scholarly journals The Constraining Capacity of Legal Doctrine on the U.S. Supreme Court

2009 ◽  
Vol 103 (3) ◽  
pp. 474-495 ◽  
Author(s):  
BRANDON L. BARTELS
Keyword(s):  
Supreme Court ◽  
Theoretical Models ◽  
Free Expression ◽  
Modeling Framework ◽  
Legal Doctrine ◽  
Legal Rules ◽  
Strict Scrutiny ◽  
Legal Constraint ◽  
Attitudinal Model ◽  
Ideological Voting

Does law exhibit a significant constraint on Supreme Court justices' decisions? Although proponents of the attitudinal model argue that ideology predominantly influences justices' choices, “hybrid models” posit that law and ideology exhibit discrete and concurrent effects on justices' choices. I offer a new conceptualization of legal constraint examining how legal rules permit varying degrees of ideological discretion, which establishes how strongly ideological preferences will influence justices' votes. In examining the levels-of-scrutiny legal doctrine, I posit theoretical models highlighting the differential constraining capacities of the strict scrutiny, intermediate scrutiny, and rational basis rules. I use a multilevel modeling framework to test the hypotheses within the context of theGrayneddoctrine in free expression law. The results show that strict scrutiny, whichGraynedapplied to content-based regulations of expression, significantly constrains ideological voting, whereas intermediate scrutiny (applied to content-neutral regulations) and the low scrutiny categories each promote high levels of ideological voting.

Why Psychoanalysis Matters to Law

2017 ◽  
Author(s):  
Anne C. Dailey
Keyword(s):  
Lived Experience ◽  
Criminal Law ◽  
Legal Theory ◽  
Practical Knowledge ◽  
Individual Freedom ◽  
Human Beings ◽  
Legal Doctrine ◽  
Legal Rules ◽  
The Law ◽  
Theoretical Foundations

This chapter describes the contribution contemporary psychoanalysis has to make in three specific areas: legal theory, legal doctrine, and adjudication in the courtroom. Psychoanalysis improves the law’s theoretical foundations by modifying its foundational presumption of rationality. Psychoanalysis also helps to reform legal doctrine by identifying those particular subject matter areas, primarily family law and criminal law, where the law’s presumption of rationality leads to unjust legal rules. With domestic violence as its example, this chapter shows how psychoanalysis offers a body of practical knowledge that humanizes the law by bringing legal rules into line with actual, everyday lived experience. And finally, psychoanalysis reveals the deep tension between the law’s focus on individual moral responsibility for behavior and the law’s objective methods of proof in the courtroom. Psychoanalytic insights into the art of proving what really happened in a case can move law in the direction of a more empathic and forgiving model of judging. Overall, the psychoanalytic study of the law unveils the damaging consequences of the law’s rationalist assumptions about who we are as human beings, and offers an alternative, humanistic perspective in line with law’s foundational ideals of individual freedom and systemic justice.

scholarly journals Sexual Orientation and Gender Identity as Penalizing Criteria of Hate Speech

2020 ◽  
Vol 40 (1) ◽  
pp. 91-108
Author(s):  
Filip Mateusz Ciepły
Keyword(s):  
Sexual Orientation ◽  
Gender Identity ◽  
Supreme Court ◽  
Criminal Law ◽  
Hate Speech ◽  
Criminal Responsibility ◽  
European Law ◽  
Legal Doctrine ◽  
And Gender

The article contains arguments raised in Polish discussion on the problem of sexual orientation and gender identity as penalizing criteria of hate speech. The Author points out regulations of Polish criminal law providing conditions of criminal responsibility for hate speech and binding criteria of the penalization, draft amendments in this area presented in recent years, as well as Polish legal doctrine or Supreme Court reviews referred to the issue. The background of the analyzes are provisions of international and European law as well as selected European states.

Legal Rules for Recovery

2001 ◽  
Author(s):  
Jessica W. Berg ◽  
Paul S. Appelbaum ◽  
Charles W. Lidz ◽  
Lisa S. Parker
Keyword(s):  
Informed Consent ◽  
Legal Theory ◽  
Medical Profession ◽  
Physician Behavior ◽  
Medical Decision ◽  
Legal Doctrine ◽  
Legal Rules ◽  
Judicial Remedy ◽  
The Law ◽  
Injured Patients

This chapter deals with the legal theory and procedural framework under which patients can obtain redress for their injuries resulting from treatment administered in the absence of informed consent. The evolution of the legal doctrine was driven by the demands of patients for redress for injuries, and more attention has been given by courts and legislatures to the questions of when and how compensation might be obtained than to providing guidance for clinicians. In some important respects, the distinction between the law as it applies to the physician engaged in medical decision making with a patient and the law as it applies to that same patient who later seeks compensation in the courts is an artificial one. Insofar as the spirit of informed consent is not embraced voluntarily by the medical profession, but is adhered to in large part to avoid the likely consequences of failure to observe the legal rules, physician behavior will be shaped not only by the rules themselves but also by the way they are enforced. If, for example, the rules governing the means of redress were complex, time-consuming, and unlikely to yield the desired compensation, few injured patients would pursue a judicial remedy. As a result, physicians would eventually realize that adverse consequences were unlikely to follow from a failure to observe the relevant rules and, except to the extent that they had accepted the ethical theory of informed consent, their adherence to the doctrine would crumble. Some critics of the present system contend that this has already happened (see Chapter 7). On the other hand, rules that make recovery easier and more certain would be likely to encourage compliance with the requirements for informed consent. Differential emphasis by the courts on particular kinds of lapses by clinicians might also shape their actions accordingly. For example, the courts’ focus on risk information has led many physicians to tailor disclosure to emphasize risks. Thus, the issues addressed in this chapter, although framed in legal terminology, are important (some would argue crucial) determinants of the ultimate impact of informed consent.

Ideological Values and the Votes of U.S. Supreme Court Justices

1989 ◽  
Vol 83 (2) ◽  
pp. 557-565 ◽  
Author(s):  
Jeffrey A. Segal ◽  
Albert D. Cover
Keyword(s):  
Supreme Court ◽  
Strong Support ◽  
Policy Preferences ◽  
Attitudinal Model

It is commonly assumed that Supreme Court justices' votes largely reflect their attitudes, values, or personal policy preferences. Nevertheless, this assumption has never been adequately tested with independent measures of the ideological values of justices, that is, measures not taken from their votes on the Court. Using content analytic techniques, we derive independent and reliable measures of the values of all Supreme Court justices from Earl Warren to Anthony Kennedy. These values correlate highly with the votes of the justices, providing strong support for the attitudinal model.

Does Legal Doctrine Matter? Unpacking Law and Policy Preferences on the U.S. Supreme Court

2008 ◽  
Vol 102 (3) ◽  
pp. 369-384 ◽  
Author(s):  
MICHAEL A. BAILEY ◽  
FORREST MALTZMAN
Keyword(s):  
Decision Making ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Policy Preferences ◽  
Court Cases ◽  
Legal Doctrine ◽  
Strict Interpretation ◽  
Law And Policy ◽  
Speech Clause

Judicial scholars often struggle to disentangle the effects of law and policy preferences on U.S. Supreme Court decision making. We employ a new approach to measuring the effect—if any—of the law on justices' decisions. We use positions taken on Supreme Court cases by members of Congress and presidents to identify policy components of voting. Doing so enables us to isolate the effects of three legal doctrines: adherence to precedent, judicial restraint, and a strict interpretation of the First Amendment's protection of speech clause. We find considerable evidence that legal factors play an important role in Supreme Court decision making. We also find that the effect of legal factors varies across justices.

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