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How does the Supreme Court choose among cases to grant cert? In the context of a model that considers a strategic Supreme Court, a continuum of rule-following lower courts, a set of cases available for revision, and a distribution of future lower court cases, we show that the Court grants cert to the case that will most significantly shape future lower court case outcomes in the direction that the Court prefers. That is, the Court grants cert to the case with maximum salience. If the Court is rather liberal (conservative) then the most salient case is the one that moves the discretionary range of the legal standard as far left (right) as possible. But if the Court is moderate, then the most salient case will be a function of the skewedness of the distribution of ideologies of the lower courts and the likelihood that future cases will fall within the part of the discretionary range that is adjusted if the case is granted cert. Variations take place when the ideology of the Court is moderately liberal, moderately conservative or fully moderate. Extensions of the model allow us to identify the sensitivity of the results to the number of petitions for revision; the variety of legal topics covered by the petitions; and anticipation of whether the Court will confirm or reverse.

This Constitutional Court case involved an application by Dengetenge Holdings (Pty) (Ltd) (a junior mining company) for leave to appeal against a decision of the Gauteng North High Court setting aside the award of a prospecting right to Dengetenge, and the decision of the Supreme Court of Appeal (SCA) refusing to condone the company's late filing of its heads of argument in its appeal against the High Court's decision.

Legal precedent serves as the foundation of the common law. Judges provide their reasoning through precedent, citing cases to support their conclusion while distinguishing between cases cited by that counsel in favor of an opposing result. Legal precedent also provides the mechanism by which judges communicate with one another, at the same time providing guidance to prospective litigants and the practicing bar. This process is particularly important for supreme courts, whose decisions bind all lower courts within their jurisdiction. For this reason, in most common‐law jurisdictions, the supreme court decides relatively few cases but draws heavily on precedent for the opinions it issues. The Supreme Court in India stands in contrast to its counterparts in countries such as the United States and Canada in that it decides thousands, rather than tens, of cases. Examining the universe of Court decisions from 1950–2010, we find that the Court elects not to cite precedent in nearly half its opinions. In turn, these opinions without citation to precedent are rarely subsequently cited. However, there is a second set of decisions that is more analogous to U.S. Supreme Court decisions. These decisions do cite prior decisions and are cited by later cases. Opinions that do cite precedent gravitate to older opinions, whose salience often endures for decades. These findings suggest the Court is constrained in its ability to process a heavy caseload, and makes strategic decisions as to which opinions to emphasize through its use of precedent.

InShergill & Others v. Khaira & Others[2014] UKSC 33, the UK courts considered whether a Sikh holy saint had the power to dismiss trustees who questioned his “succession” to the religious institution of theNirmal Kutia Johal. The Supreme Court, reversing the decision of the Court of Appeal that religious questions were “nonjusticiable,” reinstated the judgment at first instance of the High Court to the contrary. The decision of the Supreme Court is important because whenever questions of the identification and legitimacy of successors to a religious institution have arisen, their “justiciability” before a secular court has invariably been a bone of contention on grounds that it threatens the autonomy of religious institutions. InShergillthe Supreme Court got around these concerns by drawing a normative distinction between the public law of the land (which the courts are required to determine), and the internal private law of a religious institution on matters of succession, ordination, and removal (which are not in themselves for the courts to decide). ButShergillalso went further than previous case law in two respects. First, the fundamental tenets of a belief system are capable of an objective assessment by a secular court provided that there is public law element to a dispute, in which case the court can then decide on the fitness of the successor for office. This means there is no general presumption that a secular court is barred from considering religious questions per se. Second, these principles apply just as much to the judicial consideration of non-Christian faiths as they to the Christian religion, and this is so notwithstanding the court's unfamiliarity with other faiths.

The decisions of the Court of Justice of the European Union (CJEU) have had an immense impact on development of European Union law, and this has raised a critical discussion about how the CJEU establishes and uses case law. Through a comparison with the United States Supreme Court (USSC) and network analysis, this article argues that much of the criticism is based on false expectations as to the nature of the CJEU. We argue that the Court of Justice must be understood as a precedent-driven constitutional court and that, if we take that as our starting point, its approach to case law is quite reasonable.

On August 18, 2016, the Constitutional Court of the Republic of Colombia (Constitutional Court or Court) rendered a significant decision in the Garcia de Borissow and Others case on issues of immunity from execution, diplomatic protection, and objections to customary international law in its review of two combined cases brought by former local employees against the embassies of the Lebanese Republic and the United States of America in Bogotá. While upholding the diplomatic missions’ immunity from execution of lower court judgments awarding monetary sums, the Constitutional Court instructed the Colombian Ministry of Foreign Affairs (Foreign Ministry) to pursue recovery of such amounts either by diplomatic means or through enforcement of those judgments in Lebanese and American courts. The decision is both unique and problematic as a matter of international and domestic law.

The United States Supreme Court has significant influence over the development of legal policy, yet it must rely on external actors to bring to fruition the desired effect of its decisions. Among the most important such actors are state high courts who are often motivated to issue decisions promoting policies at odds with the U.S. Supreme Court and who have mechanisms to legitimize such decisions. This study builds on existing work on state court compliance with U.S. Supreme Court precedent by introducing a new theoretical framework that accounts for the impact of state-specific precedent vitality, or the degree to which the high court of a specific state has positively treated a U.S. Supreme Court precedent, on state high court compliance. Our analysis of state high court treatment of Miller v. California provides strong evidence for the importance of state-specific vitality as a determinant of state high court compliance.

Bush v. Gore was a straightforward and legally correct decision. For more than a quarter century, the Supreme Court has treated the stuffing of ballot boxes as a paradigmatic violation of the Equal Protection Clause. Much more subtle and indirect forms of vote dilution have also been outlawed. Like some of those practices, the selective and partial recount ordered by the Florida Supreme Court may have been an inadvertent form of vote dilution. But that recount had effects that were virtually indistinguishable from those in the paradigmatic case. There is no meaningful difference between adding illegal votes to the count and selectively adding legal votes, which is what the Florida court was doing. The Supreme Court rightly concluded that the vote dilution in this case violated well-established equal protection principles. Nor did the Supreme Court err in its response to this constitutional violation. Although the Court acted with unprecedented dispatch after the Florida court's December 8, 2000 decision, it was highly improbable that a legally proper recount could be conducted by the December 18 deadline set by federal law. And it was quite impossible for such a recount to meet the December 12 deadline that the Florida court itself had found in Florida law. Contrary to a widespread misconception, the U.S. Supreme Court properly accepted the Florida court's interpretation of state law and provided that court with an opportunity to reconsider its own interpretation of state law. When the clock ran out, it was entirely due to mistakes and delays attributable to the Florida court. The Supreme Court's majority opinion has been subjected to a barrage of political criticisms of a kind that might more fittingly be directed against a Senate Majority Leader or a Secretary of State. Ironically, it is precisely because the Justices correctly applied the law that they have been accused of having partisan motives.

The Supreme Court decision in Ivey v Genting Casinos rejected the two-stage test for dishonesty set out in R v Ghosh and replaced it with a single, objective test which transcends both criminal and civil law. This article asks whether it was correct to create a single test for dishonesty and in doing so, what role will subjectivity now play in the criminal law’s application of what is considered dishonest behaviour. Historically, the civil courts have beset with confusion as to the role of subjectivity in the test for dishonesty in the light of Royal Brunei Airlines v Tan. The author will consider whether lessons can be learned from the civil courts and whether similar problems will trouble criminal law, particularly in the light of criticism of the Ivey test and a preference, by some, for subjectivity to play a greater role in criminal liability for theft and other dishonesty offences.

The purpose of this contribution is to examine some salient applications of the comparative law method in the jurisprudence of the European Court of Justice in light of relevant case law of the U.S. Supreme Court involving recourse to foreign and international law in domestic constitutional adjudication. It is divided into three main parts. The first part concerns the European Court of Justice's recourse to the comparative law method in the context of the prohibition of discrimination on grounds of sexual orientation, highlighting parallels to the U.S. Supreme Court's decision in Obergefell v. Hodges. The second part takes up the comparative law method in the context of the interpretation of EU law, focusing on the European Court of Justice's elaboration of the autonomous concepts of "spouse" and "marriage" and the potential implications for the mobility of same-sex couples in the EU, drawing insights from the U.S. Supreme Court's decisions in United States v. Windsor and Obergefell. The third part discusses the comparative law method in the context of the European Court of Justice's review of national and Union measures for compliance with EU fundamental rights, which invites comparisons with some recent U.S. Supreme Court cases on the incorporation doctrine and the standard of review. Altogether, the comparative reflections set forth in this contribution attest to similar challenges facing each Court in the context of constitutional adjudication and provide interesting insights into how the Courts carry out their mandates under their respective constitutional charters. ispartof: American Journal of Comparative Law vol:64 issue:4 pages:841-864 status: published

The literature on the U.S. Supreme Court has paid substantial attention to the perceived legitimacy of the Court’s decisions. However, much less attention has been paid to the perceived legitimacy of the reasons the Court provides for its opinions. We design two experiments to understand how the public perceives opinion content. Unlike prior studies, we take it as a given that the Court uses legal reasons in its decisions. This offers us a baseline by which to compare departures from these legal reasons. We find that extralegal reasons, when paired with legal reasons, do nothing to harm the legitimacy of the Court. Furthermore, we find that even with a lack of legal reasons, the use of extralegal reasons does not harm the legitimacy of the Court, even among those who find that these reasons are inappropriate for the Court to use.

The Supreme Court deals with many political cases, where policies are at stake, while on the other hand there is the politics within the Court which can also play an important role. It is difficult to judge the current system without sound empirical and theoretical studies, so one cannot confidently assess the effectiveness of the paper appeals in the American System in the light of the long history of the UK system, of different career paths of advocates in these two countries and of different routes of appointment for judges in both jurisdictions. Nevertheless, any interviews that were conducted with senior judges in the UK were conducted a long time ago and might not be applicable to the current realities. It is true that the British system is open to moderation—the elimination of the House of Lords and its replacement with the Supreme Court is the best example—but maybe more changes are needed. It is paramount that greater diversity in the profession brings fresh perspectives. This is evident in electing practitioners with different career paths, such as Justice Kennedy and Lord Sumption. The president of the Supreme Court, Lord Neuberger, even suggested advertising the next position in the Supreme Court to be on a part time basis, to enable the election of an academic. As stated in the introduction, since Abela and others v Baadarani is a case with important principles at stake, is there a space for political disagreement?

This article analyzes how the public perceives the Supreme Court's decision-making in Burwell v. Hobby Lobby Stores, Inc. (2014) and National Federation of Independent Business v. Sebelius (2012). Using theories of motivated reasoning and cognitive dissonance, I hypothesize that whether an individual approves or disapproves of the Court's decision will influence how they perceive the Court's decision-making. Specifically, those who approve of the Court's decision are more likely to be motivated to perceive the Court's decision-making in a legalistic fashion. However, those who disapprove of the decision are more likely to be motivated to perceive the Court's decision-making in a non-legalistic fashion. I find support for these hypotheses in analysis of both cases. The results presented in this article suggest that scholars need to consider how the public reacts to individual Court cases when studying how the public perceives the Court's decision-making. Further, these findings help explain the gro...

Purpose – The purpose of this paper is to consider the impact on rent review clauses of a recent UK Supreme Court ruling on the interpretation and application of contractual provisions. Although the ruling in Arnold v. Britton (2015) UKSC 36 concerned service charge provisions, the court’s approach has significant implications for rent reviews where a fixed or indexed increase is intended. Design/methodology/approach – Review of the Supreme Court’s approach and findings in a case concerning clauses that provided for fixed percentage increases in long leases. Findings – It is no part of the court’s function, through the process of contractual interpretation, to rescue a party from a bad bargain. Research limitations/implications – Supreme Court ruling in Arnold v. Britton was considered in the context of recent rulings on rent review clauses. Practical implications – When drafting for a fixed or stepped increase at rent review, parties must ensure that any formulae or other provisions governing calculation produce results that are fair and in line with the parties’ actual intentions. The court will not use the process of contractual interpretation to rescue a party from a bad bargain, and will not intervene to override clear wording. Although the court has power to decide in favour of commercial common sense where a clause is ambiguous or unclear, there is a limit to the “red ink” that the court can apply, and no room for remedial interpretation where a clause is clear. Social implications – Where contract provisions are clear it is not open to the court to intervene, by means of contractual interpretation, to protect or to rescue a party who has been disadvantaged, however seriously, if the clause is clear. Where such cases arise in a contract covered by English law, or in similar common law jurisdictions, any protection must be found in statute. Originality/value – Practitioner’s review and comments on recent Supreme Court authority.

This article attempts to highlight the difference between the form and the substance of the Gauweiler judgment on the OMT programme undertaken by the European Central Bank. While the case is based upon a formal interpretation, reference to the substantive concept of independence of central banks is analyzed only indirectly by the Court of Justice. The author tries to reconstruct the essence of the Court's reasoning by resorting to the doctrinal concept of central bank independence, the previous case law of the Court of Justice concerning central bank independence, the judgment of the German Constitutional Court, the Opinion of the Advocate General, and the case law of the US Supreme Court, for comparative purposes.

There is minimum scholarship on the sentencing and corrections decisions of the U.S. Supreme Court under the leadership of Chief Justice John Roberts, and few analyses of the relationship of this jurisprudence to historical developments in correctional law. This study examines 63 such decisions rendered during the 2006 to 2013 terms. Results indicate a concentration of rulings in the areas of sentencing and habeas, and a majority of decisions focused on technical matters of substance and procedure rather than substantive constitutional concerns; only four milestone substantive constitutional decisions were identified. A large proportion of rulings were sharply divided, and more than one half favored convicted parties. Findings are interpreted using Weber’s conception of the formal rationalization of law and in terms of ideological legitimacy of the Court. The technicalization trend is conceptualized as an extension and sustaining force of the Rehnquist Court’s conservative deferentialism, an ongoi...

The article sheds light on provisions of Codes of Civil Procedure of 1853 and 1860 concerning ordinary legal remedies. As this matter was codified for the first time, a necessity of amending and supplementing some provisions soon emerged. Those amendments and supplements, along with original provisions were examined in this paper. The author also deals with regulations on jurisdiction of Court of Appeal, Court of Cassation and Supreme court. Types and categories of ordinary legal remedies were scrutinized, as well as strict time limits within one should lodge an appeal and proper grounds for making an appeal. The author also responds to questions under which circumstances are ordinary legal remedies allowed, and what types of decisions a higher court can make after reviewing the correctness and reasonableness of a decision issued by a lower court. Shortly after enactment of the Code of 1853 it appeared that judicial procedure is too complicated, expensive and ineffective due to too many legal remedies and legal jurisdictions. That is the reason why the Supreme court as the highest court within the hierarchy of legal jurisdictions and as final court of appeal was abolished in 1860, when new Code of Civil Procedure had been passed. New codification envisaged Court of Appeal as second instance court and, at the same time, court of last resort. Regarding legal remedies, Code of 1860 introduced appeal as sole ordinary legal remedy.

The UK Supreme Court has considered, for the first time, the effect on an insurance claim of a ‘fraudulent device’ – the embellishment of that claim. In doing so, it has also clarified the ambit of the doctrine of utmost good faith, which for centuries has underpinned UK insurance contracts. The extent of the uncertainty which has hitherto surrounded this area of law can be seen by the fact that the opinion of four Supreme Court judges prevailed, notwithstanding the opposing views of five judges, one in the High Court, three in the Court of Appeal and one in the Supreme Court. This briefing note discusses the Supreme Court’s recent judgement in Versloot Dredging BV and another v. HDI Gerling Industrie Versicherung AG and others.

Like everything else in the Bill of Rights, the Second Amendment originally restrained only the new federal government. This left the states free to regulate weapons as they saw fit, just as they were free to regulate such matters as speech and religion. The Supreme Court did not invalidate a federal statute under the Second Amendment until 2008, and it was only in 2010 that a regulation adopted pursuant to state law was struck down. These two decisions — District of Columbia v. Heller and McDonald v. City of Chicago — prompted a stream of litigation that may eventually put significant constraints on legislative efforts to regulate the possession and use of weapons. As this is written in July 2017, however, it seems more likely that the Court’s decisions will prove to have very limited practical effects. It is worth recalling the Rehnquist Court’s Commerce Clause decision in United States v. Lopez, which set off celebrations and lamentations about a federalism revolution that has yet to come about. Similarly, the Roberts Court has so far shown only that the Second Amendment does not leave governments with absolutely limitless regulatory power. This contribution to American Federalism and Public Policy (edited by Christopher P. Banks) begins with a brief sketch of the legal and historical background that set the stage for Heller and McDonald. After a description of those cases, the chapter surveys the application of the decisions by the lower courts. The chapter concludes with an analysis of the Supreme Court’s response to the case law developed by the lower courts.

The Supreme Court of the United States stands at the head of the nation’s judicial system. Created in Article III of the Constitution of 1787 but obscured by the other branches of government during the first few decades of its history, the Court came into its own as a co-equal branch in the early 19th century. Its exercise of judicial review—the power that it claimed to determine the constitutionality of legislative acts—gave the Court a unique status as the final arbiter of the nation’s constitutional conflicts. From the slavery question during the antebellum era to abortion and gay rights in more recent times, the Court has decided cases brought to it by individual litigants, and in doing so has shaped American constitutional and legal development. Composed of unelected justices who serve “during good behavior,” the Court’s rise in stature has not gone uncontested. Throughout the nation’s history, Congress, the president, and organized interest groups have all attempted to influence the Court’s jurisdiction, composition, and decision making. The Court’s prominence reflects Americans’ historically paradoxical attitudes toward the judiciary: they have often been suspicious of the power of unelected judges at the same time that they have relied on independent judicial institutions to resolve their deepest disputes.

The Supreme Court dominates America’s legal establishment. Predicting its decisions has, arguably, and for all practicality, become an industry. The traditions of the court have endowed it with a teleological approach which makes predicting the court’s decisions difficult. On important decisions, especially those with political overtones, the Justices on the court show a strong preference to vote along partisan lines, in harmony with the party that nominated them onto the court - but not always. In a review of the court’s history, in key decisions Justices have departed from their more predictable partisanship. Our analysis shows that when judges depart from their predictable partisanship, they do so for fairly consistent, if not predictable, reasons: institution building. This paper argues that the Supreme Court behaves in a manner consistent with Max Weber"s social theory: that a bureaucracy will labor to perpetuate itself. The Supreme Court often makes decisions for the purpose of enhancing and perpetuating the institution of the Court itself. Because the Supreme Court is a national institution, at times “institution building” means nation building. This paper studies the tension of partisanship versus institution building in Supreme Court decisions: the dynamics of fission versus fusion, the tension that exist between these two poles and the mechanics of how this is worked out, creates arguably some of the greatest drama in the Court’s history as demonstrated in Marbury v. Madison and Bush v. Gore.

For the second time in three years, the Supreme Court is reviewing the constitutionality of a race-conscious admissions policy at the University of Texas, Austin. While the case, Fisher v. University of Texas, raises questions specific to UT Austin, the Court’s second review could change the ways higher education institutions across the nation can legally consider race in their admissions policies. This essay considers the potential ramifications of the Court’s second review. While one cannot predict what the Court will decide, the voting patterns in the first opinion, which sent the case back to the lower court and left prior decisions upholding the constitutionality of race-conscious policies in place, may not hold. Assuming that the justices’ votes are consistent with their previous interpretations of the constitutionality of race-conscious admissions, the decision likely will depend on Justice Kennedy. This essay therefore focuses on Kennedy’s positions in previous cases addressing the use of race in education policies in which he has cast the decisive vote. The Court’s forthcoming decision will not provide easy answers to longstanding questions about how we as a society can account for race in a way that renders it less powerful in shaping life chances. However, unless informed by social science, the way Kennedy resolves the tension he perceives between the constitutional principles of liberty and equity when racial classifications are involved may introduce legal reasoning disconnected from social realities and unnecessary complications for postsecondary institutions that want to provide the educational benefits of a diverse student body.

At a joint press conference in April of 2012, a reporter asked President Barack Obama to speculate on how the Supreme Court might rule concerning the Patient Protection and Affordable Care Act. Ultimately, the president said, "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." (1) Whether or not this statement shaped the Court's decision in June to uphold the Act; the president's rhetoric fueled a debate in the popular media about the appropriateness of the president attempting to influence the Court by going public in this manner (e.g., Editorial Board 2012; Hartman 2012). This is so even though the president mentioned National Federation of Independent Business v. Sebelius (2012) on only two occasions prior to the Court's decision. The bulk of the president s attention to this case occurred after the decision, in dozens of stump speeches delivered during the 2012 presidential election campaign. These remarks are not the only high-profile instance of presidents targeting Supreme Court cases in their public rhetoric. President Obama famously raised concerns about Citizens United v. Federal Election Commission (2010) during his 2010 State of the Union Address and called on Congress to counteract Shelby County v. Holder (2013), the Court's decision to invalidate the preclearance provision of the Voting Rights Act of 1965. George W. Bush publicized his opposition to affirmative action prior to the Court's decisions in Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003). (2) Even 50 years ago, President Johnson praised the Court's decisions in Brown v. Board of Education (1954) and Shelley v. Kraemer (1948) as he encouraged Congress to pass more expansive civil rights legislation. (3) Despite these examples of presidential speeches referencing Supreme Court cases, we lack a firm understanding of when, how frequently, and why presidents mention Supreme Court cases in their public statements. To date, most going public research that examines the interrelationships between the executive and judicial branches of government focuses on judicial nominations, not Supreme Court cases (Cameron and Park 2011; Holmes 2007, 2008; Johnson and Roberts 2004; Krutz, Fleisher, and Bond 1998; Maltese 1995a). In addition, only limited research shows that presidents increase their public attention to policy issues in response to Supreme Court cases on those issues (Flemming, Wood, and Bohte 1999; see Ura 2014). Moreover, despite the firestorm surrounding President Obama's comments delivered before the Court's ruling in the Sebelius case, we know next to nothing about how frequently presidents speak on pending decisions or whether they focus their public attention on decided cases. We remedy this state of affairs by investigating the frequency of both written and spoken comments on historic and recently decided Supreme Court decisions. To do this, we have cataloged the number of times per month that presidents mention Supreme Court cases in public comments from the Eisenhower to Obama administrations (1953-2012). We use these data to explore two significant topics. First, we analyze the timing of presidential references to Supreme Court cases to determine whether presidents mention cases pending before the Court or discuss cases after they have been decided. Because we find that presidents speak almost exclusively about Supreme Court cases after they have been decided, our primary research question asks: what explains the frequency of the president's monthly public commentary on decided Supreme Court cases? To answer this question, we build upon research that explains the number of presidential speeches over time (Eshbaugh-Soha 2010; Hager and Sullivan 1994; Kernell 1997; Powell 1999; Ragsdale 1984), which concludes, to varying degrees, that presidents speak publicly to bolster their reelection, historical legacies, and policy goals. …

This article describes a Supreme Court of Kentucky court improvement initiative designed to promote uniformity and improved court practice with an ultimate goal of the improvement of outcomes for children and families through implementation of Family Court Rules of Procedure and Practice. Twelve jurisdictions were purposely selected to exhibit a range of family and non-family court jurisdictions, rural and middle-sized locations. This article focuses on the results of court case file review related to indicators of due process and timeliness. Implications for court evaluation and reform activities are discussed.

Do legal elites-lawyers admitted to federal appellate bars-perceive the Supreme Court as a "political" institution? Legal elites differentiate themselves from the mass public in the amount and sources of information about the Court. They also hold near-universal perceptions of Court legitimacy, a result we use to derive competing theoretical expectations regarding the impact of ideological disagreement on various Court perceptions. Survey data show that many legal elites perceive the Court as political in its decision making, while a minority perceive the Court as activist and influenced by external political forces. Ideological disagreement with the Court's outputs significantly elevates political perceptions of decision making, while it exhibits a null and moderate impact on perceptions of activism and external political influence, respectively. To justify negative affect derived from ideological disagreement, elites highlight the political aspects of the Court's decision making rather than engage in "global delegitimization" of the institution itself.While numerous studies exist about how the mass public perceives the U.S. Supreme Court, little is known about how elite lawyers with specialized legal expertise and an acute understanding of the U.S. Supreme Court perceive and assess the Court. Among these "legal elites," is the Court perceived as a political and ideologically driven institution, as legalistic and capable of objectively producing legal outputs, or something in between? While Congress and the Presidency are often seen by members of the mass public as divisive, ideologically polarizing, and uncivil, conventional scholarly wisdom suggests that the Supreme Court is seen as relatively more objective, legalistic, and above the political fray. Since many Americans do not possess a thorough understanding of the Court's policymaking, they are less aware of the extent to which the Court can be political and ideological (e.g., Epstein and Knight 1998; Maltzman et al. 2000; Segal and Spaeth 2002).1 Given that legal elites-here, lawyers admitted to federal appellate bars-do not suffer from similar informational disadvantages, it is interesting in and of itself to analyze where they fall along the "law versus politics" spectrum pertaining to the Court. Legal elites are socialized to respect legal principles and their application, but through professional practice and elevated attention to what the Court is doing, legal elites experience and observe the political nature of judicial decision making.Moreover, we confront the following empirical foundation: the legal elites studied in this article almost universally perceive the Court as legitimate. Our theoretical innovation is to develop competing models that could be the result of this characteristic. On one hand, Gibson and Caldeira's (2009a, 2009b) positivity theory implies that strong pre-existing legitimacy orientations may induce elites to hold near-universal apolitical perceptions of the Court, which should hold regardless of ideological disagreement with the Court's policymaking. On the other hand, legitimacy and perceptions of the Court's decision making and role in government may be more separable for legal elites than for average citizens. A motivated reasoning perspective (e.g., Kunda 1990; Taber and Lodge 2006) implies that the more legal elites disagree with the ideological direction of the Court's policymaking, the more "political" they will perceive the Court-including how it makes decisions and its role in American politics. Perceptions of the Court's decision making and role, but not legitimacy orientations, are an outlet for disagreement with Court policymaking. We test these competing models by analyzing survey data from the 2005 Annenberg Supreme Court study, which is a nationally representative survey of lawyers admitted to the U.S. Supreme Court and Courts of Appeals bars.Understanding how legal elites perceive the Court is valuable for several reasons and possesses important sociolegal implications. …

This article considers the role of the legal translator/interpreter in bilingual court proceedings. This is not, however, a situation where a non-English speaker gives oral evidence which is translated for the benefit of the court, but rather a situation where a court – the court in question being the Supreme Court of England and Wales – is unable to comprehend the bilingual text of the legislation. The interpreter is therefore called upon to explain the possible differences in meaning between the two versions. This article questions the extent to which the legal system is aware of the significance of these issues, and advocates re-evaluating the training requirements of legal interpreters.

This paper evaluates the impact of a higher court articulating doctrine as either a “rule” or a “standard.” The legal doctrine we evaluate concerns police searches based upon information supplied by confidential informants. The Supreme Court’s Aguilar-Spinelli test was a rule, and its Illinois v. Gates “totality of the circumstances” test is a standard. Using a data set of circuit court opinions from 1951 to 1999, we compare circuit-level implementation of these two doctrines. The results suggest that rules are more effective than standards at constraining ideological voting in lower courts.

This paper analyses the jurisprudence on the relevance of the commercial context to principles of the law of equity and trusts. We criticise recent UK Supreme Court decisions in the area (chiefly Williams v Central Bank of Nigeria, FHR European Ventures v Cedar Capital Partners and AIB Group v Mark Redler & Co) and identify a trend of the ‘commercialisation’ of the issues. The cases are placed in comparative context and it is argued that there is an unsatisfactory pattern of judicial reasoning, exhibiting a preference for some degree of unarticulated flexibility in commercial adjudication. But the price of that flexibility is a lack of doctrinal coherence and the development of equitable principles that will apply in, and beyond, the commercial context. We also argue that this trend has important implications for the coming rounds of Supreme Court appointments.

Although Canada remains outside the jurisdiction of the ECtHR, the Canadian cases are often considered by the Court, in particular when deciding on human rights cases arriving from the U.K. At least in respect to voting rights of prisoners and to assisted suicide, the ECtHR took account on the jurisprudence of the Supreme Court of Canada. In brief, the use of Canadian precedents by the Strasbourg Court constitute an interesting illustration of the global dialogue between the courts.

The Supreme Court decision which sentenced dr. Bambang suprapto.Sp.M.Surg. using article 76 of L aw N o 29 Year 2004 on the Practice of Medicine which had been annulled by the Constitutional Court has proved that the Supreme Court has put aside constitutional court's decision on constitutional review. This paper attempts to justify that at any reason, Constitutional Review decision of Constitutional Court still has binding force on the Supreme Court. It is based on four perspectives: 1. Historical perspective 2. Protected object perspective 3. Functional p erspective, and 4. Normative perspective. Keywords: Binding Force, Constitutional Review, Constitutional Court, Supreme Court.

The 2016 Presidential and Senate elections raise the possibility that a conservative, life-tenured Supreme Court will preside for years over a politically dynamic majority. This threatens to weaken the public’s already fragile confidence in the Court. By lowering the political stakes of both national elections and its own decisions, federalism may enable the Court to defuse some of the most explosive controversies it hears. Federalism offers a second-best solution, even if neither conservatives nor liberals can impose a national political agenda. However, principled federalism arguments are tricky. They are structural, more prudential than legal or empirical. Regardless of ideology, a bias toward federal power is hard-wired into the modern judicial appointment process. Once on the bench, Justices see an increasingly elite bar of Washington D.C. specialists steeped in federal practice, even when hearing cases concerning state sovereignty. These are problems for the Court, despite its likely sympathy for federalism arguments in years to come. This article suggests one solution: help the Court hear the states. Relatively minor reforms to the Court’s approach in cases impacting state sovereignty could harness the politics of state attorneys general to help the Court hear all states more clearly, facilitate a more principled federalism, and depoliticize the Court itself. States cannot help protect the Court from politicization, however, if their attorneys general fall victim to the same national polarizing forces that threaten the Court. Any reforms to help the Court hear the states better, therefore, must also help the states keep their voices strong and independent.

Ever since Justice Scalia passed away last February, the Supreme Court has been composed of eight Justices equally divided among Republicans and Democrats. This paper argues that Congress should permanently set the number of Justices at eight and require that at all times there are four Republicans and four Democrats on the Court. A permanent, evenly-divided Court will work harder to reach narrower decisions in its hardest cases and will be less able to impose its ideological agendas on the American people while at the same still have the tools necessary to maintain the supremacy and uniformity of federal law. To the extent the Justices do deadlock on a case, the issues will be resolved by court of appeals judges who are much more politically, educationally, and geographically diverse than the Justices.This proposal to limit the Court's power, unlike abolishing term limits or requiring a super-majority of Justices to strike down laws, does not require a constitutional amendment (the original number of Justices was six). Although the President could nominate any person he desires, even if it disrupts the Court's balance, the Senate could refuse to confirm any nominee who would lead to one of the political parties having a majority of Justices on the Court. This paper spells out the details of this proposal and explains both how it could be easily implemented and why it benefits both political parties, the Congress, the President, and the American people.Preexisting intellectual commitments or interpretative theories have not and cannot limit the Court's power. It is well past time to experiment with structural changes that will make it more difficult for the Justices to strike down state and federal laws based on ideological disagreement instead of a demonstration of clear inconsistency with the Constitution.

This paper therefore advances the theory that each non-Quebec “region”, as they are currently recognized, might need at least one appointee each in order to ensure the Court has functioning and legitimacy as a federal and bijural institution. This theory has the added benefit of providing the Governor-in-Council with flexibility in making appointments that meet other roles of the Court, such as adjudicating on Charter rights and aboriginal law.

This paper examines whether the Court Jurisdiction and Proceedings Transfer Act has readied Canada to adopt the 2005 Hague Choice of Court Convention. Reviewing the Convention as well as previous and current law and cases on forum selection clauses in common law Canada, including the very recent Supreme Court decision in Douez v Facebook, yields two conclusions. First, there are existing interpretive challenges flowing from gaps in the CJPTA with respect to jurisdictional clauses that need to be addressed. Second, the principles governing forum selection clauses in Canada are largely consistent with those put forward in the Hague Convention and should not be perceived as obstacles to its adoption.

The decision of the California Supreme Court in Bristol-Myers Squibb Co. v. Superior Court, 1 Cal.5th 783 (2016), is fully consistent with the due process standards recognized by this Court in International Shoe Co. v. Washington, 326 U.S. 310 (1945), as well as with recent doctrinal developments applying and elaborating those standards. The state high court’s substantial connection standard bridges the jurisdictional lacuna between specific and general jurisdiction and operates in a manner that is fully consistent with the federal common law doctrine of pendent personal jurisdiction. We, therefore, urge this Court to affirm the decision of the California Supreme Court.

The Chief Justice of the United States Supreme Court authors many of the most important opinions coming out of the Court. The prestige of authoring an important policy decision, and the value that such an opinion adds to the legacy of the Chief Justice’s Court, plays an important and strategic role in the Court’s opinion authorship dynamics and the policy outcomes of the Court. We present a Supreme Court decision-making model that, within the confines of legal doctrine, incorporates the authorship utility of the Chief Justice (and senior associate justices who hold secondary, yet important, property rights over authorship). New predictions emerge about who authors the Court’s opinion, what case outcome is chosen by the justices, which legal doctrines are chosen, and which decisions are unanimous among the justices. We illustrate aspects of the model with recent Supreme Court decisions involving health care and campaign financing.

Since 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of Indian law decisions indicates that the Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government. After categorizing the cases between victories and losses, the Article divides the cases into four categories: Federal common law, statutory interpretation, constitutional law, and procedural law. The cases are then further divided into four general areas: 1. Tribal Sovereign/Political rights, 2. Economic Rights (treaty/property rights), 3. Rights derived from the trust relationship, and 4. Cultural/Religious rights. The Article next focuses on the interaction between the Court and Congress concerning the incorporation of tribes as the third sovereign within the federalist system. This Part first evaluates Congress’s response to Supreme Court cases and then looks at the Court’s response to congressional legislation. The Article ends by arguing that through its disproportionate use of federal common law in its Indian law decisions, the Court has not attempted to reach a consensus with Congress about the place of Indian nations within our federalism. Instead, it has aimed to establish what the Court perceives should be the proper equilibrium between tribal interests on one hand and the non-Indian/state interests on the other.

In federal systems the courts are accorded the important role of policing the boundaries of the constitutionally specified powers given to the legislature and the executive. The devolution statutes enacted by the UK parliament have created a semi-federal system, in which the courts increasingly have been called upon to adjudicate on whether sub-national legislative bodies have acted ultra vires. Following a comparative overview of the theory and practice of court adjudication in overseas systems of multi-level governance, the leading cases of the British Supreme Court and the House of Lords are considered. It is proposed that Britain—almost by default—has become a semi-federal court somewhat akin to the US Supreme Court and the German Bundesverfassungsgericht.