Governments reform the process of nominating judges to constitutional courts, seeking to reduce the courts’ involvement in state affairs. Since 2008, reformers have tried to appoint judges who would be more judicially restrained. We examine the rulings of judges on Israel’s Supreme Court in its capacity as Israel’s High Court of Justice on the Israeli executive’s decisions. We show that reformers did achieve their goal of reducing High Court of Justice judges’ decisions supporting petitions against the executive. However, that trend has abated due to existing legal conventions regarding particular policy subsystems.
{"title":"Judicial Review in a Defective Democracy","authors":"Maoz Rosenthal, G. Barzilai, A. Meydani","doi":"10.1086/712655","DOIUrl":"https://doi.org/10.1086/712655","url":null,"abstract":"Governments reform the process of nominating judges to constitutional courts, seeking to reduce the courts’ involvement in state affairs. Since 2008, reformers have tried to appoint judges who would be more judicially restrained. We examine the rulings of judges on Israel’s Supreme Court in its capacity as Israel’s High Court of Justice on the Israeli executive’s decisions. We show that reformers did achieve their goal of reducing High Court of Justice judges’ decisions supporting petitions against the executive. However, that trend has abated due to existing legal conventions regarding particular policy subsystems.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/712655","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42290695","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The struggles Indigenous Peoples face are unique from other minority groups living in the United States because they exist in an odd, semisovereign status. While the US Constitution outlines that First Nations are sovereign entities, current federal law and policies hold that tribes are simultaneously sovereign and not sovereign. Using an original data set consisting of all cases involving Indigenous Peoples before state supreme courts from 1995 to 2010, we find Indigenous Peoples are more likely to receive positive judicial outcomes when the judiciary is elected and the indigenous population of the state is relatively high.
{"title":"Explaining Indigenous Peoples’ Success in State Supreme Courts","authors":"R. Reid, Todd A. Curry","doi":"10.1086/712650","DOIUrl":"https://doi.org/10.1086/712650","url":null,"abstract":"The struggles Indigenous Peoples face are unique from other minority groups living in the United States because they exist in an odd, semisovereign status. While the US Constitution outlines that First Nations are sovereign entities, current federal law and policies hold that tribes are simultaneously sovereign and not sovereign. Using an original data set consisting of all cases involving Indigenous Peoples before state supreme courts from 1995 to 2010, we find Indigenous Peoples are more likely to receive positive judicial outcomes when the judiciary is elected and the indigenous population of the state is relatively high.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/712650","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48560587","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The State of the Union represents an opportunity for the president to share policy goals with other political actors. Thus, the State of the Union can proxy how much information the Court has about executive preferences when receiving a case. We find that the less time a president devotes to a policy area, the more likely the Court is to issue a request for a brief in a case dealing with that issue area. This finding indicates that the Court is cognizant of presidential signals of policy preferences and actively seeks to supplement its understanding of the executive’s preferences.
{"title":"Seeking Information","authors":"Natalie C. Rogol, Matthew D. Montgomery","doi":"10.1086/712647","DOIUrl":"https://doi.org/10.1086/712647","url":null,"abstract":"The State of the Union represents an opportunity for the president to share policy goals with other political actors. Thus, the State of the Union can proxy how much information the Court has about executive preferences when receiving a case. We find that the less time a president devotes to a policy area, the more likely the Court is to issue a request for a brief in a case dealing with that issue area. This finding indicates that the Court is cognizant of presidential signals of policy preferences and actively seeks to supplement its understanding of the executive’s preferences.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/712647","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45901600","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
European courts have responded to increasing caseloads by providing justices or other actors with a higher degree of discretionary docket control. Does docket type—mandatory or discretionary—shape judicial behavior? Using a most similar systems research design regarding tax decisions in the Norwegian and Danish supreme courts, we show that discretionary dockets are associated with higher dissent and reversal rates than mandatory dockets, that low-status litigants have a lower chance of winning under mandatory dockets, and that docket type conditions the effects of justices’ preferences. Our findings have implications for comparative judicial politics and for institutional design.
{"title":"How Docket Control Shapes Judicial Behavior","authors":"J. K. Skiple, H. L. Bentsen, M. J. Mckenzie","doi":"10.1086/712654","DOIUrl":"https://doi.org/10.1086/712654","url":null,"abstract":"European courts have responded to increasing caseloads by providing justices or other actors with a higher degree of discretionary docket control. Does docket type—mandatory or discretionary—shape judicial behavior? Using a most similar systems research design regarding tax decisions in the Norwegian and Danish supreme courts, we show that discretionary dockets are associated with higher dissent and reversal rates than mandatory dockets, that low-status litigants have a lower chance of winning under mandatory dockets, and that docket type conditions the effects of justices’ preferences. Our findings have implications for comparative judicial politics and for institutional design.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/712654","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47084817","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Researchers often study the impact of legal change by investigating judges’ decisions and ignoring litigants. Many scholars believe the Supreme Court’s decisions in Twombly and Iqbal increased how specific factual allegations must be to avoid dismissal, but studies generally fail to find an effect. Using text analysis, I find evidence that litigants and their lawyers changed the information they provided after the decisions in certain types of cases. These results call into question prior studies and illustrate the need to consider the behavior of litigants. They also help shed light on issues of access to courts and separation of powers.
{"title":"Judicial Impact and Factual Allegations","authors":"Morgan L. W. Hazelton","doi":"10.1086/712653","DOIUrl":"https://doi.org/10.1086/712653","url":null,"abstract":"Researchers often study the impact of legal change by investigating judges’ decisions and ignoring litigants. Many scholars believe the Supreme Court’s decisions in Twombly and Iqbal increased how specific factual allegations must be to avoid dismissal, but studies generally fail to find an effect. Using text analysis, I find evidence that litigants and their lawyers changed the information they provided after the decisions in certain types of cases. These results call into question prior studies and illustrate the need to consider the behavior of litigants. They also help shed light on issues of access to courts and separation of powers.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2020-12-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/712653","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49476830","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
France maintains a court system outside of the European continent in so-called overseas regions such as Martinique and New Caledonia. Held as colonies until the 1940s, these territories became part of the French state with varying degrees of autonomy. Drawing on original qualitative and archival research, this article argues that through these overseas courts, France continues to legally assume the traditional role of a colonial power despite its declared commitment to the nation-state, republican model. Subordinating discourses and elements of colonial structure have outlived the transition to nonempire, continuing to exert strong influences on the courts’ operations, especially the way in which judges and prosecutors are appointed and promoted. This study should also be read as a contribution to the scholarship on how court systems around the globe grapple with the legacy of colonialism in shaping their organizational structure and practices.
{"title":"Judicial Colonialism Today","authors":"Mathilde Cohen","doi":"10.1086/709910","DOIUrl":"https://doi.org/10.1086/709910","url":null,"abstract":"France maintains a court system outside of the European continent in so-called overseas regions such as Martinique and New Caledonia. Held as colonies until the 1940s, these territories became part of the French state with varying degrees of autonomy. Drawing on original qualitative and archival research, this article argues that through these overseas courts, France continues to legally assume the traditional role of a colonial power despite its declared commitment to the nation-state, republican model. Subordinating discourses and elements of colonial structure have outlived the transition to nonempire, continuing to exert strong influences on the courts’ operations, especially the way in which judges and prosecutors are appointed and promoted. This study should also be read as a contribution to the scholarship on how court systems around the globe grapple with the legacy of colonialism in shaping their organizational structure and practices.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/709910","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42112466","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The first, hidden stage of the Supreme Court’s agenda-setting process is the formation of the “discuss list,” the small set of cases actually considered in conference. Yet few have systematically considered the operation of and the influences on this critical initial phase of decision making. No systematic, empirical work makes comparisons over time of how features of cases shape the makeup of the chief justice’s discuss list. Here, we examine the composition of the discuss list through a multivariate analysis of all paid petitions for certiorari filed in October Term 1939, 1968, and 1982. We are thereby able to compare the tendencies and efficacy of three long-serving chief justices—Hughes, Warren, and Burger—in making up the discuss list. And, methodologically, we present an alternative to the “observed-value” and the “representative-case” methods of calculating effect sizes for second differences, with software to implement our proposal.
{"title":"Selection of Cases for Discussion","authors":"Gregory A. Caldeira, D. Lempert","doi":"10.1086/709915","DOIUrl":"https://doi.org/10.1086/709915","url":null,"abstract":"The first, hidden stage of the Supreme Court’s agenda-setting process is the formation of the “discuss list,” the small set of cases actually considered in conference. Yet few have systematically considered the operation of and the influences on this critical initial phase of decision making. No systematic, empirical work makes comparisons over time of how features of cases shape the makeup of the chief justice’s discuss list. Here, we examine the composition of the discuss list through a multivariate analysis of all paid petitions for certiorari filed in October Term 1939, 1968, and 1982. We are thereby able to compare the tendencies and efficacy of three long-serving chief justices—Hughes, Warren, and Burger—in making up the discuss list. And, methodologically, we present an alternative to the “observed-value” and the “representative-case” methods of calculating effect sizes for second differences, with software to implement our proposal.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/709915","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48613909","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
How do political actors use rhetoric after an initial policy battle? We explore factors that lead Supreme Court justices to integrate disagreeable rhetoric into opinions. Although disagreeable language has negative consequences, we posit that justices pay this cost for issues with high personal significance. At the same time, we argue that integrating disagreeable rhetoric has a deleterious effect on the institution by reducing majority coalition size. Examining opinions from 1946 to 2011 using text-based measures of disagreeable rhetoric, we model the language of opinion writing as well as explore the consequences for coalition size. Our findings suggest serious implications for democratic institutions and political rhetoric.
{"title":"The Sources and Consequences of Political Rhetoric","authors":"Michael A. Zilis, Justin Wedeking","doi":"10.1086/709968","DOIUrl":"https://doi.org/10.1086/709968","url":null,"abstract":"How do political actors use rhetoric after an initial policy battle? We explore factors that lead Supreme Court justices to integrate disagreeable rhetoric into opinions. Although disagreeable language has negative consequences, we posit that justices pay this cost for issues with high personal significance. At the same time, we argue that integrating disagreeable rhetoric has a deleterious effect on the institution by reducing majority coalition size. Examining opinions from 1946 to 2011 using text-based measures of disagreeable rhetoric, we model the language of opinion writing as well as explore the consequences for coalition size. Our findings suggest serious implications for democratic institutions and political rhetoric.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/709968","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45896306","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Øyvind Stiansen, Daniel Naurin, Live Standal Bøyum
International courts are increasingly affecting domestic and international politics and are receiving increased attention in political science research. In addition to their political importance, international courts provide new opportunities for testing theories of judicial politics, yet further progress requires access to data, particularly on the courts that have so far received less scrutiny. This article introduces a new database on Inter-American Court of Human Rights (IACtHR) judgments. The database contains information on case proceedings, judicial behavior, judgment content, the actors involved, and compliance with remedial orders. The current version of the database contains data on 201 IACtHR cases. We illustrate how the database can be used to address important questions in judicial politics by analyzing whether the propensity of the IACtHR to rule against a responding state correlates with the positions taken by the same state early in the proceedings before the court. We find evidence of such a relationship.
{"title":"Law and Politics in the Inter-American Court of Human Rights","authors":"Øyvind Stiansen, Daniel Naurin, Live Standal Bøyum","doi":"10.1086/709914","DOIUrl":"https://doi.org/10.1086/709914","url":null,"abstract":"International courts are increasingly affecting domestic and international politics and are receiving increased attention in political science research. In addition to their political importance, international courts provide new opportunities for testing theories of judicial politics, yet further progress requires access to data, particularly on the courts that have so far received less scrutiny. This article introduces a new database on Inter-American Court of Human Rights (IACtHR) judgments. The database contains information on case proceedings, judicial behavior, judgment content, the actors involved, and compliance with remedial orders. The current version of the database contains data on 201 IACtHR cases. We illustrate how the database can be used to address important questions in judicial politics by analyzing whether the propensity of the IACtHR to rule against a responding state correlates with the positions taken by the same state early in the proceedings before the court. We find evidence of such a relationship.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/709914","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46759175","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
C. Cameron, C. Gray, Jonathan P. Kastellec, J. Park
We examine interest group involvement in Supreme Court nominations from 1930 to 2017, finding dramatic shifts in the number and type of groups, as well as their choice of tactics. Whereas the early period was dominated by labor unions, “core” civil rights groups, and groups affiliated with the “old right,” the modern period is dominated by public interest/citizen groups and “identity” groups. We also find a shift from more traditional “inside” tactics to the heavy use of “outside/grassroots” mobilization tactics. Finally, we show that the calculus of mobilization has increasingly been based on a nominee’s ideology over time.
{"title":"From Textbook Pluralism to Modern Hyperpluralism","authors":"C. Cameron, C. Gray, Jonathan P. Kastellec, J. Park","doi":"10.1086/709912","DOIUrl":"https://doi.org/10.1086/709912","url":null,"abstract":"We examine interest group involvement in Supreme Court nominations from 1930 to 2017, finding dramatic shifts in the number and type of groups, as well as their choice of tactics. Whereas the early period was dominated by labor unions, “core” civil rights groups, and groups affiliated with the “old right,” the modern period is dominated by public interest/citizen groups and “identity” groups. We also find a shift from more traditional “inside” tactics to the heavy use of “outside/grassroots” mobilization tactics. Finally, we show that the calculus of mobilization has increasingly been based on a nominee’s ideology over time.","PeriodicalId":44478,"journal":{"name":"Journal of Law and Courts","volume":null,"pages":null},"PeriodicalIF":1.4,"publicationDate":"2020-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.1086/709912","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47241367","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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