scholarly journals Estimating Judicial Ideology

2021 ◽  
Vol 35 (1) ◽  
pp. 97-118
Author(s):  
Adam Bonica ◽  
Maya Sen

We review the substantial literature on estimating judicial ideology, from the US Supreme Court to the lowest state court. As a way to showcase the strengths and drawbacks of various measures, we further analyze trends in judicial polarization within the US federal courts. Our analysis shows substantial gaps in the ideology of judges appointed by Republican Presidents versus those appointed by Democrats. Similar to trends in Congressional polarization, the increasing gap is mostly driven by a rightward movement by judges appointed by Republicans. We conclude by noting important avenues for future research in the study of the ideology of judges.

2019 ◽  
Vol 22 (1) ◽  
pp. 261-276 ◽  
Author(s):  
Richard L. Hasen

The increased polarization in the United States among the political branches and citizenry affects the selection, work, perception, and relative power of state and federal judges, including justices of the US Supreme Court. Polarization in the United States over the last few decades matters to the American judicial system in at least four ways. First, polarization affects judicial selection, whether the selection method is (sometimes partisan-based) elections or appointment by political actors. In times of greater polarization, governors and presidents who nominate judges, legislators who confirm judges, and voters who vote on judicial candidates are more apt to support or oppose judges on the basis of partisan affiliation or cues. Second, driven in part by selection mechanisms, polarization may be reflected in the decisions that judges make, especially on issues that divide people politically, such as abortion, guns, or affirmative action. The Supreme Court, for example, often divides along party and ideological lines in the most prominent and highly contested cases. Those ideological lines now overlap with party as we enter a period in which all the Court liberals have been appointed by Democratic presidents and all the Court conservatives have been appointed by Republican presidents. Third, increasingly polarized judicial decisions appear to be causing the public to view judges and judicial decision making (at least on the US Supreme Court) through a more partisan lens. Fourth, polarization may affect the separation of powers, by empowering courts against polarized legislative bodies sometimes paralyzed by gridlock. The review concludes by considering how increased polarization may interact with the judiciary and judicial branch going forward and by suggesting areas for future research.


2015 ◽  
Vol 16 (3) ◽  
pp. 37-42
Author(s):  
Richard Parrino ◽  
Douglas Schwab ◽  
David Wertheimer

Purpose – The purpose of this article is to examine the US Supreme Court’s much anticipated decision in Omnicare, Inc. v. Laborers Dist. Council Const. Indus. Pension Fund. In this 2015 case, the Supreme Court announced important principles for interpreting the application of the two bases for liability under Section 11 of the Securities Act of 1933 to statements of opinion expressed in registration statements filed with the Securities and Exchange Commission in connection with public securities offerings. Design/methodology/approach – The article examines the Supreme Court’s articulation of the standards federal courts must apply under Section 11 to determine if opinion statements were untrue statements of a material fact or misleading because they omitted material facts necessary to make the statements of opinion not misleading. The paper identifies a number of the complexities involved in the Supreme Court’s approach and emphasizes the nuanced assessment of the facts surrounding opinion statements courts will be required to undertake by Omnicare. Findings – The Omnicare decision has significant implications for the litigation of Section 11 claims challenging statements of opinion and for the preparation of registration statement disclosures. The Omnicare decision dramatically alters the standards for reviewing Section 11 claims premised on opinions long applied in a number of US federal appellate circuits. The decision is likely to result in more Section 11 claims based on supposedly misleading opinion statements, and potentially in a greater number of Section 11 claims that survive at least an initial motion to dismiss. Omnicare highlights the importance of including in registration statement disclosures meaningful cautionary statements identifying important facts that could cause actual outcomes to differ materially from views expressed in an opinion. Originality/value – Expert guidance from experienced financial services lawyers.


Author(s):  
Joseph Daniel Ura ◽  
Patrick C. Wohlfarth

Abstract A growing body of empirical research shows an association between public support for the US Supreme Court and both judicial independence and congressional court curbing activity. At the same time, studies of jurisdiction stripping show Congress’ efforts to limit federal courts’ jurisdiction are principally related to courts’ workloads rather than ideological differences between courts and Congress. Here, the authors connect these streams of inquiry by testing the hypothesis of a negative relationship between public support for the Supreme Court and jurisdiction-stripping legislation. Contrary to prior studies, the authors find a positive relationship between Americans’ confidence in the Supreme Court and jurisdiction stripping. This result indicates the need for additional research on the interactions among public opinion, federal courts, and Congress.


2021 ◽  
Vol 22 (22) ◽  
pp. 1-65
Author(s):  
胡心蘭 胡心蘭

美國聯邦最高法院自1994年於Campbell v. Acuff-Rose Music案將「轉化性(Transformativeness)」此一判斷要素帶入美國著作權法合理使用原則後,轉化性之認定幾乎與合理使用之成立畫上等號,扮演著左右判決結果的關鍵角色。惟轉化性要素原本就不在美國著作權法第107條所示之法定要件之列,而係第一項要件「利用行為之目的與性質」下的判斷方式之一,且其內涵混沌不明,如何判斷利用行為是否具有「進一步之目的或不同之特色而增添了新的東西」?美國各級法院之詮釋分歧,莫衷一是。惟在近兩年美國著作權侵權之相關案例中,似乎有將判斷重心回歸美國著作權法第107條合理使用原則之四項法定要件之趨勢,尤其是第四項「利用行為對被利用著作之潛在市場或價值之影響」似又重回「最重要之單一要件」之姿。而美國聯邦最高法院於近日受理Google LLC v. Oracle America案,亦將無可避免地的需再次梳理美國著作權法合理使用原則之脈絡與適用範圍,有望釐清轉化性要素之於合理使用原則應有之地位。本文將先簡述轉化性要素之背景與適用上之分歧,接著分析近兩年相關案例所呈現的新趨勢,以期對著作權合理使用原則有更完整之理解。Since the Supreme Court of the United States introduced the element of ''transformativeness'' in the 1994 case Campbell v. Acuff-Rose Music into the fair use doctrine under U.S. Copyright Law, the finding of transformativeness is almost equal to the finding of fair use. However, transformative elements were not included in the statutory factors of fair use doctrine under the section 107 of the US Copyright Law, and the U.S. federal courts have interpreted the meaning of ''transformation'' respectively, which divided interpretations results in no certainty of which kind of secondary use could constitute as ''transformative use.'' Yet, in the past two years, the relevant copyright infringement cases indicated different trends, and rather than focus on the transformative elements under the first factor of the fair use doctrine, these courts were more willing to consider all four statutory factors of the fair use doctrine, especially the fourth factor - ''The single most important element of fair use.'' Furthermore, the US Supreme Court recently grants certriori to review Google LLC v. Oracle America, in which the Court would address: 1.Whether the copyright protection extends to a software interface; 2. Whether, as the jury found, petitioner’s use of a software interface in the context of creating a new computer program constitutes fair use. As to the second issue, the Court inevitably has to interpret the context and scope of transformative use, and its relationship with other factors of the fair use doctrine, which would lead to solve the dilemma of ''transformativeness'' under U.S. Copyright Law.


Author(s):  
Christoph Bezemek

This chapter assesses public insult, looking at the closely related question of ‘fighting words’ and the Supreme Court of the United States’ decision in Chaplinsky v New Hampshire. While Chaplinsky’s ‘fighting words’ exception has withered in the United States, it had found a home in Europe where insult laws are widely accepted both by the European Court of Human Rights and in domestic jurisdictions. However, the approach of the European Court is structurally different, turning not on a narrowly defined categorical exception but upon case-by-case proportionality analysis of a kind that the US Supreme Court would eschew. Considering the question of insult to public officials, the chapter focuses again on structural differences in doctrine. Expanding the focus to include the Inter-American Court of Human Rights (IACtHR) and the African Court on Human and Peoples’ Rights (ACtHPR), it shows that each proceeds on a rather different conception of ‘public figure’.


PEDIATRICS ◽  
1996 ◽  
Vol 97 (2) ◽  
pp. 254-257
Author(s):  
ARI J. SCHWARTZ ◽  
LAWRENCE R. RICCI

Unlike the severe abuse that was reported in early child abuse literature, more moderate injuries comprise 60% of physical child abuse. These less-severe abuse cases, many with limited, ill-defined bruising, may be more difficult to diagnose than a severe case with multiple-system injury or a child with specific, clearly imprinted bruising. Additionally, as the US Supreme Court observed, "Child abuse is one of the most difficult crimes to detect and prosecute in large part because there often are no witnesses except the victim. Estimates of ages of bruises along with the aging of other injuries such as fractures and brain trauma may offer the only way to associate an injury with a particular perpetrator. Yet, as an aid to child abuse diagnosis and perpetrator identification, visual aging of bruises remains an inexact science, despite recent composite charts that suggest otherwise. Even though it has been stated that it is not possible to age bruises accurately based on color, these opinions have not been represented in the child abuse literature. The study of Langlois and Gresham, to date the only research-based study of bruise aging by appearance, has not yet been cited in the medical literature (Science Citation Index search, August 1994). The available literature does not permit the estimation of a bruise's age with any precision based solely on color. Even for the practitioner to state, as Wilson suggests, that a particular bruise is "consistent with" a specific age implies a level of certainty not supported by the literature. Bruises may be described as "older" if yellow, brown, or green are present, but practitioners should note the limitations of bruise age analysis. Of course, the practitioner must continue to describe the size, shape, location, and color of each bruise accurately. This is best done by written description and drawings along with careful photographic representation. Photographs of a bruise, however, depending on available light and technique, may not represent color accurately. A standard color wheel in the photograph may help. Future research should focus on a number of questions. A study of the aging of bruises, using contusions of known age and history-blinded examiners, could determine how accurate clinical estimates are. Interobserver reliability may also be assessed in such a study. The study of Langlois and Gresham should be repeated to confirm or to refute their findings. A photographic sequence of various bruises from appearance to resolution would give researchers and clinicians a reference of possible colors in different-aged bruises for standardized description. The estimated age of a bruise should never be the sole criteria for a diagnosis of child abuse, but, rather, one component of a comprehensive assessment that incorporates a careful history of the injury, past medical history, family history, associated risk factors, a detailed physical examination, and appropriate laboratory testing.


2015 ◽  
Vol 10 (1) ◽  
pp. 1-23
Author(s):  
András Koltay

The issue of the use of religious symbols by the State, the Government, the Municipalities and Courts has emerged as a practical constitutional problem during the last quarter of a century. Contradictory examples of us Supreme Court jurisprudence prove that this issue is among the constitutional ‘hard cases’. The relatively recent appearance of the problem clearly indicates the ways in which American social conditions have changed and the transformation of us society’s attitude to religion.


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