Theorizing the U.S. Supreme Court

2017 ◽  
Author(s):  
Charles M. Cameron ◽  
Lewis A. Kornhauser
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Supreme Court Decision ◽  
The United States ◽  
Voting Rule ◽  
The Supreme Court ◽  
The Status ◽  
The Difference ◽  
Judicial Studies ◽  
Judicial Actions

We summarize the formal theoretical literature on Supreme Court decision-making. We focus on two core questions: What does the Supreme Court of the United States do, and how can one model those actions; and, what do the justices of the Supreme Court want, and how can one model those preferences? Given the current state of play in judicial studies, these questions then direct this survey mostly to so-called separation of powers (SOP) models, and to studies of a multi-member (“collegial”) court employing the Supreme Court’s very distinctive and highly unusual voting rule.The survey makes four main points. First, it sets out a new taxonomy that unifies much of the literature by linking judicial actions, modeling conventions, and the treatment of the status quo. In addition, the taxonomy identifies some models that employ inconsistent assumptions about Supreme Court actions and consequences. Second, the discussion of judicial preferences clarifies the links between judicial actions and judicial preferences. It highlights the relationships between preferences over dispositions, preferences over rules, and preferences over social outcomes. And, it explicates the difference between consequential and expressive preferences. Third, the survey delineates the separate strands of SOP models. It suggests new possibilities for this seemingly well-explored line of inquiry. Fourth, the discussion of voting emphasizes the peculiar characteristics of the Supreme Court’s voting rule. The survey maps the movement from early models that ignored the special features of this rule, to more recent ones that embrace its features and explore the resulting (and unusual) incentive effects.

scholarly journals Resolving ALJ Removal Protections Problem Following Lucia

2020 ◽  
pp. 693
Author(s):  
Spencer Davenport
Keyword(s):  
United States ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
The United States ◽  
Administrative Law ◽  
Central Issue ◽  
Court Decision ◽  
Peremptory Challenge ◽  
The Supreme Court ◽  
The Status

When the Supreme Court decided Lucia v. SEC and held that administrative law judges (ALJs) are Officers under the Constitution, the Court opened a flood of constitutional issues around the status of ALJs and related government positions. One central issue relates to ALJs’ removal protections. ALJs currently have two layers of protection between them and the President. In an earlier Supreme Court decision, the Court held that two layers of tenure protection between an “Officer of the United States” and the President was unconstitutional as it deprived the President the power to hold his officers accountable. As impartial adjudicators, ALJs need those layers of protection to ensure fair adjudicative hearings. Lucia now threatens ALJ protections. This Note argues that implementing a peremptory challenge system which would allow each party in an adjudicative hearing to remove the ALJ from hearing its case would create an avenue in which the Court could justify the removal issue. Such a proposal would fix executive oversight concerns about the President being unable to properly implement his policy. Additionally, peremptory challenges would allow litigants in front of an agency be able to remove ALJs they feel are predisposed to the agency. By addressing both constitutional issues, the Court may be more likely to find that the two layers of tenure protection in place are permissible for those in adjudicatory positions.

In Defense of the Supreme Court Decision in Alvarez-Machain

1992 ◽  
Vol 86 (4) ◽  
pp. 736-746 ◽  
Author(s):  
Malvina Halberstam
Keyword(s):  
United States ◽  
Supreme Court ◽  
International Law ◽  
Supreme Court Decision ◽  
The United States ◽  
Court Decision ◽  
Drug Enforcement ◽  
The Supreme Court ◽  
Criminal Suspects ◽  
The Media

In United States v. Alvarez-Machain, the Supreme Court sustained the jurisdiction of a U.S. court to try a Mexican national, charged with various counts of conspiracy, kidnaping and the murder of a U.S. drug enforcement agent in Mexico, even though his presence in the United States was the result of abduction rather than extradition pursuant to the Extradition Treaty between the United States and Mexico. The Court did not hold, as widely reported in the media, that the Treaty permits abduction, that abduction is legal, or that the United States had a right to kidnap criminal suspects abroad. On the contrary, the Court acknowledged that the abduction may have been a violation of international law. It stated, “Respondent and his amici may be correct that respondent’s abduction was ’shocking’ and that it may be in violation of general international law principles.”

The Argument about Ethics, Fairness, or Right and Wrong

1988 ◽  
Vol 18 (4) ◽  
pp. 367-375 ◽  
Author(s):  
Thomas M. Sawyer
Keyword(s):  
United States ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
The United States ◽  
Court Decision ◽  
Appellate Court ◽  
Student Paper ◽  
The Supreme Court

Four of the five issues normally involved in an argument of policy can be persuasively argued on the basis of facts. However, the fourth issue, that of fairness, might better be argued by following the organizational plan of an appellate court decision. The Supreme Court decision in Teminello vs. the United States is offered as an example. The practicality of this plan is illustrated with a student paper.

Sabbatino Resurrected: The Act of State Doctrine in the Revised Restatement of U.S. Foreign Relations Law

1985 ◽  
Vol 79 (1) ◽  
pp. 68-91 ◽  
Author(s):  
Malvina Halberstam
Keyword(s):  
United States ◽  
Supreme Court ◽  
International Law ◽  
Foreign Relations ◽  
Supreme Court Decision ◽  
The United States ◽  
Court Decision ◽  
Foreign State ◽  
The Supreme Court

Among the more controversial provisions of the Restatement of the Foreign Relations Law of the United States (Revised), are the sections dealing with the act of state doctrine in Tentative Draft No. 4. Section 428 provides: “Subject to §429, courts in the United States will refrain from examining the validity of an act of a foreign state taken in its sovereign capacity within the state’s own territory.” This provision, of course, is based on the Supreme Court decision in Sabbatino. The Court there stated, “the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government” even if it is alleged that the taking is contrary to international law.

scholarly journals Third Party Consent Searches Following the Search and Surveillance Act

2012 ◽  
Vol 43 (3) ◽  
pp. 447
Author(s):  
Sam McMullan
Keyword(s):  
United States ◽  
New Zealand ◽  
Property Rights ◽  
Supreme Court ◽  
Living Arrangements ◽  
Supreme Court Decision ◽  
The United States ◽  
Third Party ◽  
Court Decision ◽  
The Supreme Court

Many New Zealanders live in shared living arrangements. The result of this is that reasonable expectations of privacy are becoming more limited. State officials may conduct a lawful search where a person consents to such a search if that person has the authority to consent. Where people live in shared living arrangements, several people may have authority to consent to a search of the same property. This article explores the extent of a third party's power to consent to property searches where more than one person has authority to consent to a search under the Search and Surveillance Act 2012. It argues that the question of reasonable expectations of privacy should not be assessed by reference to property rights. It also considers the concept of "apparent" authority which has arisen in New Zealand from the Court of Appeal's decision in R v Bradley as well as the concept of a present and objecting occupant which has arisen in the United States in the Supreme Court decision of Georgia v Randolph.

Privacy and Constitutional Theory

2000 ◽  
Vol 17 (2) ◽  
pp. 165-185 ◽  
Author(s):  
Scott D. Gerber
Keyword(s):  
United States ◽  
Supreme Court ◽  
Supreme Court Decision ◽  
The United States ◽  
Court Decision ◽  
Constitutional Theory ◽  
Right To Privacy ◽  
Library Catalog ◽  
The Supreme Court ◽  
On Line

There has been a flood of scholarship over the years on whether there is a “right to privacy” in the Constitution of the United States. Griswold v. Connecticut (1965) was, of course, the Supreme Court decision that opened the floodgates to this river of commentary. A subject search for “privacy, right of” in the College of William and Mary's on-line library catalog located 360 book titles. A perusal of the leading law review bibliographic indices turned up still more. Whether the Constitution contains some sort of “right to be let alone” is plainly one of the central questions of contemporary constitutional discourse.

Judicial Review (Departmentalism) vs Supremacy: The Connection to a 17th Century Debate and a Dilemma for Today

ICL Journal ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Boleslaw Z. Kabala
Keyword(s):  
Supreme Court ◽  
Judicial Review ◽  
Separation Of Powers ◽  
Legal Scholar ◽  
State Of Nature ◽  
Judicial Supremacy ◽  
The Supreme Court ◽  
Legislative Branch ◽  
The Difference ◽  
Do So

AbstractProponents of judicial supremacy argue that the interpretation of the Constitution by the Supreme Court is authoritative for the two other branches of government, while advocates of judicial review (or departmentalism) argue that authority to interpret the Constitution resides in each branch. Both sides offer historical examples in which their understanding prevailed. How to resolve this impasse? I argue that Hobbes and Spinoza can inform the debate. To do so, I first unpack the terms: what is the difference between judicial review or departmentalism and judicial supremacy? I then show that a renowned legal scholar, Larry Alexander, specifically invokes Hobbes in defense of judicial supremacy. For Alexander, the Supreme Court functions as a Hobbesian sovereign. Spinoza presents a clear alternative to the Hobbesian solution of avoiding a state of nature by concentrating power in a unitary sovereign, namely, via a strategy of diffusing power throughout society. But Spinoza’s solution is not yet a formal separation of powers. This conception of power can therefore clarify the assumptions made by advocates of both judicial review or departmentalism and judicial supremacy. I close by considering instances in American history when the application of departmentalist logic did not lead to a Hobbesian state of nature. And what are the lessons for today? I suggest that it is perhaps time to consider an analog to the Canadian/Israeli notwithstanding clause. But rather than adopting verbatim their legislative override, which effectively designates the legislative branch to be supreme, we could require two of the three independent and equal branches to decide contended constitutional questions. Such an American notwithstanding clause would respect the design of our federal government.

scholarly journals Let's (Not) Make This Work! Why Stare Decisis Workability Should be a Sword but Not a Shield

2019 ◽  
Author(s):  
Audrey Lynn
Keyword(s):  
United States ◽  
Supreme Court ◽  
Separation Of Powers ◽  
The United States ◽  
United States Supreme ◽  
Constitutional Interpretation ◽  
Stare Decisis ◽  
The Supreme Court ◽  
Lower Courts ◽  
History Of

A factor of the United States Supreme Court’s stare decisis test, workability differentiates precedential rules that have proven easy for lower courts to apply in a consistent and fair manner from those that have not. This note addresses the question of whether workability is a legitimate reason for retaining a given interpretation of a statute. The Note begins by providing an illustration of what this Note will sometimes refer to as the “preservative use” of workability. The Note then lays out the history of workability as a consideration of stare decisis and describes how the factor has changed in recent decades. In so doing, its focus is on workability in the context of statutory interpretation. In order to explain the background and development of the factor, however, it is necessary to discuss specific cases in which the Supreme Court has applied workability in the context of constitutional interpretation. The two contexts must be differentiated for purposes of this Note because the thesis of this Note—i.e., that preserving an incorrect interpretation of a statute because of its relative workability violates separation of powers—has no parallel when a court interprets a constitution because in that case there is no inherent infringement on legislative power. This Note then explains why the change toward using workability to preserve erroneous precedent is not required logically, contravenes the basic purposes of stare decisis, and is constitutionally invalid as a violation of separation of powers. Finally, this Note proposes a new way to articulate the stare decisis test that does not discard workability as a consideration but precludes the preservative use criticized by this Note.

Constitutional Law in 1927–1928: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1927

1929 ◽  
Vol 23 (1) ◽  
pp. 78-101 ◽  
Author(s):  
Robert E. Cushman
Keyword(s):  
United States ◽  
Supreme Court ◽  
Common Sense ◽  
Democratic Party ◽  
Separation Of Powers ◽  
The United States ◽  
Legislative Power ◽  
The Supreme Court ◽  
Constitutional Decisions ◽  
The Cost

A protective tariff is constitutional. While most of us—Democratic party platforms to the contrary notwithstanding—had suspected that this was true, the Supreme Court, curiously enough, never passed on the question until its decision in Hampton v. United States. In that case the plaintiffs attacked the validity of the Tariff Act of 1922 on two grounds. In the first place, the so-called flexible tariff provision embodied in Section 315 was alleged to authorize an unconstitutional delegation of legislative power to the President. That section provides, in substance, that when the President, upon investigation, finds that differences in the cost of production here and abroad of articles produced in this country are not equalized by the tariff duties fixed by the act, he shall thereupon fix such new rates as will equalize these differences. The Court had no difficulty in rejecting this contention under the authority of Field v. Clark, in which the reciprocity sections of the Tariff Act of 1890 were sustained. Chief Justice Taft, speaking for a unanimous Court, reviews the general theory of the separation of powers and the doctrine that legislative power may not be delegated. He emphasizes, however, that each department may properly call upon the others for assistance “so far as the action invoked shall not be an assumption of the constitutional field of action of another branch.” The scope and character of this assistance, furthermore, “must be fixed according to common sense and the inherent necessities of the governmental coördination.”

scholarly journals Characterising price fixing: a journey through the looking glass with ANSAC

2012 ◽  
Vol 11 (3) ◽  
pp. 337-353
Author(s):  
Kasturi Moodaliyar ◽  
Keith Weeks
Keyword(s):  
Supreme Court ◽  
Hard Core ◽  
Supreme Court Decision ◽  
The United States ◽  
Supreme Court Ruling ◽  
Policy Objective ◽  
The Supreme Court ◽  
Or Practice ◽  
Per Se ◽  
Court Of Appeal

In February 2005 the Supreme Court of Appeal of South Africa ruled that in deciding whether firms have contravened section 4(1)(b) of the Competition Act 89 of 1998, as amended, by engaging in, for example, ‘per se’ illegal price fixing, the Competition Tribunal must admit evidence relating to the nature, purpose and effect of the horizontal agreement or practice in question. This article examines the economic and legal rationale, as well as the implications, for allowing an appropriate characterisation of conduct to determine whether such conduct falls within the per se prohibition. Firstly, we comment on the rationale behind the per se rule as a standard for the adjudication of certain types of conduct. We analyse a number of cases in the United States, which, post 1979, revolutionised the approach to the strict per se rule. Secondly, we examine how the per se standard is reflected in the particular structure found in section 4(1) of the Competition Act and evaluate whether it makes for a sufficiently robust application of the per se rule. Thirdly, the content of the Supreme Court decision regarding characterisation is critically examined with a view to assessing whether such characterisation is consistent with the policy objective of achieving maximum deterrence of hard core cartel behaviour like price fixing and market division. Finally, we explore and suggest (in the absence of a Tribunal decision) a possible framework, based on decision theory, for determining a method of characterisation that is consistent with the robust application of the per se standard and is in line with the Supreme Court ruling.

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