scholarly journals CONSTITUTIONAL TRADITIONALISM IN THE ROBERTS COURT

2011 ◽  
Vol 73 (1) ◽  
Author(s):  
Louis J Virelli III
Keyword(s):  
Systematic Analysis ◽  
Government Power ◽  
The Supreme Court ◽  
Controversial Topic ◽  
Future Direction ◽  
Roberts Court ◽  
Key Terms ◽  
Constitutional Jurisprudence ◽  
Empirical Foundation

The debate over the role of traditionalism in constitutional interpretation has itself become a tradition. It remains a popular and controversial topic among constitutional scholars and presents normative questions that are as divisive, difficult, and important today as at the Founding. Missing from the discussion, however, is a comprehensive account of how the Supreme Court has employed traditionalism-an approach that looks for meaning in present manifestations of longstanding practices or beliefs-in its constitutional jurisprudence. This project is the first to fill this gap by providing an exhaustive and systematic analysis of the Court's use of constitutional traditionalism. This article focuses on the Roberts Court's first five terms to provide an empirical foundation that will not only offer previously unavailable insights into the Court's current traditionalist practices, but will also set forth a useful framework for the ongoing normative debate over traditionalism. This project uses content analysis of key terms to identify every instance in which the Roberts Court employed traditionalism to interpret the Constitution. More specifically, this project set out to answer the following three questions: First, how frequently does the Roberts Court employ traditionalism in its constitutional jurisprudence? Second, how robust is the Court's use of traditionalism (i.e., is it used to interpret a broad or narrow range of constitutional provisions)? And finally, how often and in what contexts do individual Justices on the Roberts Court rely on traditionalism in their own constitutional opinions? The research provided here suggests answers to all three of these questions. First, the data indicate that traditionalism has been relied upon regularly by the Roberts Court, appearing in nearly half of the Court's constitutional cases. Second, traditionalism is frequently applied to a wide variety of constitutional provisions: Two-thirds of the constitutional provisions considered by the Roberts Court were subjected to a traditionalist analysis, ranging from provisions pertaining to government power and structure to individual rights. Finally, the data show that although traditionalism is used more frequently by conservative Justices, it is nevertheless employed by all members of the Court in a wide variety of contexts. Although there is more to learn about traditionalism's role in the Court's constitutional jurisprudence, this evidence makes clear that, notwithstanding the normative controversy surrounding traditionalism, any future study of the workings of this Court, its members, or of the future direction of constitutional law in general must take traditionalism into account.

Separation of Powers

2018 ◽  
pp. 77-81
Author(s):  
Eric M. Freedman
Keyword(s):  
Supreme Court ◽  
Separation Of Powers ◽  
Burden Of Proof ◽  
Checks And Balances ◽  
The United Kingdom ◽  
Government Power ◽  
The Supreme Court ◽  
American Law ◽  
Role Allocation

“Separation of powers” means: - “allocation of roles,” assigning government power to appropriate officials and - “checks and balances,” creating mutually-restraining branches. As the Supreme Court of the United Kingdom recognized in 2017 in the context of Brexit, British judges from the sixteenth century onwards enforced the concept of role allocation in many legal situations, including ones invalidating royal actions. The idea passed smoothly, almost silently, into American law. Specifically, the role of the Crown was such that, as a consequence of the legal principal “the King can do no wrong,” the sovereign could not cause a person to suffer a legal hardship unless it was one affirmatively permitted by law. This meant that in habeas cases, the burden of proof was on the jailer to demonstrate a right to detain the prisoner, not on the latter to demonstrate a right to freedom. Post-Independence courts acted accordingly.

scholarly journals American Media

2011 ◽  
Vol 2 (1) ◽  
pp. 25-51
Author(s):  
Tyler Dawson
Keyword(s):  
United States ◽  
The United States ◽  
Fourth Estate ◽  
Government Power ◽  
The Supreme Court ◽  
American Media ◽  
The Media ◽  
The Government ◽  
American Society

This paper discusses the state of the American media in the decade following 9/11. A framework is crafted from the work of previous media theorists and the writing of the Supreme Court of the United States to understand the specific role of the fourth estate in American society. Once this is accomplished, this paper re-evaluates the success of the media in fulfilling its constitutional role, arguing that the media was, in fact, less deferential to the government line than many critics suggest, particularly following the abuses at Abu Ghraib. Finally, the case is made that institutionalised media is necessary to provide a check on government power, and the expansion of democratized news can only fulfil this mandate to a certain extent.

The AMA Guides in Pennsylvania “Post-Protz”: Act 111 and Case Law Update

2020 ◽  
Vol 25 (3) ◽  
pp. 12-19
Author(s):  
Justin D. Beck ◽  
Judge David B. Torrey
Keyword(s):  
Case Law ◽  
General Assembly ◽  
Disability Benefits ◽  
Permanent Disability ◽  
Sixth Edition ◽  
Legal Questions ◽  
The Supreme Court ◽  
Recent Edition ◽  
Impairment Ratings

Abstract Medical evaluators must understand the context for the impairment assessments they perform. This article exemplifies issues that arise based on the role of impairment ratings and what edition of the AMA Guides to the Impairment of Permanent Impairment (AMA Guides) is used. This discussion also raises interesting legal questions related to retroactivity, applicability of prior precedent, and delegation. On June 20, 2017, the Supreme Court of Pennsylvania handed down its decision, Protz v. WCAB (Derry Area Sch. Dist.), which disallows use of the “most recent edition” of the AMA Guides when determining partial disability entitlement under the Pennsylvania Workers’ Compensation Act. An attempted solution was passed by the Pennsylvania General Assembly and was signed into law Act 111 on October 24, 2018. Although it affirms that the AMA Guides, Sixth Edition, must be used for impairment ratings, the law reduces the threshold for total disability benefits from 50% to 35% impairment. This legislative adjustment benefited injured workers but sparked additional litigation about whether, when, and how the adjustment should be applied (excerpts from the laws and decisions discussed by the authors are included at the end of the article). In using impairment as a threshold for permanent disability benefits, evaluators must distinguish between impairment and disability and determine an appropriate threshold; they also must be aware of the compensation and adjudication process and of the jurisdictions in which they practice.

A Review of the Role of Cue Processing in Task Switching

2013 ◽  
Vol 221 (1) ◽  
pp. 5-14 ◽  
Author(s):  
Kerstin Jost ◽  
Wouter De Baene ◽  
Iring Koch ◽  
Marcel Brass
Keyword(s):  
Cognitive Control ◽  
Task Switching ◽  
Task Switch ◽  
Task Set ◽  
Switch Costs ◽  
Set Switching ◽  
Controversial Topic ◽  
Cue Encoding ◽  
Cue Processing

The role of cue processing has become a controversial topic in research on cognitive control using task-switching procedures. Some authors suggested a priming account to explain switch costs as a form of encoding benefit when the cue from the previous trial is repeated and hence challenged theories that attribute task-switch costs to task-set (re)configuration. A rich body of empirical evidence has evolved that indeed shows that cue-encoding repetition priming is an important component in task switching. However, these studies also demonstrate that there are usually substantial “true” task-switch costs. Here, we review this behavioral, electrophysiological, and brain imaging evidence. Moreover, we describe alternative approaches to the explicit task-cuing procedure, such as the usage of transition cues or the task-span procedure. In addition, we address issues related to the type of cue, such as cue transparency. We also discuss methodological and theoretical implications and argue that the explicit task-cuing procedure is suitable to address issues of cognitive control and task-set switching.

Putting the Madhyamaka Trick in Context: A Contextualist Reading of Huntington’s Interpretation of Madhyamaka

2014 ◽  
Vol 31 (1) ◽  
pp. 91-124
Author(s):  
Michael Dorfman
Keyword(s):  
Fifteenth Century ◽  
Common Ground ◽  
Correspondence Theory ◽  
The Body ◽  
Rational Analysis ◽  
At Command ◽  
Rational Argumentation ◽  
Logical Fallacies ◽  
Key Terms

In a series of works published over a period of twenty five years, C.W. Huntington, Jr. has developed a provocative and radical reading of Madhyamaka (particularly Early Indian Madhyamaka) inspired by ‘the insights of post- Wittgensteinian pragmatism and deconstruction’ (1993, 9). This article examines the body of Huntington’s work through the filter of his seminal 2007 publication, ‘The Nature of the M?dhyamika Trick’, a polemic aimed at a quartet of other recent commentators on Madhyamaka (Robinson, Hayes, Tillemans and Garfield) who attempt ‘to read N?g?rjuna through the lens of modern symbolic logic’ (2007, 103), a project which is the ‘end result of a long and complex scholastic enterprise … [which] can be traced backwards from contemporary academic discourse to fifteenth century Tibet, and from there into India’ (2007, 111) and which Huntington sees as distorting the Madhyamaka project which was not aimed at ‘command[ing] assent to a set of rationally grounded doctrines, tenets, or true conclusions’ (2007, 129). This article begins by explicating some disparate strands found in Huntington’s work, which I connect under a radicalized notion of ‘context’. These strands consist of a contextualist/pragmatic theory of truth (as opposed to a correspondence theory of truth), a contextualist epistemology (as opposed to one relying on foundationalist epistemic warrants), and a contextualist ontology where entities are viewed as necessarily relational (as opposed to possessing a context-independent essence.) I then use these linked theories to find fault with Huntington’s own readings of Candrak?rti and N?g?rjuna, arguing that Huntington misreads the semantic context of certain key terms (tarka, d???i, pak?a and pratijñ?) and fails to follow the implications of N?g?rjuna and Candrak?rti’s reliance on the role of the pram??as in constituting conventional reality. Thus, I find that Huntington’s imputation of a rejection of logic and rational argumentation to N?g?rjuna and Candrak?rti is unwarranted. Finally, I offer alternate readings of the four contemporary commentators selected by Huntington, using the conceptual apparatus developed earlier to dismiss Robinson’s and Hayes’s view of N?g?rjuna as a charlatan relying on logical fallacies, and to find common ground between Huntington’s project and the view of N?g?rjuna developed by Tillemans and Garfield as a thinker committed using reason to reach, through rational analysis, ‘the limits of thought.’

The Role of Evaluative Tools in the Creation of the Memorial Media Portrait of Jacques Chirac (1932—2019)

2020 ◽  
pp. 97-110
Author(s):  
E. N. Mikhailova ◽  
V. A. Telegina
Keyword(s):  
Print Media ◽  
Political Elite ◽  
Systematic Analysis ◽  
Research Material ◽  
Political Orientations ◽  
Different Types ◽  
The Media ◽  
The Creation ◽  
Entire Text

The article is devoted to the study of evaluative tools used in modern French media in order to form the media image of a representative of the political elite. The techniques used in the creation of a memorial media portrait of Jacques Chirac (1932—2019), President of France from 1995 to 2007 are considered. The research material was the most prestigious French print media of various political orientations, published in late September — early October 2019 in connection with the death of the ex-President of the French Republic. The relevance of the research topic is dictated by the close attention of modern linguistics to axiological phenomena, differently presented in different types of discursive practices. The novelty of the study is due to the appeal to the analysis of the complex of evaluation tools used in the French print media when characterizing the former leader of the state during the nation’s farewell period. The estimated potential of the title of the article and its influence on the formation of the estimated vector of the entire text of the publication are shown. A systematic analysis of the assessment expression means, reflected in the memorial media portrait of the politician, is given. The factors that influenced the peculiarities of their use in this type of media portrait are revealed.

Civil Jurisdiction, Settler Politics, and the Colonial Constitution, circa 1840-58

2008 ◽  
Vol 39 (3) ◽  
pp. 497 ◽  
Author(s):  
Damen Ward
Keyword(s):  
Lower Court ◽  
Parliamentary Debates ◽  
Early Colonial ◽  
Responsible Government ◽  
The Supreme Court ◽  
Competing Ideas ◽  
Politics And Law ◽  
The Relationship ◽  
Institutional Relationships

In early colonial politics, decisions about lower court jurisdiction often reflected competing ideas about the relationship between different parts and functions of government. In particular, court structure and jurisdiction could be seen as having important implications for the role and power of the governor. Appreciating the importance of jurisdiction as a way of defining, and arguing about, the distribution and exercise of political and legal authority in the colonial constitution allows connections to be drawn between different elements of settler politics in the 1840s and 1850s. The closing of the Court of Requests by Governor Grey in 1848, and the decisions of the Supreme Court judges in subsequent litigation, provide examples of this. Debate over the role of the governor in emerging systems of representative and responsible government after 1852 contributed to lower court jurisdiction remaining politically significant, particularly in relation to Māori.  This is shown by considering parliamentary debates about the Stafford ministry's 1858 proposals for resident magistrates' jurisdiction over "native districts". The politics of jurisdiction were part of wider contests about the establishment and consolidation of particular political and institutional relationships within the colonial constitution. This multi-faceted construction of government authority suggests a need to reconsider elements of Pākehā colonial politics and law.

Remote Proceedings in the Supreme Court of the Russian Federation

2020 ◽  
Vol 2 (3) ◽  
pp. 100-118
Author(s):  
A. S. German ◽  
Keyword(s):  
Supreme Court ◽  
Russian Federation ◽  
Theoretical Basis ◽  
Information Technologies ◽  
Systematic Approach ◽  
Systematic Analysis ◽  
Social Distancing ◽  
Legal Proceedings ◽  
The Supreme Court ◽  
The Russian Federation

Introduction. Currently, the Supreme Court of the Russian Federation, like many state bodies, is faced with a global challenge – the coronavirus pandemic, which has affected all public processes. The need for social distancing has contributed to the more active use of modern technologies that facilitate remote court hearings. Theoretical basis. Methods. The theoretical basis of the study were the Russian and foreign scientific works devoted to the problems of introducing information technologies into judicial activity. The methodological basis of the study was a systematic approach that made it possible to consider the possibilities of remote justice in its relationship to significant factors of a legal and organisational nature. The study used the methods of logical generalisations, analysis and synthesis, together with a systematic approach and the method of comparative jurisprudence. Results. The article briefly presents the results of a systematic analysis of measures carried out by the Supreme Court of the Russian Federation aimed at ensuring the widespread use of remote technologies in the administration of justice. Discussion and Conclusion. Given the current pandemic situation, the Supreme Court of the Russian Federation has introduced integrated related web conferencing and video conferencing technologies for remote court hearings. These technologies began to be actively used by courts during the pandemic period. Their application ensures a reasonable time frame for legal proceedings and makes it possible to ensure the availability of justice even in conditions of social distancing. The undoubted advantage of remote technologies is their potential to reduce procedural costs in the course of legal proceedings. However, the issues under consideration require further research, as well as preparation of conceptual suggestions to the legislator aimed at optimising procedural legislation.

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