Judicially Active
Before (and After) Roe v. Wade: New Questions About Backlash
Linda Greenhouse & Reva Siegel
Yale Law Journal, June 2011, Pages 2028-2087
Abstract:
Today, many Americans blame polarizing conflict over abortion on the Supreme Court. If only the Court had stayed its hand or decided Roe v. Wade on narrower grounds, they argue, the nation would have reached a political settlement and avoided backlash. We question this court-centered backlash narrative. Where others have deplored the abortion conflict as resulting from courts "shutting down" politics, we approach the abortion conflict as an expression of politics-a conflict in which the Supreme Court was not the only or even the most important actor. In this essay, we ask what escalation of the abortion conflict in the decade before the Supreme Court decided Roe might teach about the logic of conflict in the decades after Roe. To do so, we draw on sources we collected for our recently published documentary history, Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court's Ruling (2010). We begin our story at a time when more Republicans than Democrats supported abortion's decriminalization, when Catholics mobilized against abortion reform but evangelical Protestants did not, when feminists were only beginning to claim access to abortion as a right. We show how Republicans campaigning for Richard Nixon in 1972 took new positions on abortion to draw Catholics and social conservatives away from the Democratic Party. Evidence from the post-Roe period suggests that it was party realignment that helped escalate and shape conflict over Roe in the ensuing decades. The backlash narrative suggests that turning to courts to vindicate rights is too often counter-productive, and that adjudication is to be avoided at all costs. We are not ready to accept this grim diagnosis at face value, and we urge further research into the dynamics of conflict in the decades after Roe. The stakes in understanding this history are high.
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Constitutional Design in the Ancient World
Adriaan Lanni & Adrian Vermeule
Stanford Law Review, forthcoming
Abstract:
This paper identifies two distinctive features of ancient constitutional design that have largely disappeared from the modern world: constitution-making by single individuals and constitution-making by foreigners. We consider the virtues and vices of these features, and argue that under plausible conditions single founders and outsider founders offer advantages over constitution-making by representative bodies of citizens, even in the modern world. We also discuss the implications of adding single founders and outsider founders to the constitutional toolkit by describing how constitutional legitimacy would work, and how constitutional interpretation would be conducted, under constitutions that display either or both of the distinctive features of ancient constitutional design.
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Hierarchical and Collegial Politics on the U.S. Courts of Appeals
Jonathan Kastellec
Journal of Politics, April 2011, Pages 345-361
Abstract:
Do hierarchical politics in the federal judiciary shape collegial politics on the U.S. Courts of Appeals and thus influence judicial voting and case outcomes? I develop a model in which the political control of the dual layer of hierarchy above three-judge panels - full circuits and the Supreme Court - affects the ability of a single Democratic or Republican judge on a three-judge panel to influence two colleagues from the opposing party. The theory predicts that panel majorities should be more strongly influenced by a single judge of the opposing party - a "counter-judge" - when that judge is aligned with the Supreme Court. Examining thousands of judicial votes in multiple issue areas, I show that the effect of adding a counter-judge to a panel is indeed asymmetric, and varies based on hierarchical alignment. The interaction of hierarchical and collegial politics increases the Supreme Court's control of the judicial hierarchy and helps promote the rule of law.
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Panel Composition and Voting on the U.S. Courts of Appeals over Time
Jonathan Kastellec
Political Research Quarterly, June 2011, Pages 377-391
Abstract:
This article investigates two issues unexplored in studies of the relationship between panel composition and voting on three-judge panels of the Courts of Appeals: how often will panel composition influence case outcomes, and how has the relationship between panel composition and panel voting changed over time? The author shows that while long stretches of single-party control of the presidency in the first half of the twentieth century often produced a high rate of panels with three judges from the same party, frequent turnover of White House control in the past half century has helped ensure that a majority of panels are composed of at least one judge from each party. The author also presents the first systematic longitudinal analysis of panel composition and judicial behavior, showing that the relationship between the two is a relatively recent phenomenon. These findings have important implications for understanding collegial behavior on the Courts of Appeals.
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Matthew Hegreness
Yale Law Journal, May 2011, Pages 1820-1884
Abstract:
Since the ratification of the Fourteenth Amendment in 1868, judges and scholars have struggled to coherently identify the rights, privileges, and immunities that no state should abridge. Debates over the ambit of the Fourteenth Amendment, however, have consistently overlooked a crucial source that defines the fundamental civil liberties of American citizens. The Northwest Ordinance of 1787 contains in its Articles of Compact a set of rights that constituted the organic law-the fundamental law-of the United States. Rather than limiting federal power like the Bill of Rights, the Northwest Ordinance enumerates those rights that no state shall abridge. Not only should these rights qualify for protection under the Due Process Clause of the Fourteenth Amendment, but they also give substance to the terms "privileges" and "immunities" as used and understood by Americans throughout the nineteenth century. This Note chronicles how the rights in the Northwest Ordinance spread, through various acts of Congress, from the Northwest Territory to all corners of the United States. These rights were integral to the organic law of twenty-eight of the thirty states (a supermajority) that ratified the Fourteenth Amendment by 1868. In addition, the admission of new states into the Union was often predicated on two conditions that state constitutions had to satisfy: they had to be republican and not repugnant to the principles of liberty in the Northwest Ordinance. Once they acquired statehood, however, new states were free to change their constitutions and violate the fundamental civil rights enumerated in the Ordinance. It is this defect in the organic laws of the United States that the Fourteenth Amendment was designed to repair, and it is to the Northwest Ordinance that we must look to understand the rights protected by the Fourteenth Amendment.
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Guns, Fruits, Drugs, and Documents: A Criminal Defense Lawyer's Responsibility for Real Evidence
Stephen Gillers
Stanford Law Review, April 2011, Pages 813-868
Abstract:
A criminal defense lawyer may need to read a document, test a weapon, or analyze a substance in order to advise a client. Or there may be no such need but a client may show up at a law office with an illegal weapon, contraband, or stolen property. In either event, what should a lawyer do with the item following any evaluation? What should she do if her client reveals where a weapon, contraband, or stolen property is hidden? Some cases say that a lawyer who receives or retrieves an item of real evidence must give it to the authorities after examining it. But because the item may implicate the client in a crime, the client may instead withhold it or the lawyer may refuse to accept it, even if the lawyer needs to evaluate it. Or a lawyer may choose not to retrieve a hidden item if she must then deliver it to the authorities. Other cases say that after evaluation, a lawyer may return an item to the source if possible. But is that the right rule when the item is stolen property, a dangerous weapon, or drugs? And what if return is not possible? This Article argues that the holdings of these cases, and secondary authorities that agree with them, are wrong. They impede the need for informed legal advice. They frustrate return of stolen property. And where the item is a weapon or drugs, they endanger public safety. This Article proposes solutions that avoid these results while protecting the legal rights of clients and the interests of law enforcement and the public.
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Reviving the Schoolmaster: Reevaluating Public Opinion in the Wake of Roe v. Wade
John Hanley, Michael Salamone & Matthew Wright
Political Research Quarterly, forthcoming
Abstract:
Many recent studies of the judiciary and public opinion adopt a model that views court decisions as aggravating division within the public. The authors question the image of Court as polarizer, arguing that the persuading influence of the U.S. Supreme Court is broader than contemporary authors acknowledge. Using a potential outcomes framework, the authors analyze public attitudes in response to the decision in Roe v. Wade, the original test case in Franklin and Kosaki's seminal article. The authors' evidence suggests that members of diverse groups who were aware of the Roe decision were more supportive of abortion than their decision-unaware counterparts.
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The Obama Administration's Evolving Approach to the Signing Statement
Todd Garvey
Presidential Studies Quarterly, June 2011, Pages 393-407
Abstract:
After utilizing constitutional signing statements with relative frequency during the first six months of his administration, President Obama issued only two such statements over the next 18 months, including a stretch of almost 16 months without a single constitutional signing statement. While it is unclear exactly how the administration will proceed, there is evidence to suggest that other interpretive mechanisms, such as opinions of the Office of Legal Counsel and Statements of Administration Policy, could potentially play an increased role as a partial substitute for the politically unpopular signing statement.
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Does the Rights Hypothesis Apply to China?
Cheryl Xiaoning Long
Journal of Law and Economics, November 2010, Pages 629-650
Abstract:
Using firm-level data from a World Bank survey, this paper examines how legal development in China relates to various firm decisions. I find that a more active court system is associated with more investment, more adoption of technology, more innovation, and more complex transactions. Specifically, when a higher percentage of business disputes are resolved through the court system, firms tend to have higher investment rates, higher propensities to adopt new automated technology, and higher probabilities of developing new products. In addition, they tend to have more nonlocal sales. These findings are consistent with a sophisticated version of the rights hypothesis, in which the rule of law eventually replaces relation-based governance as a superior governance mechanism. I find two limitations of China's legal system. The court system does a better job facilitating the growth of state-owned enterprises than of private firms, and it protects local firms better than nonlocal firms.
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Private Law Enforcement, Fine Sharing, and Tax Collection: Theory and Historical Evidence
Metin Coşgel, Haggay Etkes & Thomas Miceli
Journal of Economic Behavior & Organization, forthcoming
Abstract:
This paper contributes to the literature on private law enforcement by proposing a novel solution to the problem of underenforcement by monopolistic enforcers. Monopolistic enforcers underinvest in enforcement because they ignore the social benefits of deterrence. We show that this problem can be partially resolved by combining law enforcement with tax collection because a joint enforcer-collector will have an interest in reducing the crime rate in order to maximize his tax income. In support of the theory, we discuss two historical examples of this practice: decentralized law enforcement under European feudalism, and centralized law enforcement in the Ottoman Empire.
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In plain English: Avoiding recognized problems with Miranda miscomprehension
Richard Rogers et al.
Psychology, Public Policy, and Law, May 2011, Pages 264-285
Abstract:
The landmark case of Miranda v. Arizona (1966) affirmed that custodial suspects must be advised of their Constitutional rights; however, the language of Miranda warnings is not standardized, and marked variations continue to be observed across jurisdictions. Following Miranda, additional Supreme Court decisions-for example, Rhode Island v. Innis (1980), Duckworth v. Eagan (1989), and Florida v. Powell (2010)-have reflected a general trend towards greater flexibility in the designation of Constitutionally acceptable content. For example, the Court in Florida v. Powell (2010) held that two separately stated warning elements were sufficient - when interpreted together - to inform custodial suspects of their right to counsel during questioning. Beyond issues of general content, the particular vocabulary and terminology of some Miranda warnings may pose formidable obstacles to basic comprehension. In this regard, the current investigation sought to identify specific phrases and terms that are generally ineffective in informing pretrial defendants. Results indicate that certain ambiguous phrases and abstruse terms contributed substantially to insufficient comprehension of Miranda warnings. In addition, oral advisements led to much higher percentages of failed comprehension. In light of these findings, we present "plain English" Miranda phrases that appear understandable by most pretrial defendants, including persons with limited academic and cognitive abilities.
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Issa Kohler-Hausmann
Journal of Empirical Legal Studies, June 2011, Pages 413-447
Abstract:
Long-standing trial folklore holds that those counties with higher proportions of low-income and minority residents are places where tort plaintiffs are more likely to prevail in establishing the defendant's liability and to recover high damages. Although a handful of empirical legal studies have looked at this question, none have considered the possible role of a community effect of county income inequality. This article tests these propositions with hierarchical linear models of two types of tort trial outcomes-plaintiff success in establishing defendant liability and damage award-using a number of county-level predictors. The results show that no county-level variables measuring jury pool demographic composition or income inequality are associated with the odds of plaintiff success. However, both county poverty rate and income inequality are associated with increased levels of expected damages. The final section of this article offers a substantive theoretical discussion of why we might observe a relationship between community characteristics and tort trial outcomes.
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Public Opinion Regarding Juvenile Life Without Parole in Consecutive Statewide Surveys
Sheryl Pimlott Kubiak & Terrence Allen
Crime & Delinquency, July 2011, Pages 495-515
Abstract:
Abolition of the death penalty results in life without parole (LWOP) as the most severe sanction for convicted juveniles. Although internationally the use of LWOP for juveniles is rare, 2,225 youth have been sentenced to LWOP within the United States. To address the dearth of public opinion on the issue, the authors proposed questions to the survey administrators who then selected them for inclusion in two annual statewide surveys. They found that support for LWOP diminishes considerably when respondents are given a more complex array of sentencing options rather than a dichotomous choice to agree or disagree with the current policy. Those supporting LWOP are more likely to be younger, male, and White. These findings support the need for more nuanced and complex discussions and polling language, as well as policy alternatives.
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Jeffrey Ian Ross
International Criminal Justice Review, June 2011, Pages 156-168
Abstract:
Over the past two decades, the European Union, via the European Human Rights Commission, has prevented the extradition of certain individuals to the United States based on a limited number of exceptions. This article suggests that the time is ripe to use the argument that high levels of prison violence and poor medical care, violates Article 3 of the European Convention on Human Rights (hereafter European Convention), and Article 4 of the Charter of Fundamental Rights of the European Union (hereafter FREU). Additionally, the passage of the Prison Litigation Reform Act violates Article 13 of the European Convention and Article 47 of the FREU, and thus signatories to this document are well within their rights to block extradition to the United States. This legal defense however, does not prevent EU members from prosecuting and incarcerating individuals wanted by the United States in their own country once extradition proceedings have concluded.
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An Empirical Study of Court-Adjudicated Takings Compensation in New York City: 1990-2003
Yun-chien Chang
Journal of Empirical Legal Studies, June 2011, Pages 384-412
Abstract:
No empirical study on court-adjudicated condemnation compensation has been done in the past 30 years. To fill in the empirical gap, I first collect condemnation compensation cases in New York City between 1990 and 2003, finding that the court usually rules in favor of condemnors. Additionally, I use hedonic regression models and about 7,500 sales to estimate the fair market value (FMV) of 27 condemned properties and compare the FMV with condemnors' offered value, condemnees' claimed value, and court awards, finding that all condemnees' claims are above FMV, while many condemnors' offers and court awards are above FMV; moreover, condemnors' claims come closer to FMV than condemnees' claims and court awards. The court usually favors condemnors because condemnors have better incentives to produce unbiased assessed value and condemnors' offered value actually is closer to FMV. Offers, claims, and awards are inaccurate because bias-prone appraisal techniques have been used to assess property value.