The European Court's political power

The European Court has emerged as one of the most powerful political institutions in the European Union and the most influential international court in existence. National courts are the linchpins of the European legal system, making European Court decisions enforceable and creating an independent power base for the European Court. This article examines why national courts agreed to take on a role enforcing European law supremacy against their own governments and why national politicians did not stop an institutional transformation of the European legal system which greatly compromised national sovereignty. Competition between lower and higher national courts, each trying to enhance their influence and authority vis‐à‐vis each other, explains how national legal interpretive barriers and high‐court ambivalence regarding the European Court's declaration of European Law Supremacy was overcome. Politicians proved unable to reverse national court acceptance of European law supremacy, and institutional rules kept politicians from sanctioning either national courts or the European Court for judicial activism. Legal doctrine became a form of institution‐building, and a mechanism to make international law enforceable was created, giving the European Court the ability to make unpopular decisions and to compel compliance with European law.     

Strategic Defiance and Compliance in the U.S. Courts of Appeals

Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we formulate a theoretical framework based on current principal‐agent models of the judiciary. We use the framework to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the U.S. Courts of Appeals. When the contemporary Supreme Court is ideologically estranged from the enacting Supreme Court, lower courts treat precedent much more harshly. Controlling for the ideological distance between the enacting and contemporary Supreme Courts, the preferences of the contemporary lower court itself are unrelated to its behavior. Hence, hierarchical control appears strong and effective. At the same time, however, a lower court's previous treatments of precedent strongly influence its later treatments. The results have important implications for understanding legal change and suggest new directions for judicial principal‐agency theory.     

The Federal Judiciary and Northern School Desegregation: Law, Politics, and Judicial Management

Using a three-tier analysis, this article examines how the interplayof political and legal factors has influenced the developmentof school desegregation policy in Michigan and Ohio. The authorconcludes, among other things, that the district courts, theSixth Circuit Court of Appeals, and the U.S. Supreme Court aresensitive to the influences of politics and legalism, but thatthe responses of the three kinds of federal courts are different.Recognizing a constitutional imperative to eradicate segregation,district courts have emphasized the participation of electedofficials and affected community groups in the remedial process.Because of isolation and low visibility, the Sixth Circuit hastended to pursue a more tenacious policy course than eitherthe district court or the Supreme Court. Meanwhile, the U.S.Supreme Court has generally championed the cause of local officialsby attempting to balance the interest of eliminating segregationwith that of protecting the integrity of state and local decisionmakers.     

Fair Housing After “Big Government”: How Tax Credits Are Reshaping the Legal Fight Against Racial Segregation

ABSTRACT

In June 2015, the Supreme Court ruled, in a 5–4 split decision, that facially neutral state policies and practices that unintentionally segregated minorities could violate the Fair Housing Act. This article draws on the Texas fair housing litigation to engage broader debates on fair housing as a legal framework, and its potential for disrupting or transforming patterns of structural inequality. Specifically, it examines how shifts in the ways that society designs and implements housing policies may encourage courts, advocates, and legal actors to think about fair housing issues in new ways. Moving beyond the emphasis on disparate impact, my findings elaborate on two mostly overlooked ways that LIHTC reshapes the legal battleground in the fight for fair housing, by opening contentious debate on (a) the state level of government, and (b) passive government administration of policies. I interpret these effects as unintended consequences of the gradual shift toward market-driven policies that allow officials to govern at a distance.     

The Norwegian Supreme Court and Equitable Considerations: Problematic Aspects of Legal Reasoning

Legitimacy, confidence and autonomy in the court system are dependent on people trusting the institution to make decisions based on predefined legal rules. Simultaneously, confidence in the system is also dependent on the system's capability to adjust to changes in values in society. The Norwegian courts appear to be increasingly basing their rulings on ‘equitable considerations’. This involves the making of decisions by reference not only to predefined rules – as expressed in structures or pre‐existing legal practice – but also to policy considerations such as utility and fairness. Judicial decisions made with reference to political considerations imply that the courts are arrogating a role that democratic theory reserves for legislators. What happens when ‘equitable considerations’ play a large part in the decisions of the Supreme Court? Does the institution have capabilities and mechanisms that sustain such a judicial practice as a legitimate form of law enforcement? I argue that the capability to adjust to changes in society only seems possible if the judges act beyond the domain of traditional judicial competence. Through different kinds of mechanisms, elements of ‘equitable considerations’ over time become hidden and difficult to grasp. On the one hand, this makes it possible for the Supreme Court to sustain a judicial practice as a legitimate form of law enforcement, but simultaneously it creates problems of confidence and legitimacy because the premises for the decisions are not explicated.     

Ideological Competition and Conflict in the Judicial Hierarchy

Circuit splits, or conflicting rules across multiple U.S. Courts of Appeals, have important policy implications and dramatic effects on Supreme Court case selection, yet we know little about the incentives ideological lower courts face when deciding whether to initiate conflict. This article develops a formal model of a judicial hierarchy where lower court judges are subject to review by a high court with distaste for unresolved conflict, termed “split-intolerance,” and with uncertain preferences over policy. Lower courts may compete by investing costly effort in legal quality to make their rules more attractive. In equilibrium, lower courts may initiate conflict even when the odds of success before the high court are remote. Surprisingly, lower courts grow more likely to create conflict as the high court's split-intolerance increases; however, split-intolerance can also incentivize greater lower court effort. I present qualitative evidence illustrating the model's explanatory power.     

Judges as agents of social change: Can the courts break the affordable housing deadlock in metropolitan areas?

Abstract

Nowhere is the chasm between the races more apparent than in the physical division of metropolitan areas between inner‐city poverty and suburban affluence. Thus far, public policy efforts to introduce metropolitan perspectives into local land use regulations have been unsuccessful. The series of New Jersey Mount Laurel decisions lays out a possible path for introducing comprehensive regional planning by deploying the constitutional power of state courts. Relying on the allied professions of economics and city planning, the New Jersey Supreme Court eliminated the legal barriers to affordable housing in the suburbs.

Questions have been raised over courts’ ability to reform local government powers, but many traditional objections to the effectiveness of judicial reform seem to have been overcome in the New Jersey litigations and legislations. State courts can play an indispensable role in solving regional land use problems if they secure the support of community leadership groups.     

Partisans in Robes: Party Cues and Public Acceptance of Supreme Court Decisions

The public perceives the Supreme Court to be a legal institution. This perception enables the Court's legitimacy‐conferring function, which serves to increase public acceptance of its decisions. Yet, the public acknowledges a political aspect to the Court as well. To evaluate how the public responds to the different images of the Supreme Court, we investigate whether and how depictions of specifically partisan (e.g., Republican) Court rulings shape public acceptance of its decisions while varying institutional, legal, and issue characteristics. Using survey experiments, we find that party cues and partisanship, more so than the imprimatur of the Court, affect public acceptance. We also find that polarization diminishes the effect of party cues. Attributing a decision to the Court does little to increase baseline acceptance or attenuate partisan cue effects. The Court's uniqueness, at least in terms of its legitimacy‐conferring function, is perhaps overstated.     

The Nature of Legal Change on the U.S. Supreme Court: Jurisprudential Regimes Theory and Its Alternatives

Jurisprudential regimes theory (JRT) posits that legal change on the U.S. Supreme Court occurs in a drastic, structural‐break‐like manner. Methodological debates present conflicting evidence for JRT, which has implications for the important law versus ideology debate. We confront this debate by first elaborating two alternative theoretical perspectives to JRT—evolutionary change and legal stability. Our analytical framework focuses on two key substantive effects of jurisprudential categories on the Court's case outcomes—relative differences between categories over multiple time periods and longitudinal differences across time periods. Importantly, different pieces of empirical evidence can provide support for different dynamic processes. The extent to which “law matters” is not necessarily tied to one particular model of legal change. Empirical analysis of updated and backdated free expression data generates key findings consistent with JRT, legal stability, and evolutionary change. We discuss the implications of the results for understanding legal change and legal influence.     

Is the government exhausting its powers? An empirical examination of eminent domain exercises in New York City pre- and post-Kelo

A controversial U.S. Supreme Court decision in Kelo v. City of New London (2005) which did not limit the use of state's eminent domain powers, led to an unprecedented legislative reaction by almost all 50 states. Of all, New York State stands out as one of the single states not to respond with a legislative amendment. In this study, I ask whether the state's predation was greater in the years following these legal and political developments, in light of the freedom which was granted to local politicians by both the Supreme Court and the state's legislators. The article hypothesizes that contrary to common perceptions, judicial decisions impact local government actions even when no limits on the use of powers are being posed. I use rigorous statistics and scrupulously defined data to expand scholarly understanding of the aftermath of the judicial decision in Kelo. The main finding is that the decision has in fact affected political behavior, but in the opposite direction than commonly expected: politicians in New York City acted consistently with public opinion, which was hostile too Kelo, not by changing the law, but by changing their practice. Studying all known taking exercises in New York City between 1991 and 2019, the paper finds no increase in the number of development projects involving condemnations after 2005. In fact, the probability of a taking for economic development or urban renewal dropped by 90%. The use of eminent domain for such projects declined even when both state and federal courts refrain from interposing any actual limit on its use. The paper lends qualified support to an alternative assertion that takings decisions by government officials are largely shaped by planning and political needs and that officials are sensitive to revealed public preferences even when there is no constitutional or legal impediment on their exercise of power.     

Macro Implementation: Testing the Causal Paths from U.S. Macro Policy to Federal Incarceration

Policy implementation is usually studied at the micro level by testing the short‐term effects of a specific policy on the behavior of government actors and policy outcomes. This study adopts an alternative approach by examining macro implementation—the cumulative effect of aggregate public policies over time. I employ a variety of methodological techniques to test the influence of macro criminal justice policy on new admissions to federal prison via three mediators: case filings by federal prosecutors, conviction rates in federal district courts, and plea bargaining behavior. I find that cumulative Supreme Court rulings influence the incarceration rate by altering conviction rates in district courts; however, I find only mixed evidence of congressional and presidential influence. The results suggest that U.S. macro policy influences bureaucratic outputs by altering the behavior of subordinate policy implementers; however, the Supreme Court may enjoy an advantage in shaping criminal justice policy.     

Models of Post-Incorporation Judicial Review: 1985 Survey of State Constitutional Individual Rights Decisions

In 1985 state supreme courts issued the largest number of decisionsto date in which protections of individual rights were basedupon provisions of state constitutions. With increasing frequency,state high courts have held that certain constitutional minimumsof rights protection set by U.S. Supreme Court interpretationsof the U.S. Constitution do not satisfy more demanding preceptsof state constitutional law. Although much of this activityremains reactive rather than systematic, there has been a slightmove toward greater systematic analysis. Furthermore, statecourt decisionmaking can be understood in terms of five modelsthat reflect judicial perceptions of varying degrees of equivalenceor nonequivalence between rights provisions in the U.S. Constitutionand state constitutions. At the same time, however, the U.S.Supreme Court has clearly indicated an interest in monitoringthe individual rights decisions of state high courts, whilelower federal courts have begun to place greater reliance onstate constitutional law to preclude U.S. Supreme Court review.     

Former Nazi's extradition from Canada raises interesting legal issues

The Appeal Court of the Ontario Supreme Court adopted a far‐reaching interpretation of the customary rules governing the application of the laws of extradition in international law.     

Supreme Court Litigants and Strategic Framing

Although litigants invest a huge amount of resources in crafting legal briefs for submission to the Supreme Court, few studies examine whether and how briefs influence Court decisions. This article asks whether legal participants are strategic when deciding how to frame a case brief and whether such frames influence the likelihood of receiving a favorable outcome. To explore these questions, a theory of strategic framing is developed and litigants' basic framing strategies are hypothesized based on Riker's theory of rhetoric and heresthetic as well as the strategic approach to judicial politics. Using 110 salient cases from the 1979–89 terms, I propose and develop a measure of a typology of issue frames and provide empirical evidence that supports a strategic account of how parties frame cases.     

NEW FEDERALISM, OLD REMEDIES, AND CORRECTIONS POLICYMAKING

Corrections litigation is changing, but new case law does not authorize a wholesale cutback of prisoner constitutional rights. Supreme Court cases urge a return to traditional compensatory damages as the remedy for unconstitutional acts and conditions. Monitoring of state correctional performance by federal courts is disfavored. The author believes that basic rights of prisoners will remain protected, but that systematic planning and exemplary programs will erode. Under the money damages model, legal reform should thus urge waiver of the state sovereign immunity provided by the Eleventh Amendment.     

REGULATION OF THE FREE-ADVERTISING AND THE FIRST AMENDMENT

The "new" line between communications that have full First Amendment protection and those that are subject to regulation is still in the process of being delineated by the Supreme Court; legal and mass a communication scholars are proposing a plethora of tests for future cases. Rather than proposing yet another test, this article starts from the premise that future advertising regulation cases will be based on legal philosophy and judicial "world view" as well as law and precedent. First Amendment law and advertising regulation concerns have historically been based on two different concerns and perspectives that have only recently been seen to interact. This article charts a perspective on the differences in the legal, philosophical and historical roots of these two areas, shows how and why they are now seen as interrelated and attempts to give some insight into possible future legal directions in this area.     

Human Rights in US Courts: Alien Tort Claims Act Litigation after Sosa v. Alvarez-Machain

In Filartiga v. Pena-Irala (1980), the Second Circuit Court of Appeals ruled that victims of human rights violations could sue their oppressors civilly in US courts under an eighteenth century law now called the Alien Tort Claims Act (ATCA). Controversy raged over the Filartiga decision and the proper interpretation of the ATCA for 24 years. Then in Sosa v. Alvarez-Machain (2004), the Supreme Court issued its first ATCA decision. This essay analyzes the effect of the Sosa decision on the development of human rights law in US courts. I find that while the federal judiciary is responding to some of the Supreme Court’s directives, lower courts still retain a great deal of discretion in handling ATCA cases.

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The Institutionalization of the U.S. Supreme Court

In pursuing their goals, members of the U.S. Supreme Court areaffected by their institutional setting. How has that institutionalenvironment changed over time and what have been the politicalconsequences of those changes? Despite considerable analysisof the institutional dynamics of legislatures and executives,political scientists have been slow to bring time series techniquesto the study of the Supreme Court, and as a result much lessis known about its evolutionary path. Measuring a variety oforganizational characteristics, I construct an index of theinstitutionalization of the Supreme Court from 1790 to 1996.This indicator suggests that the integration of the Court intothe system of federal policy making has better enabled the justicesto satisfy their objectives. To demonstrate this empirically,I test a series of error correction models of judicial influence,each of which confirms that the nature of the Supreme Court'scharacter has had considerable implications for the scope ofthe justices' legal and political impact. These results underscorethe need for judicial scholars to examine the Court's policymaking in longitudinal perspective.     

State Sovereignty and the Eleventh Amendment in the U.S. Supreme Court: The 1988 Term

During its 1988 term, the U.S. Supreme Court addressed two importantaspects of the Eleventh Amendment, which generally protectsstates from being sued in federal courts. First, the Court heldthat the Congress has power to abrogate states' immunity fromsuit—to subject states to suits in federal courts fordamages—under Congress' expansive commerce-clause power.Second, the Court made clear that such abrogation would be foundonly where the text of the statute itself, as distinct fromits legislative history, clearly and specifically so provided.This article describes these decisions, and analyzes some oftheir implications for judicial federalism.     

The Legal Order and the Administration of Federal and State Courts

The Nigerian Constitution of 1989 establishes a system of federaland state courts, but within a structure of unified federal-statejurisdiction from the federal and state high courts, to thefederal Court of Appeal, and to the national Supreme Court.Thus, both sets of courts exercise jurisdiction with respectto federal and state laws. Although this system mitigates certainfederal-state jurisdictional conflicts, it does not eliminatesuch conflicts. At the same time, however, the Constitutionalso provides for Sharia courts of appeal under Moslem law andfor customary-law courts of appeal, thus establishing a tripartitesystem of justice. Although this system seeks to accommodateNigeria's ethnic and religious diversity, it does raise problemsfor national unity, judicial uniformity, and equity in the administrationof civil and criminal justice.