Separation-of-Powers Games in the Positive Theory of Congress and Courts

1997 ◽  
Vol 91 (1) ◽  
pp. 28-44 ◽  
Author(s):  
Jeffrey A. Segal
Keyword(s):  
Supreme Court ◽  
Voting Behavior ◽  
Separation Of Powers ◽  
Policy Preferences ◽  
Positive Theory ◽  
Institutional Structures ◽  
Attitudinal Model

The hallmark of the new positive theories of the judiciary is that Supreme Court justices will frequently defer to the preferences of Congress when making decisions, particularly in statutory cases in which it is purportedly easy for Congress to reverse the Court. Alternatively, judicial attitudinalists argue that the institutional structures facing the Court allow the justices to vote their sincere policy preferences. This paper compares these sincere and sophisticated models of voting behavior by Supreme Court justices. Using a variety of tests on the votes of Supreme Court justices in statutory cases decided between 1947 and 1992, I find some evidence of sophisticated behavior, but most tests suggest otherwise. Moreover, direct comparisons between the two models unambiguously favor the attitudinal model. I conclude that the justices overwhelmingly engage in rationally sincere behavior.

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.

Correction to “Separation-of-Powers Games in the Positive Theory of Congress and Courts”

1998 ◽  
Vol 92 (4) ◽  
pp. 923-926 ◽  
Author(s):  
Jeffrey A. Segal
Keyword(s):  
Separation Of Powers ◽  
Supreme Court Decision ◽  
Positive Theory ◽  
Optimal Behavior ◽  
Attitudinal Model ◽  
Constraint Set ◽  
Indifference Points ◽  
Corrected Data ◽  
Conference Committee ◽  
Irreversible Decisions

In my article, “Separation-of-Power Games in the Positive Theory of Congress and Courts” (Segal 1997) I compared the theoretical and empirical validity of the separation-of-powers model and the judicial attitudinal model as applied to U.S. Supreme Court decision making. I found that the preferences of the justices often fell inside the set of irreversible decisions, and that even when the preferences fell outside the set, the justices, with the exception of Earl Warren, showed little evidence of constraint. I concluded, consistent with the attitudinal model, that the justices overwhelmingly engaged in rationally sincere behavior.Tim Groseclose and Sara Schiavoni (1998), whom I thank for their efforts, have alerted me to two errors in my calculation of the set of irreversible decisions. First, I used the formula 2CC-G (where CC = the conference committee and G = the gatekeeper) for calculating indifference points in the constraint set rather than 2G-CC. Second, I implicitly allowed Congress to pass legislation that would be vetoed and could not be overridden. Correcting this error changes the optimal behavior of the conference committee, which will not propose legislation that can be vetoed but cannot be overriden, and the gatekeepers, who must consider the conference committee's actions.In this note I replicate the study using the corrected data and find first that the sets of irreversible decisions are a bit broader than I had originally found. This means that fewer justices could be constrained by Congress than I had originally concluded.

Supreme Court Voting and Realigning Issues: A Microlevel Analysis of Supreme Court Policy Making and Electoral Realignment

1989 ◽  
Vol 13 (3) ◽  
pp. 255-283
Author(s):  
John B. Gates
Keyword(s):  
Supreme Court ◽  
Policy Change ◽  
Policy Making ◽  
Voting Behavior ◽  
Party System ◽  
Separation Of Powers ◽  
National Policy ◽  
Structural Factors ◽  
Congressional Voting ◽  
Electoral Support

Realignment of the American party system is a major focus for students of voting behavior, congressional policy making, and political history (Key, 1955; Burnham, 1970; Clubb, Flannigan, and Zingale, 1980; Kleppner, 1979; Sundquist, 1973; Campbell, 1977; Trilling and Campbell, 1980; Ladd and Hadley, 1978; Brady and Stewart, 1982; Brady, 1985; Sinclair, 1982). The transformation of the party system encompasses significant shifts in electoral support for the major political parties, changes in congressional policy making, and a redirection of national policy making. The rise of new party eras is intriguing because the constitutional structure seeks to minimize such major institutional and policy change. The separation of powers, federalism, and different recruitment patterns for political leaders are structural factors inhibiting major policy change (Brady, 1985). Realignment overcomes these barriers as highly volatile and cross-cutting issues arise. These issues produce linkages between electoral choice, congressional voting, and the broad shape of national policy making.

Scientific Commentary on the Review of Judicial Practice on Some Issues of the Application of Legislation on Business Entities

2021 ◽  
Vol 6 ◽  
pp. 27-32
Author(s):  
V. K. Andreev ◽  
Keyword(s):  
Public Relations ◽  
Supreme Court ◽  
Russian Federation ◽  
Separation Of Powers ◽  
Civil Code ◽  
Judicial Practice ◽  
The Supreme Court ◽  
The Russian Federation ◽  
Business Entities ◽  
Law Making

The article discusses the forms of clarification on matters of judicial practice by the Plenum of the Supreme Court of the Russian Federation, the Presidium of the Supreme Court, as well as in the Review of judicial practice on some issues of the application of legislation on business companies dated December 25, 2019. Clarifications of the Supreme Court of the Russian Federation on issues of judicial practice are characterized as the positions of the courts identified in the course of studying and summarizing the judicial practice of the corresponding category of cases, which are acts of individual regulation of public relations. Focusing on Art. 6 of the Civil Code of the Russian Federation and Section 6, Art. 12 of the APC RF shows the validity of dividing wrong into two types of wrong: the «moderate» type of «judicial law-making and the position of the court» and the «radical» type of «judicial law-making», when the court develops the rule of law, which contradicts the constitutional principle of separation of powers. When resolving corporate disputes, it is necessary to investigate whether the charter of a non-public company does not contain the rights and obligations of its participants, which they themselves created by making a unanimous decision and including them in the charter of the company (paragraph 3 of Art. 66.3 of the Civil Code of the Russian Federation, paragraph 3 of Art. 14 of the Law about LLC).

scholarly journals Is The Pcaob a “Heavily Controlled Component” Of The Sec?: An Essential Question In The Constitutional Controversy

2009 ◽  
Vol 71 (3) ◽  
Author(s):  
Donna M. Nagy
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Free Enterprise ◽  
Public Companies ◽  
The Public ◽  
Sarbanes Oxley ◽  
Public Company ◽  
Essential Question ◽  
The U.S

The U.S. Supreme Court recently heard oral arguments in Free Enterprise Fund v. Public Company Accounting Oversight Board, described as “the most important separation-of-powers case regarding the President’s appointment and removal powers to reach the courts in the last 20 years.” Established by Congress as the cornerstone of the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley” or the “Act”), the Public Company Accounting Oversight Board (the “PCAOB” or the “Board”) was structured as “a strong, independent board to oversee the conduct of the auditors of public companies.” Its principal mission was to prevent the type of auditing failures that contributed to the scandals at Enron, WorldCom, and numerous other public companies in the period leading up to the passage of the Act.

scholarly journals SEPARAÇÃO DOS PODERES E A EVOLUÇÃO DO ENTENDIMENTO DO STF SOBRE O MANDADO DE INJUNÇÃO

2020 ◽  
Vol 1 (54) ◽  
pp. 556
Author(s):  
Vidal Serrano NUNES JUNIOR ◽  
Marcio Ortiz MEINBERG
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
The Other ◽  
Constitutional Rights ◽  
Normative Function ◽  
The Subject ◽  
The Relationship ◽  
Analytical Dimension

RESUMOTrata-se de artigo cujo objetivo é identificar o entendimento do Supremo Tribunal Federal - STF sobre a Separação dos Poderes no que se refere à natureza do Mandado de Injunção, um remédio constitucional a ser concedido em caso de omissão do Poder Público em editar norma regulamentadora necessária para viabilizar o exercício dos direitos e liberdades constitucionais e das prerrogativas inerentes à nacionalidade, à soberania e à cidadania. O entendimento histórico do STF sobre o tema não é consensual e são percebidas ao menos duas grandes correntes às quais se afiliaram os ministros: Teoria Concretista e Teoria Não-Concretista (além de suas subdivisões). As duas grandes correntes diferenciam-se radicalmente, tanto no que se refere ao relacionamento entre o Judiciário e os demais Poderes, quanto aos efeitos do Mandado de Injunção. Além disso, o entendimento do STF evoluiu historicamente, não apenas quanto ao posicionamento majoritária da Corte em torno de alguma das teorias, mas também quanto ao desenvolvimento de cada uma delas. A partir da análise das principais decisões do STF sobre o tema, sistematizaremos as características centrais de cada uma das correntes (e como se diferenciam), bem como suas fundamentações e evolução. A metodologia adotada é a Dogmática Jurídica (cf. Alexy e Dreier), com foco nas dimensões empírica (pela análise das decisões do STF) e analítica (estabelecendo definições e sistematizando os conceitos utilizados pelos ministros do STF). Como conclusão, apresentaremos as características centrais de cada uma das teorias adotadas pelo STF no que se refere ao tema Separação dos Poderes.PALAVRAS-CHAVE: Separação dos Poderes; Mandado de Injunção; Função Normativa. ABSTRACTThe purpose of this article is to identify how Supremo Tribunal Federal – STF (Brazilian’s Supreme Court) sees the Separation of Powers related to the nature of the Writ of Injunction, a constitutional remedy (relief) to be granted in case of Public Power’s omission in enacting a regulatory norm needed to enable the exercise of constitutional rights and freedoms and the prerogatives inherent in nationality, sovereignty and citizenship. The historical opinion of the STF on this subject is not consensual, and there is at least two major currents in which the ministers-judges have joined: Concretist Theory and Non-Concretist Theory (and its subdivisions). The two major currents differ radically, either about the relationship between the Judiciary and the other Powers, as about the effects of the Writ of Injunction. Besides, the STF’s opinion has evolved historically, not only regards the majority position of the Court around one of the theories, but also as to the development of each of them. After analysing the main STF’s decisions on the subject, we systematize the central characteristics of each of the currents (and how they differ from each other), as well as their foundations and evolution. The methodology is the Legal Dogmatic (according Alexy and Dreier), with focus on the empirical dimension (the analysis of STF’s decisions) and analytical dimension (the establishment of definitions and the systematization the concepts used by the STF’s ministers-judges). In conclusion, we present the central characteristics related to Separation of Powers of each one the theories adopted by the STF.KEYWORDS: Separation of Powers; Writ of Injunction; Normative Function.

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