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.     

Behavioral science and the juvenile death penalty

Behavioral science data included in an amicus brief has been introduced into a recent Supreme Court decision (Thompson v. Oklahoma) involving the juvenile death penalty. However, a close examination of the data fails to provide support for either the pro- or antijuvenile death penalty position.     

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.     

Capital Punishment in the Era of Globalization: A Partial Test of the Marshall Hypothesis Among College Students

U.S. Supreme Court Justice Thurgood Marshall’s hypothesis—that knowledge about the death penalty would reduce support for it—has been measured in terms of the public’s receptivity to key arguments for abolition including racial discrimination, lack of deterrent effect, and innocence. The effect of the international contextual argument, however, has gone virtually untested, despite the argument’s increased popularity. This preliminary study examines the impact of the international contextual argument against the death penalty on the opinion of 216 adult American students at a public university in California. The results of this study suggest that student support for the death penalty was decreased by exposure to international contextual information. The research presented in this paper is intended to encourage further investigation into the possibility that American public opinion may be significantly affected by international context.     

The Tension Between State Interests and Municipal Zoning Rights in the Realm of Fracking Regulations

This article examines whether local municipalities should have the capability to exercise their home rule authority to ban fracking within their jurisdiction, or whether state law should preempt such acts. The Court of Appeals of New York has found that individual municipalities do have the authority to ban fracking, while the Supreme Court of Colorado recently upheld a district court decision that held that the state's Oil and Gas Conservation Act preempted a town's ability to declare an outright ban. These divergent positions could lead to interesting legal battles as natural gas continues to play a larger role in energy portfolios, while public health concerns grow.     

Closing the Floodgates on Privacy Class Actions: Lloyd v Google LLC

In Lloyd v Google LLC [2021] UKSC 50, the Supreme Court overturned the Court of Appeal's decision, which had allowed a claim under the Data Protection Act 1998 to proceed as a representative action under CPR 19.6. This is significant because the Court of Appeal's decision arguably paved the way for further data protection/privacy claims to be brought as opt-out ‘class actions’ using this procedure. This case note summarises the Supreme Court decision and assesses its implications for both the procedural law of collective redress and the substantive law of privacy in England. It argues that the Supreme Court's reasoning in relation to both of these areas is sound as a matter of precedent and statutory construction. As a matter of public policy, the decision is likely to re-enliven debate about the availability of collective redress in English law and whether the existing collective proceedings regime should be broadened.     

Dissent,Legitimacy, and Public Support for Court Decisions: Evidence from a Survey‐Based Experiment

Scholars often argue that whereas unanimous rulings should boost public support for court decisions, dissents should fuel public opposition. Previous studies on public responses to U.S. Supreme Court decisions suggest that unanimity does in fact bolster support. However, a recent study has also found that dissents may increase support among opponents of a court decision by suggesting evidence of procedural justice. By examining how individuals react to dissents from the Supreme Court of Norway, this article is the first study outside the U.S. context of the public's reaction to unanimity and dissent. Breaking with the common notion of the negative effects of dissent on public support, the article shows that when the Supreme Court handles cases of higher political salience, the formulation of dissenting opinions can be a meaningful way of securing greater support for its policy outputs by suggesting evidence of procedural justice. Contrary to recent studies, however, this positive influence of dissent is irrespective of individuals' ex ante policy views.     

A Riddle Whose Answer is ‘Tort’: A Reassessment of International News Service v Associated Press

The decision of the US Supreme Court in International News Service v Associated Press (1918) has variously been interpreted as recognising a ‘quasi‐property’ right in ‘valuable intangibles’, such as hot news; as turning on unjust enrichment; or as creating a novel tort of unfair competition by misappropriation. It is suggested that the case is more authentically understood as an incidental result of a process by which the Supreme Court extended the boundaries of tort liability, and the corresponding scope of property protection, in a series of decisions against organised labour. The argument is pursued with reference to the prima facie tort theory of Oliver Wendell Holmes, the American ‘labour injunction’, and the labour law record of the author of the majority opinion in International News, Justice Mahlon Pitney.     

Kids are Different: The United States Supreme Court Reforms Youth Sentencing Practices for Youth Prosecuted in the Criminal Justice System

In a series of decisions issued between 2005‐2016, the United States Supreme Court relied on emerging scientific research detailing the developmental differences between children and adults to revamp its juvenile sentencing jurisprudence under the Eighth Amendment. The research established that youth’s developmental immaturity reduces their culpability for their criminal conduct, while also demonstrating their heightened capacity for change and rehabilitation. The Court focused on the most extreme sentences for youth, banning the imposition of the death penalty on youth under the age of eighteen in Roper v. Simmons (2005), and severely limiting the availability of life without parole sentences even for youth convicted of murder, in Graham v Florida (2010) and Miller v Alabama (2012). This article traces the Court’s evolution in reviewing sentences for youth in our justice system, and considers how the Court’s reasoning in these cases may influence further reforms in the justice system’s treatment of youth looking ahead.     

The (Dis)Advantage of Certainty: The Importance of Certainty in Language

How can legal decision makers increase the likelihood of a favorable response from other legal and social actors? To answer this, we propose a novel theory based on the certainty expressed in language that is applicable to many different legal contexts. The theory is grounded in psychology and legal advocacy and suggests that expressing certainty enhances the persuasiveness of a message. We apply this theory to the principal–agent framework to examine the treatment of Supreme Court precedent by the Federal Courts of Appeal. We find that as the level of certainty in the Supreme Court's opinion increases, the lower courts are more likely to positively treat the Court's decision. We then discuss the implications of our findings for using certainty in a broader context.     

The Heathrow Case in the Supreme Court: Climate Change Legislation and Administrative Adjudication

In R (on the application of Friends of the Earth Ltd and others) v Heathrow Airport Ltd the UK Supreme Court allowed an appeal against the Court of Appeal's decision that there had been a series of legal errors in the designation of the Airport National Policy Statement. This case note analyses the case from an ‘internal’ doctrinal perspective and argues that the Supreme Court could have engaged more explicitly with the legal issues that arise from climate change legislation for administrative law adjudication. For courts to adjudicate well in such circumstances they need to be prepared to develop administrative law doctrine, particularly in light of the issues of integrating climate change into public decision-making and of scientific/policy uncertainty which lie in the background of climate change legislation.     

Delfi AS v Estonia: The Liability of Secondary Internet Publishers for Violation of Reputational Rights under the European Convention on Human Rights

In October 2013, the European Court of Human Rights in Delfi AS v Estonia upheld a decision of the Estonian Supreme Court to impose liability on the owners of an internet news portal for defamatory comments which had been posted on their website by anonymous third parties. This note suggests that the decision is important in the context of publications with a ‘public interest’ element to them, because it appears to afford more protection to the right to reputation (deriving from the Article 8 right to privacy) and less to freedom of expression than was formerly the case. It is further argued that the Court's emphasis on the positive obligation of states to protect this right to reputation may mean that the existing English law in this area, including, potentially section 5 of the Defamation Act 2013, is inconsistent with the ECHR jurisprudence.     

Equal Civil Partnerships,Discrimination and the Indulgence of Time: R (on the application of Steinfeld and Keidan) v Secretary of State for International Development

In R (on the application of Steinfeld and Keidan) v Secretary of State for International Development the Supreme Court unanimously declared that the ban on different‐sex civil partnerships was incompatible with Articles 8 and 14 of the European Convention on Human Rights. In a strikingly robust and, at times, acerbic manner, the Court systematically dismantled the Secretary of State's request for tolerance of a discriminatory and unsustainable legal position. The decision represents a clear victory for those campaigning for reform and the issuing of a declaration of incompatibility by the Court is likely to have influenced the later announcement by Prime Minister Theresa May in October 2018 that different‐sex civil partnerships will ultimately be introduced in England and Wales.     

The Arendtian Dread: Courts with Power

Hannah Arendt was fearful not only of a populist President speaking in the name of the people and unbound by legality. She was also concerned that popular support could be harnessed by those responsible for limiting it. In other words, she was fearful of the American Supreme Court relying on popular support. This is the meaning of her obscure depiction of the American Supreme Court as “the true seat of authority in the American Republic” but unfit to power. I argue that Arendt's characterization of authority as requiring “neither coercion nor persuasion” means that the Court's source of legitimacy is expertise rather than public support. Yet the current dominant understanding among American Justices as well as scholars is that public support is the source of the Court's authority. In Arendt's mind, such an understanding means that the Court has become the seat of power. The corruption of the Court's authority and constitutional law as a language of expertise capable of resisting public opinion will inevitably follow.     

The ex turpi causa principle in Hounga and Servier

In Hounga v Allen the majority of the Supreme Court employed a test for the application of the ex turpi causa defence involving the balancing of public policy arguments for and against allowing the defence. Although this has attracted some early academic support, this note will argue it is inconsistent with authority and principle. The later decision in Servier v Apotex does not address the Hounga decision directly but strongly endorses a more conservative approach to the ex turpi causa principle. The resulting tension between these two Supreme Court decisions is likely further to destabilise the law in this area. This note advances arguments in favour of the Servier approach, summarises both decisions in terms of their consistency with authority and considers the ways in which Servier may have limited the effects of Hounga.     

Dolly and Alice

The opinion of the United States Court of Appeals for the Federal Circuit, In re Roslin Institute, rejecting patent claims to mammals cloned from somatic cells, was rendered about a month before the United States Supreme Court''s decision in Alice Corp. v. CLS Bank International. The Alice opinion explicitly sets out the standard for determining whether an invention falls within statutory patentable subject matter. Thus one is thus left to wonder what the Roslin opinion might have looked like had it been decided only a few weeks later, after the Alice decision was published, with the benefit of the Supreme Court''s further direction on patentable subject matter. In this essay I explore whether in hindsight the Alice standard might have dictated a different outcome in Roslin, suggesting how the two-part test articulated by the Supreme Court in Alice might apply to a ‘products of nature’ analysis for cloned mammals. Drawing on that analysis, I then use the Roslin case as a vehicle to highlight certain issues with the Supreme Court''s current subject matter jurisprudence as applied to biotechnology. By juxtaposing Dolly with Alice, it becomes clear that the Supreme Court has revivified a number of dormant biotechnology patent problems in the guise of subject matter analysis.     

Measuring Reed’s Reach: Content Discrimination in the U.S. Circuit Courts of Appeals After Reed v. Town of Gilbert

Commentators and justices on the Supreme Court of the United States speculated when the Court delivered its opinion in Reed v. Town of Gilbert in 2015 that the case would dramatically reshape First Amendment law. This article analyzes Reed’s impact to date in the United States Circuit Courts of Appeals. The article demonstrates that, although Reed has been consequential in some circuits, it has not been the basis of any First Amendment revolution. Indeed, the research supports the conclusion that many circuit courts seem to be actively working to narrow Reed’s reach. Moreover, the article concludes that Reed did little to clarify — and in some ways made worse — what has been a problematic doctrine for decades.     

Tobacco sampling, public policy and the law

Cigarette and snuff sampling is a rapidly growing form of tobacco promotion. This article advocates prohibiting tobacco sampling in view of the unique public health risk provoked by sampling. Smokers begin their smoking careers as children, and children are recipients of tobacco samples. Sampling encourages tobacco experimentation, which often produces an addiction similar to morphine and cocaine; the public is generally unaware of the extreme risk of addiction. A recent Supreme Court opinion (Posadas) makes it clear that cigarette advertising can be outlawed. Furthermore, Congress, through the Cigarette Labeling and Advertising Act and Smokeless Tobacco Education Act, has not preempted or removed the power of states to ban sampling.     

Remedies for Breach of Trust

The decision of the Supreme Court in AIB Group (UK) Plc v Mark Redler & Co confirms the approach taken by Lord Browne‐Wilkinson in Target Holdings Ltd v Redferns: where a trustee misapplies trust assets, a beneficiary is limited to a claim for equitable compensation for losses caused by the trustee's breach of duty. This seems to be a departure from traditional equitable doctrine, which held that the beneficiary could falsify the trustee's unauthorised disbursement and bring a claim for an ‘equitable debt’. This note considers the impact of the decision of the Supreme Court, and how the law regarding ‘equitable compensation’ might continue to develop.