Said and Unsaid: State Legislative Signaling to State Courts over Same Sex Marriage 1990–2004

From 1990 through 2004, same sex marriage emerged as a major policy issue. In responding to this controversial policy issue, many state legislatures demonstrated unusual behavior. A substantial minority of state legislatures continued to introduce new legislative bills on this topic long after the legal position of the respective state would indicate that the state had articulated a recognized and settled policy. In this article, we propose that the apparently aberrant behavior of these state legislatures can be explained in part by consideration of legislative signaling directed toward state courts. Specifically, we consider the attempt of state legislators to discourage intervention by the state courts around some policy issues.     

Speaking of Rights: The Influence of Law and Courts on the Making of Family Migration Policies in Germany

The impact of the judiciary on immigration policies has been simultaneously overestimated and underestimated. Migration scholars broadly assume that courts have forced liberal states to admit unwanted migration. Based on an analysis of family migration policy making in the Federal Republic of Germany (1975‐90), I show that the direct policy impact of court rulings was limited, as courts were reticent to impinge upon democratic sovereignty. However, the indirect impact of the courts was substantial. Political actors amplified the implications of rulings by interpreting the jurisprudence selectively and expansively. Thus, they turned speaking of rights into a powerful political resource.     

Youth Transfer Decisions: Exploring County Variations

In an effort to control violent and chronic juvenile offenders, many state legislatures have created statutes that give exclusive jurisdiction to adult criminal courts for certain violent offenses. Much research has been conducted on juvenile transfers, but relatively few studies rely on official and self‐report data to evaluate this process. By using data from four counties within Washington State, this study examines how legal, extra‐legal, and organizational variables impact waiver decisions. In cases where youths were selected for transfer proceedings, data from official records are used to compare transfers within and between counties. In addition, interview data with juvenile court personnel (e.g., juvenile court judges, probation officers, legal advisors) are used to assess the factors associated with transfer decisions. Policy implications are presented along with recommendations for future research.     

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.     

Citizen assessment of local criminal courts: Does fairness matter?

Public opinion about local court systems is an important area of scholarly inquiry that has received little empirical attention. This study utilized a survey implemented by the National Center for State Courts to examine the effect of perceptions of fairness (egalitarian and discriminatory) on respondent satisfaction with local court handling of criminal cases (violent criminal, drug, and juvenile delinquency). Findings from OLS regression analyses indicated that perception of both egalitarian and discriminatory fairness had an impact on respondent reported satisfaction with local court handling of criminal cases. The results of the analyses also suggested that instrumental concerns, in the context of perceptions that courts resolve cases in a timely manner, had a significant impact on public assessment of local criminal courts. By contrast, prior experiences with local courts and respondent demographic factors had little direct influence on respondent satisfaction with local criminal court handling of cases. Direction for future research and implications of the findings are discussed.     

Silverstein's Allure

Using multiple case studies, Gordon Silverstein's Law's Allure (2009) examines the many ways in which courts interact with other governing institutions. He convincingly argues that legal advocates fare best when they use the leverage created by courtroom victories to increase their influence in other arenas, particularly legislatures. His more ambitious effort to explain when court intervention improves rather than displaces politics is less successful. He favors using court decisions as battering rams to break through the institutional barriers created by our allegedly outmoded Constitution. Such an open-ended justification for judicial policy making places virtually no limits on the juridification that Silverstein decries for distorting democratic politics.     

Limitations on an employer's right to discipline and discharge employees

An employer's prerogative to discipline and discharge its employees has been substantially infringed by the courts, state legislatures, Congress, and governmental agencies. In its recent Materials Research decision, the National Labor Relations Board has expanded the Weingarten principle by limiting the employer's ability to conduct investigatory and disciplinary interviews of nonunion employees. In addition, state courts and legislatures have begun to scrutinize the grounds for an employer's discharge of an employee, and Congress has statutorily prohibited the discipline or discharge of employees who "blow the whistle" on their employers under certain circumstances. This article will evaluate recent developments in this area of law and explore their impact on an employer's right to discipline and discharge its employees.     

STATE SUPREME COURT APPLICATIONS OF TROXEL v. GRANVILLE AND THE COURTS' RELUCTANCE TO DECLARE GRANDPARENT VISITATION STATUTES UNCONSTITUTIONAL

In this article, the author reviews state supreme court applications of Troxel v. Granville , analyzing the impact of the decision on the courts' ongoing efforts to adjudicate visitation disputes between parents and grandparents. Set against a background of legislative recognition of grandparents' rights and judicial uncertainty regarding the appropriate role of nonparents in children's lives, Troxel reaffirmed the constitutional right of parents to direct their children's upbringing. The author argues that state supreme courts evaluating gradparent visitation statutes and seeking to enforce Troxel 's presumption in favor of parents should be more willing to strike down overly broad statutes. Such an approach would be a positive step toward addressing the excessive judicial discretion that the Troxel Court found so problematic, and would signal to state legislatures the need for statutes that both provide for the needs of children and protect parental rights.     

Patient confidentiality statutes in Medicare & Medicaid fraud investigations

The Medicare and Medicaid programs have been burdened with health care providers' fraudulent and abusive practices since their implementation in 1965. To help states discover and prevent Medicare and Medicaid fraud, Congress has enacted statutes permitting access to patients' medical records in investigations of fraud. The majority of states have enacted physician-patient and psychotherapist-patient privilege statutes to protect confidential information from disclosure. Thus, the state's need for patient information conflicts with the patient's right of privacy. This Note discusses several court decisions that have wrestled with the tension between these two policies. The courts, after balancing the state interest in eliminating fraud against the patient's privacy interest, have often allowed disclosure of patient medical records. Although some courts have attempted to limit the extent of the information disclosed, few have set forth explicit standards to protect patient records from unwarranted disclosure of confidential information. This Note suggests guidelines for courts, legislatures and health care providers to uniformly limit the extent of this disclosure.     

Stalemate in the States: Agenda Control Rules and Policy Output in American Legislatures

This article examines how the power of majority‐party leaders to set the legislative voting calendar influences policy change in American state legislatures. By generating an opportunity for party leaders to exercise gatekeeping or negative agenda control, such rules introduce an additional partisan veto player into a system of governance. This addition typically increases the size of the core or gridlock interval, which drives policy change downward. Using both traditional data on bill passage counts and new data on Affordable Care Act compliance, I find strong support for these claims. More specifically, when I calculate core sizes that are sensitive to agenda rules, I find that agenda‐control‐adjusted core size is negatively correlated with policy change, as expected. Moreover, even when I match states on their overall preference dispersion or polarization, the ability of party leaders to exercise negative agenda control is strongly negatively associated with policy change.     

Supreme Court Elections: How Much They Have Changed,Why They Changed,and What Difference It Makes

This essay draws on four recent studies of elections to state supreme courts in the United States to probe widely perceived changes in the scale and content of electoral campaigns for seats on state supreme courts. 1 Evidence from these studies and other sources indicates that changes have indeed occurred, though they are more limited than most commentaries suggest. These changes stem most directly from trends in state supreme court policy that have attracted interest‐group activity, especially from the business community. Like their extent, the effects of change in supreme court campaigns have been meaningful although exaggerated by many observers. What we have learned about changes in supreme court elections has implications for choices among selection systems, but those implications are mixed and complex.     

What's So Special about Specialized Courts? The State and Social Change in Salt Lake City's Domestic Violence Court

The nationwide growth in specialized or problem‐solving courts, including drug courts, community courts, mental health courts, and domestic violence courts, among others, raises questions about the role of the state with respect to social change. According to social control theories of the state, especially theories of technocratic or rationalized justice, law is increasingly about efficiency, speed, and effectiveness. Specialized courts, however, take on a social problem approach to crime, seeking to address crime's “root causes” within the individual, the society, and the larger culture in ways more characteristic of social movements. Are specialized courts about social control or social change? This study examines state action in a specialized court in domestic violence in order to examine this question. I focus on a domestic violence court that arose in February 1997 and four years later employed full‐time judges, prosecuting and defense attorneys, and numerous other staff to handle all misdemeanor domestic violence cases in Salt Lake County, Utah. I ask how legal, political, and community officials justify the court and its operation in order to examine some important issues about the role of the state and social change. Ultimately, I suggest that my findings about the complementary roles of social control and social change within domestic violence courts have implications not only for critical theories of technocratic justice and for the battered women's movement but also for democratic theories of the state.     

Public support for the courts: An examination of alternative explanations

Public opinion surveys consistently show that there are generally high levels of support for the court system. While there exists general public support for the courts, the most often heard criticism is that the courts are too lenient. The purpose of this study is to describe public attitudes toward the courts and examine a number of explanations of public support for, or against, the courts. The article examines five hypotheses: (1) respondents who are pro-punishment would not be supportive of the courts; (2) respondents who are supportive of the police and the correctional system would be supportive of the courts; (3) respondents who are supportive of the police would not be supportive of the courts; (4) respondents who identify themselves as conservative would not be supportive of the courts; and (5) respondents who express fear and/or concern about crime, and/or who have experienced victimization would not be supportive of the courts. It is found that members of the public express diffuse support for the courts, but criticism center around court leniency and plea bargaining. At least partial support is found for all five hypotheses with support for strong punitive sanctions the best predictor of attitudes toward the courts.     

Campaigning for the Bench: The Corrosive Effects of Campaign Speech?

A new era has emerged in the ways in which candidates for state judicial office campaign. In the past, judicial elections were largely devoid of policy content, with candidates typically touting their judicial experience and other preparation for serving as a judge. Today, in many if not most states, such campaigns are relics of the past. Modern judicial campaigns have adopted many of the practices of candidates for other types of political office, including soliciting campaign contributions, using attack ads, and even making promises about how they will decide issues if elected to the bench. Not surprisingly, this new style of judicial campaigning has caused considerable consternation among observers of the courts, with many fearing that such activity will undermine the very legitimacy of legal institutions. Such fears, however, are grounded in practically no rigorous empirical evidence on the effects of campaign activity on public evaluations of judicial institutions. The purpose of this article is to investigate the effects of campaign activity on the perceived legitimacy of courts. Using survey data drawn from Kentucky, I use both post hoc and experimental methods to assess whether public perceptions of courts are influenced by various sorts of campaign activity. In general, my findings are that different types of campaign activity have quite different consequences. For instance, policy pronouncements by candidates do not undermine judicial legitimacy, whereas policy promises do. Throughout the analysis, I compare perceptions of courts and legislatures, and often find that courts are far less unique than many ordinarily assume. I conclude this article with a discussion of the implications of the findings for the contemporary debate over the use of elections to select judges to the high courts of many of the American states.     

Institutional Paths to Policy Change: Judicial Versus Nonjudicial Repeal of Sodomy Laws

What variables lead judicial and nonjudicial decision‐making bodies to introduce policy change? In the theoretical framework proposed, the path‐dependent nature of law has a differential impact on courts and legislatures. Likewise, certain political institutions including elections and political accountability lead those bodies to introduce policy change under dissimilar circumstances. Global trends, however, affect both institutional paths equally. We test this theory with data for the repeal of sodomy laws in all countries from 1972–2002. Results from two disparate multivariate models overwhelmingly confirm our predictions. The unique institutional position of courts of last resort allows them to be less constrained than legislatures by either legal status quo or political accountability. Globalization, on the other hand, has a comparable effect on both. This work is path breaking in offering a theoretical framework explaining policy change via different institutional paths, systematically testing the framework comparatively and with respect to a policy issue still on the agenda in many countries.     

What works (or doesn't) in a DUI court? An example of expedited case processing

Purpose

A number of policy efforts have aimed to reduce drunk driving, including deterrence-based policies and specialized treatment courts. This study examines the impact of expedited court processing on the county-wide rate of DUI offenses. It also examines the links between sanction swiftness, certainty, and severity and changes in DUI rates over time.

Methods

This study uses interrupted time series analysis to assess changes in DUI rates in one county over a time period including the introduction of a full-coverage, expedited court docket for DUI. Additionally, the three components of deterrence were examined.

Result

Findings reveal that the program implementation corresponded with a lower rate of DUI case filings, but not with a general reduction in alcohol-involved collisions in the county. Additionally, only sanction swiftness improved over time, while certainty remained stable and severity declined.

Conclusions

Results indicate that the introduction of the expedited court docket does not appear to have produced a deterrent effect on DUI. It may be that DUI offenders require more than expedited processing to overcome the issues that precipitate their offending. Future research and policy should explore both the impact of swiftness of punishment and the provision of appropriate treatment services in addressing DUI offending.     

When Tokens Matter

Tokens, or low levels of minority or female representatives in state legislatures, have been studied with respect to their perceptions of self‐efficacy and political attitudes but not with respect to their actual influence on the passage of public policy. This paper uses state‐level data from the child support program between the years 1976–84 to measure the influence of women tokens on the policy process. Using ordered probit models, I explore policy adoption under three configurations: (1) a test of the independent impact of tokens, (2) a dynamic test of the differential impact of tokens and nontokens to analyze potential backlash effects and the potential diffusion of policy preferences, and (3) an interactive test on the potential for tokens to form coalitions. My analysis strongly suggests that tokens make a policy difference independently and to a greater extent than when they are on the cusp of becoming nontokens, but I found less support for the idea that tokens successfully form coalitions to achieve specific policy goals.     

Stone v. Powell: The impact on state appellate court judges' perceptions

This study addresses the question of whether the United States Supreme Court decision of Stone v. Powell, 428 U.S. 465 (1976), has had a significant impact on the highest level state appellate courts. The study centered around a survey sent to every member of the highest appellate court hearing criminal appeals in each of the fifty states. The major finding of the research was that Stone v. Powell can be viewed along two dimensions: a narrow, substantive dimension applying the case as a Fourth Amendment exclusionary rule decision, or a broader, policy dimension of judicial federalism. It appears that, for the most part, state supreme courts have chosen to apply Stone v. Powell along the narrow, substantive dimension. Thus, state supreme courts have not assumed the position of equal partners with the federal courts in assuring adequate and appropriate disposition of federal claims.     

The presentation of expert testimony via live audio-visual communication

As part of a national effort to improve efficiency in court procedures, the American Bar Association has recommended, on the basis of a number of pilot studies, increased use of current audio-visual technology, such as telephone and live video communication, to eliminate delays caused by unavailability of participants in both civil and criminal procedures. Although these recommendations were made to facilitate court proceedings, and for the convenience of attorneys and judges, they also have the potential to save significant time for clinical expert witnesses as well. The author reviews the studies of telephone testimony that were done by the American Bar Association and other legal research groups, as well as the experience in one state forensic evaluation and treatment center. He also reviewed the case law on the issue of remote testimony. He then presents data from a national survey of state attorneys general concerning the admissibility of testimony via audio-visual means, including video depositions. Finally, he concludes that the option to testify by telephone provides a significant savings in precious clinical time for forensic clinicians in public facilities, and urges that such clinicians work actively to convince courts and/or legislatures in states that do not permit such testimony (currently the majority), to consider accepting it, to improve the effective use of scarce clinical resources in public facilities.