What Determines Judicial Prestige? An Empirical Analysis for Judges of the Federal Court of Australia

This article examines judicial citations to analyze the determinantsof judicial prestige in the Federal Court of Australia. Firstwe construct two alternative measures of judicial prestige forall current and retired judges of the Federal Court. Second,we regress these measures of judicial prestige on a series ofexplanatory variables covering age on appointment, appointinggovernment, prior experience, which law school the judge attended,how many law review articles the judge has published, gender,and tenure. We compare our results with those of previous studiesthat examine the determinants of judicial influence and prestigein courts in the United States and the High Court of Australia.One of the main contributions of the article is to provide evidencefrom an intermediate appellate court that can be used to testthe general application of findings as to what determines judicialprestige in the United States to courts in other countries withdifferent institutional frameworks.     

The Beginnings of Germany's Federal Constitutional Court

Abstract.   In this paper I take up aspects of the origins of the Constitutional Court of the Federal Republic of Germany, with special attention to the reasons for the aggregation of power and to the question of how far constitutional court models from abroad played a role in the development of the Court. Where the beginnings of the Federal Constitutional Court are concerned, the German tradition and the experience with the lawless regime of the national socialists played a fundamental role. To a certain degree the Austrian model and to a lesser degree that of the United States figured in the deliberations of Germany's post-War constitutional framers, too.     

Regarding/Disregarding: The Judicial Rhetoric of President Barak and the International Court of Justice's Wall Advisory Opinion

In Mara'abe v. Prime Minister of Israel (September 2005), Israel'sHigh Court addressed the effect which it should give to theInternational Court's Legal consequences of the constructionof a wall in Occupied Palestinian Territory advisory opinion.This had declared the wall illegal but, while affirming thatit shared the International Court of Justice's normative rulings,the High Court reiterated that it thought the wall a lawfulsecurity measure. Rather than dissect the substantive treatmentof the issues involved, this article examines the structureand rhetorical techniques employed by President Barak in hisleading judgment in Mara'abe. He effected a skilful practicaldisregard of the International Court's normative findings throughan elision of argument by relying on the doctrine of res judicata—aconcept that has no relevance whatsoever to advisory opinions.     

Expertise,Experience, and Ideology on Specialized Courts: The Case of the Court of Appeals for the Federal Circuit

What roles do prior expertise and accumulated experience play in shaping ideologically consistent voting on a specialized court? Using a dataset of obviousness patent cases from the Court of Appeals for the Federal Circuit spanning 1997–2007, we show that prior expertise enhances the influence of ideology on judicial decisionmaking, but that accumulated experience does not. In addition, we build on previous work and show that ideology is a factor in decisionmaking in technical areas of law, contrary to the received wisdom on patent cases.     

A Court Quietly Rewrote the Federal Pesticide Statute: How Prevalent is Judicial Statutory Revision?

Author's Note: My thanks to Lloyd Musolf, Paul Sabatier, Martin Shapiro, John M. Thomas and three anonymous reviewers for helpful comments on an earlier draft. I also acknowledge the generous support of the Energy and Environmental Policy Research Program at the Institute of Ecology, University of California at Davis.
The resurgence in policymaking by American courts has revitalized the longstanding debate over judicial activism. Yet much of that debate addresses judicial interpretations of the Constitution, as distinct from statutory law. When interpreting vague statutes, judges can make inconspicuous but fundamental policy reforms. This paper discusses the political circumstances encouraging this form of judicial intervention. The enormous subtlety in judicial capabilities is illustrated. The paper concludes that by focusing primarily on obvious features of court activism, the contemporary debate may be seriously under representing the extent of judicial contributions to our fragmented form of governance.     

Naming Names: The Impact of Supreme Court Opinion Attribution on Citizen Assessment of Policy Outcomes

The manner in which political institutions convey their policy outcomes can have important implications for how the public views institutions' policy decisions. This paper explores whether the way in which the U.S. Supreme Court communicates its policy decrees affects how favorably members of the public assess its decisions. Specifically, we investigate whether attributing a decision to the nation's High Court or to an individual justice influences the public's agreement with the Court's rulings. Using an experimental design, we find that when a Supreme Court outcome is ascribed to the institution as a whole, rather than to a particular justice, people are more apt to agree with the policy decision. We also find that identifying the gender of the opinion author affects public agreement under certain conditions. Our findings have important implications for how public support for institutional policymaking operates, as well as the dynamics of how the Supreme Court manages to accumulate and maintain public goodwill.     

Implementing Prior Judicial Decisions as Precedents: The Context of Application and Justification

The paper concerns the conditions and methods of using previous judicial decisions as a kind of precedents in the processes of application of law within the statutory legal order. The use of such decisions, not announced by the legislator, depends on the courts, undertaking such actions on the grounds of similarity of cases or of decisional processes. Such decisions do not become an exclusive validation argument and may create a situation of their potential conflict with legal regulations as well as an inferential supplementation of their content. Dissemination of such activity of the courts leads to the development of precedential practice (relevant to the statutory legal order), though, its actual jurisdictional role depends on proper justification of decisions, within which reference to these decisions should be adaptive (in relation to the elements of the current case), generalizing (forming elements of ratio decidendi) as well as argumentative and discursive (in respect of the way in which the decisional reasoning and arguments expressed in the prior justification are used).

     

法院微博:司法效用与规范路径

法院微博的开通标志着司法机关主动加强与民意之间的互动。民意与司法的理性互动,有助于民众理解、接受和信任司法权威。法院微博具有推进司法民主、司法公开和司法独立的司法效用。但是,当下法院微博运行中存在诸多困境。在深入解读法院微博困境的基础上,应当从三个向度进行规范:在理念层面,以司法和民众双向需求为出发点、事前引导舆论风向和事后疏导舆论压力;在制度框架层面,法院微博的覆盖面应逐步自上而下推进、建立法院微博的专人管理和报道事件的选取制度;在运行机制层面,构建微博更新的常态化机制、微博互动的及时性机制和个案追踪机制。最终为重塑司法权威和提升司法公信力提供助力。     

The Impact of Training and Language Competence on Judicial Application of EU Law in Hungary

The aim of this research is to identify the role that training in EU law and in a foreign language play in the use of EU law by Hungarian judges in domestic proceedings. Judges in the new Member States face the problems of no or inadequate official EU translations of relevant EU law or case‐law. The need to compare the meaning of other language versions therefore comes into play in order that the judges comply with the requirements of Union loyalty in the Treaty on European Union: Hungarian judges are shown to exhibit certain creative responses to these challenges. The approach to the research is based on an examination of the institutional framework for judicial training, a selection of pertinent case‐law of the Hungarian courts as well as interviews with a number of judges involved in the application of EU law in their courts.     

The Influence of Public Sentiment on Supreme Court Opinion Clarity

We examine whether public opinion leads Supreme Court justices to alter the content of their opinions. We argue that when justices anticipate public opposition to their decisions, they write clearer opinions. We develop a novel measure of opinion clarity based on multifaceted textual readability scores, which we validate using human raters. We examine an aggregate time series analysis of the influence of public mood on opinion clarity and an individual‐level sample of Supreme Court cases paired with issue‐specific public opinion polls. The empirical results from both models show that justices write clearer opinions when their rulings contradict popular sentiment. These results suggest public opinion influences the Court, and suggest that future scholarship should analyze how public opinion influences the written content of decision makers’ policies.     

Opinion Construction in the Roberts Court

The Supreme Court's main output is the decision on the merits. Little is known, however, about how such decisions are constructed. This article is one of the first to look at the way Supreme Court opinions are constructed by examining the impact of the core linguistic resources at the Court's disposal. It does so in a novel manner by measuring the Court's reliance on wording from parties’ merits filings, amicus briefs, and lower‐court opinions between the 2005 and 2014 terms. To accomplish this goal, the article compares language in over 13,000 documents in the Court's docket during this period with their respective majority opinions. The article then looks at the relative impact of parties’ briefs and filings, amicus curiae briefs, and lower‐court opinions on the Court's majority opinion language. This article provides both macro– and microlevel analyses by locating the relative effects of these linguistic resources on the Court's overall opinion language as well as by breaking these findings down by individual justice. In the aggregate, this article finds that, of the three resources analyzed, the Court tends to use language from parties’ merits briefs most frequently, then wording from lower‐court opinions, and the least from amicus briefs, but that differences in case level factors shift the relative utility of each of these three resources.     

The Nature of Circuit Court Gatekeeping Decisions

This article provides an analysis of the nature of circuit court threshold decisions. Specifically, a model sensitive to the institutional context of the circuits is developed and tested across all threshold decisions in the sample and in more limited samples of proper party and proper forum votes. The results suggest that circuit court gatekeeping is a function of multiple factors, including circuit court law, litigant status, the lower court decision, and, at times, the ideological preferences of the circuit judge or that of his or her circuit.     

法院司法信息公开的初步研究

法院司法信息是指法院在履行职责过程中制作或者获取的、与法院及法官司法活动有关的、并且以一定形式记录与保存的信息,可以分为司法审执信息和司法审务信息两大类。法院司法信息公开,在发挥诸多正面功能的同时,也面临着一些需要克服的障碍。为落实法院司法信息公开,应当在法院内部成立专门工作机构,界定信息公开范围,明确信息公开途径,并且建立考核、监督与问责制度。