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Women's health is widely assumed to be a central consideration in reproductive rights cases. I examine court decisions relating to contraception, abortion and childbirth and demonstrate that while this assumption has historical validity, consideration of women's reproductive health as a protectable interest is declining in reproductive health cases. This is being accomplished in significant part through application of one or both of two recurring devices. First, judges regularly -- and often inaccurately -- cite the theoretical availability of alternative reproductive health services as proof that women's health won't suffer even if a law curtailing reproductive rights is upheld. I label this the "availability tool." Second, when alternatives are not available, decisions blame women for the lack of availability. I call this the "culpability tool." Application of the availability and culpability tools in reproductive health cases regularly results in a truncated analysis of how laws impact women's reproductive health. I show that while the availability and culpability tools can be applied in a manner that appropriately considers women's health interests, in practice, the tools are often used incorrectly, and thus may contribute to the undervaluing of women's health in reproductive health jurisprudence. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper will address what the antidiscrimination laws should do to counter the use of automatic stereotypes in employment decisions. One area of particular interest is what legal framework courts should apply to individual disparate treatment claims at the summary judgment stage. The Fourth and Ninth Circuits permit a plaintiff claiming employment discrimination to avoid a defendant's motion for summary judgment by producing evidence that a forbidden characteristic at least played a role in the decision. This framework is a step towards directly rooting out implicit bias by allowing a plaintiff to articulate a mixed motive case and support it with rather minimal evidence that a forbidden characteristic played a role in the decision at least at the summary judgment stage. In this paper, I will argue, however, that the use of the motivating factor framework at summary judgment actually may have a greater, though more indirect, effect on the implicit biases of decision-makers. Specifically, employers will be forced to think about what their motives really are when making a decision. Psychological research has shown that increased attention to decision-making reasons can have a positive effect on the recognition that automatic stereotypes may be playing a role in a particular decision; thus, forcing employers to afford more attention to the reasons behind their employment decisions is a promising step in rooting out implicit bias. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper describes the operating mechanisms utilized in day-to-day practice by an east coast, urban drug court and one of its affiliated treatment programs. I offer an analysis as to how "addiction" is defined by various involved parties, as well as a discussion as to how defendants/clients perceive and relate to the treatment process. Due to inequitable policing, 98% of the court's defendants are African-American or Latino, and almost all are members of the working-class, marginally employed, or unemployed. Screening procedures utilized by the court send those with more secure housing and employment to out-patient facilities, while those in less stable situations are sent to residential facilities. Client aspirations to resolve issues concerning drugs are almost uniformly bound up with a desire for upward mobility. These desires are partly met by the court's aim to turn defendants into what it terms "NORPs": Normal, Ordinary, Responsible Persons. Counselors emphasize that the court requires more than the cessation of drug use, and many of the therapeutic techniques seem targeted toward enabling employment within the lower strata of the working class (being on time for all appointments, following all rules, and receiving abuse without response are all required elements for program success). Approximately half of the clients "bought into" the treatment plan, while the other half evidenced an extremely skeptical or hostile attitude. Clients frequently cited job training as the most beneficial aspect of treatment, and expressed a wide variety of opinions regarding the value of other therapeutic practices. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In over sixty years of operation, the Supreme Court of Japan has struck down only eight statutes and upheld a total of only twelve constitutional challenges to government action. Scholars have offered competing explanations for this record of passivity that range from the conservatism of the justices and the bureaucratic structure of the Japanese judiciary to the exercise of indirect political control by the long-ruling Liberal Democratic Party. Drawing on interviews conducted by the author with a variety of Japanese judges-including seven current or former members of the Supreme Court-this paper sets forth an institutional account of why the judiciary has failed to take a more active role in enforcement of the Japanese Constitution, and how it could be changed to ensure that it takes such a role. First, I describe, from bottom to top, the institutional structures that currently render the Supreme Court extremely unlikely to decide constitutional cases in a liberal or active fashion. These include the education, recruitment and promotion of Japan's career judges; the screening and selection of Supreme Court justices; the resource limitations and practical constraints faced by a sitting justice; and the influence of the chief justice and select administrators within the judiciary over the behavior of the lower courts and the composition of the Supreme Court. Second, I argue that these institutional structures create not an inherently conservative judiciary, but rather one that conforms to the sensibilities of its internal leadership and is therefore capable of responding quickly to a change in said leadership. Japan's post-war history of nearly unbroken one-party rule has highlighted the judiciary's bureaucratically enforced tendencies toward caution and uniformity, but it has also obscured the judiciary's institutional capacity for a rapid change in ideological direction. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In the wake of the horrific terrorist attacks on Mumbai in November 2008, there is growing pressure for the enactment of a new anti-terrorism law. In 2004, the Congress Government repealed the Prevention of Terrorism Act ("POTA"), due to widespread criticism that the act's draconian preventive provisions had been badly manipulated and abused by state and local elites against the lower classes or religious minorities.This paper examines the failures of the POTA regime in order to understand how future anti-terrorism regimes can be made more effective and less subject to abuse. I start by analyzing the role of the Indian judiciary in the implementation of past anti-terror laws such as the National Security Act (the A.K. Roy case (1982), the Terrorist and Disruptive Activities Act (the Kartar Singh case (1994), and POTA (2003). In each case, the Court has upheld deeply flawed laws on the grounds that anti-terror legislation lies within the realm of "extraordinary law." In this paper, I revisit these decisions and argue that the Court in the future should adopt a more assertive and proactive role in scrutinizing future anti-terror legislation, in order to ensure that future regimes are effective and not abused by state elites. Indian leaders must learn from the mistakes of POTA in designing a new law that centralizes power and control over anti-terrorism policy, and provides for strong judicial review and oversight of its implementation. I conclude by contrasting Indian case law with U.S. Supreme Court and federal court decisions in this area. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In the hundred years before the United States Supreme Court declared miscegenation statutes unconstitutional in Loving v. Virginia, state courts decided thirteen recorded race-based annulment cases. This article presents a unified analysis of all race based annulment cases for the first time. Simultaneously public and private affairs, these dramas impacted far more than the individual couples or courtrooms, sending out shockwaves that reverberated beyond their points of origin. The results of the cases are startling and contrary to previous work on the subject.Using this unique set of cases, this article argues that while declaring these women white appears like a deviation from white supremacy, the courts' decisions were used to preserve white racial dominance. Through the annulment case decisions, the court stepped in to protect women with a taint of blackness, declaring them pure and worthy of the mantle of whiteness. By legally erasing the women's potential racial taint, the court seemingly chooses to protect obedient women against their husbands, affirming marriage and domesticity over racial prejudices. In contrast, the court acted to protect the ideology of whiteness. To preserve notions of white womanhood, this status had to be defended, even as it violated standards of racial purity. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Debates over judicial handling of mass torts litigants typically divide into two competing camps: those who emphasize individual autonomy and those who emphasize "collective" justice through utilitarian-based efficiency and finality. This Article suggests that there is a third way to view nonclass aggregation of mass torts, a way that is distinct from both individual autonomy and efficiency. This alternative draws on the rich literature of social psychology as well as moral and political philosophy to make a serious inquiry into the notion of "group." If we want to bind litigants through collective decision-making of a substantial majority, then we ought to think hard about what a group is and when its collective decisions should bind those in the litigation who disagree with the majority. This Article begins to undertake that task. It asks and answers the question of what it means when "we intend" to jointly undertake some shared task such that the collective "we" should be uniformly bound by the decisions made in that endeavor. Equally important, it undertakes the critical question of how to foster joint intent or at least shared valuing as well as exit mechanisms. In so doing, I contend that rigorously dissecting what we mean by "groups" within aggregate litigation provides some clues about ways to alleviate nonclass aggregation's age old dilemmas such as attorney-client conflicts, client-client conflicts, allocation problems, the lack of voice opportunities, and even the so-called "holdout problem." ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Which branch of government should decide that an emergency exists? Should courts defer to a declaration of an emergency made by the President? The essay identifies two opposing legal positions dealing with emergencies: "decisionist" and "legalist." These positions have engaged in emergency powers debates since shortly after 9-11 to the very recent Court decision in Boumediene v. Bush. In general, the decisionist approaches have argued that due to the extraordinary nature of emergencies, in emergencies the executive should receive increased deference. In contrast, the "legalist" approaches have argued that the rule of law should govern the emergency, and that there should be no lawlessness in the emergency, and no space without law. This essay traces a renaissance in the ideas of Weimar German legal theorist Carl Schmitt in American legal academia that I call "the decisionist approach." The main agenda of this approach has been that emergencies call for active decision-making by the executive branch to which courts and legislators should defer. My basic suggestion is that this argument for deference and its underlying postulation of the emergency as a question of fact originates-and is structured after- medieval theological debates regarding the absolute powers of God over the laws of nature. The essay argues that in democratic-liberal regimes that are not committed to such theological views, emergencies are better understood as legal questions to be decided upon jointly by the three branches of government. Keywords: Emergency Powers, Jurisprudence; Political Theology; Carl Schmitt; Decisionism; Guantanamo; Rule of Law; Habeas Corpus; war-on-terror ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

While there is a considerable body of scholarship devoted to examining the political ambitions of elected actors, there is scant research concerning the career goals of judicial actors. Moreover, while a growing body of law and society scholarship in the political ambition tradition has begun to address the elevation of judges within the federal judiciary, there lacks subsequent research on the ability of state judges to transition to the federal court system. To remedy this deficiency, I examine the elevation of state court of last resort judges to the federal courts from 1965-2001 to determine the key selection criteria for these judges' appointment to the federal bench. I argue that the methods in which state court judges are selected for service on the state bench is a key explanation for their subsequent appointment to the federal courts. Given this, this research has considerable implications for future work in judicial decision making, federal-state relations, and political ambition theory. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

While much of the Supreme Court's reasoning in its recent District of Columbia v. Heller decision involves the syntactical and semantic analysis of key words and clauses making up the Second Amendment, the crux of the majority opinion rests, fundamentally, on re-affirming what is often seen by many to be a distinctly American version of Enlightenment political theoryâ??that inherently sovereign individuals have a natural right to lethality in "self-defense." Of course, in the "real" world, the distinction between "self-defense" and, simply, "mutual combat," is more often than not, the outcome of a complex process involving many participantsâ??combatants, witnesses, and police officers first; then lawyers and judges later. While the effectsâ??social, cultural, legalâ??of this decision will be the subject of intense public debate for years to come, this paper examines this issue of individual self-defense, although it does so from "outside" of law. Instead, I focus on the degree to which this often murky line between self-defense and mutual combat has become the raison d'etre of one of the most visibly growing entertainment industries todayâ??the "new" fighting industries, which include "reality-based" systems of self-defense as well as the increasingly popular "mixed martial arts." In effect, this paper examines the new fighting industry's efforts to transform the socio-legalâ??the presence or lack of consent in violent encountersâ??into actual technique. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

When a debtor is adjudicated bankrupt, the court judgment contains the appointment of one (or more) receiver(s). The receiver manages the insolvent estate, which means that he will collect as many assets as possible to fulfil the claims of the creditors. The receiver has to make sure that every creditor gets his part of the proceeds of the bankrupt estate. Furthermore the receiver decides if (a part of) the bankrupt company is suitable for continuation of business. Because this decision is very important for the outcome of the bankruptcy proceeding for the creditors, the receiver is thought to have a powerful position. This leads to two questions:Do individual receivers have a powerful position with regard to bankruptcy proceedings? Do administrative receivers form a profession with a powerful position on an economic level concerning the continuation of businesses?Based on the Dutch Insolvency Act receivers certainly have formal power over the way bankruptcy proceedings take place. Empirical research among receivers, creditors, debtors and supervising judges however shows that this does not necessarily lead to actual power. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper will elaborate on an early finding which is suggestive of a key difference between capital cases that resulted in death versus life without parole verdicts in Texas. Data gathered from over 25 in-depth interviews with capital jurors suggest that defense mitigation of traumatic life experiences without accompanying positive mitigation serves to aggravate perceptions of the defendant to jurors. The interviews revealed that mitigation presented by the defense at the punishment phase which focused only on the traumatic life experiences of the capital defendant was interpreted as more aggravating than mitigating to jurors. These jurors discussed how such evidence created a sense that the defendant was unsalvageable. Mitigation of extreme poverty, abuse and deprivation distanced the jurors from the defendant, making their ability to empathize with him much less likely. On the other hand, mitigation of traumatic life experiences coupled with positive mitigation such as the defendant's life having value, the defendant being a hard worker, the defendant being religious and so on brings into focus aspects of the defendant's character which jurors are able to relate to. A balance of mitigation is therefore necessary in order to accurately reflect the complex background of the capital defendant and ensure jurors are able to identify in some way with the defendant. Without this ability to identify with aspects of the defendant's life, mitigation of traumatic life experiences creates an unbridgeable chasm between the defendant and capital jurors. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper arises from research carried out into two aspects of the immigration and asylum decision making process in Scotland. The first aspect studied how the higher courts review the immigration and asylum decision making process. The second aspect studied participants' experiences of the process. This paper will draw on that research to explore firstly the lived experience of migrants who encounter the immigration and asylum decision making process and secondly the issues surrounding review for "error of law" in a jurisdiction where the assessment of a factual matter - credibility- is central. How does the individual migrant connect with that process? ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper analyzes several recent socioeconomic rights cases decided by the South African Constitutional Court and compares and contrasts the approach the Court has developed in these cases with two seminal early decisions, Treatment Action Campaign and Grootboom. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper analyzes a systematically selected set of cases decided by the Argentine and Brazilian high courts - exploring both high court decision-making and the compliance and response of elected leaders - to depict contrasting patterns of inter-branch interaction over economic policy in the first 20 years after regime change in Argentina and Brazil. In Argentina, inter-branch relations were often marked by "high-court submission" though moments of heated inter-branch conflict also occurred. In Brazil, by contrast, the high court and elected leaders engaged in mutual accommodation. The paper advances and illustrates the "Court character thesis" to explain these contrasting patterns, showing how different features of the partisan Court in Argentina contributed to the volatile inter-branch interactions in the economic realm, while in Brazil, the particular mix of professional backgrounds and other characteristics of the statesman Court facilitated compromise and negotiation. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper analyzes the DC Circuit's recent decision upholding the constitutionality of the Public Company Accounting Oversight Board (PCAOB) against challenges under the appointments clause and the doctrine of separation of powers. It then argues that even if the DC Circuit's constitutional ruling is correct, the litigation begs a fundamental question: whether Congress should be creating public/private entities like the PCAOB that are public for purposes of constitutional law and private for all other purposes. It concludes that Congress should not create such entities, because public/private regulators like the PCAOB are less accountable to the public, their actions are less transparent, and their policymaking is less legitimate than their purely public counterparts. As a new Administration and Congress struggles with the current financial crisis and contemplates the creation of new financial regulators, the normative issues surrounding entities like the PCAOB are more important than ever before. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper (soon to be a book chapter in Ramji-Nogales, et. al, Refugee Roulette (NYU Press) reviews the empirical findings of a major study of US immigration asylum judging which found women judges were 44% more likely, than male judges, to grant asylum. The paper analyzes these findings and discusses them in relation to the author's prior work on gender and legal behavior (of lawyers and judges) and the extant literature on gender and judging. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The research is to compare the performance of South Korean judges and lay juries on legal decision-making by examining whether legal decisions made by a professional judge and a group of lay jurors differ significantly. Furthermore, the study also examines how the differences in the evidence presentation method, in an adversarial and an inquisitorial trial, influence the legal decisions produced by a professional judge and a group of jurors. Professional judges and mock jurors either watched a videotaped criminal trial or read a collection of evidence documents, dossiers and made legal decisions. The results indicated some differences in verdict patterns between judges and juries and there was a greater difference in final verdict patterns between judges and juries when the key evidence was introduced in dossiers. Implications to the current lay participation system in Korea are discussed. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The research compares legal decisions between American and South Korean mock jurors in an adversarial and an inquisitorial trial. American and South Korean mock jurors examined how factors that increase wrongful conviction rates, such as coerced confession evidence, influence the legal decisions in adversarial and inquisitorial trials. Both American and Korean jurors either watched a videotaped criminal trial or read a collection of evidence documents, dossiers and made legal decisions. The results indicated that there was no significant difference in the final verdict distribution for American and Korean mock jurors and juries, but some differences were observed regarding specific evidence evaluations. The present study provides valuable information about the quality of legal decision making under an adversarial and an inquisitorial trial by evaluating the performance of American and Korean mock jurors thereby determining whether they commit the same types of biases and errors when assessing coerced confession evidence. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The paper argues that, on retributive grounds, punishment cannot be shown to be justified. It also argues that retributive grounds exclude the possibility of any other possible justification of punishment ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The government has implemented policy to increase breastfeeding rates and has utilized the media. Media can report on "negative" aspects (i.e., women arrested for public breastfeeding), or "positive" aspects of breastfeeding (i.e., health benefits). Media portrayals of breastfeeding as deviant or socially harmful can inadvertantly influence legal rulings (by influencing those serving on juries or acting as prosecutors) and public policy (by voting for public officials). A content analysis of newspaper articles was conducted to examine how media portrayals of breastfeeding have changed over the last 20 years. The degree of positivity of breastfeeding messages (as measured by the overall positivity score) was significant overall F (4, 250) = 4.538, p =.001, with year 2007 being significantly more positive than 1987 (p<.01) and 1992 (p<.01). The mean overall positivity score by sample year increased over sample years, so that each successive year portrayed breastfeeding more positively overall than the previous year. Portrayals of breastfeeding have varied over time with an overall increase in expression of attitudes toward breastfeeding, mentions of public breastfeeding, and meeting announcements. Other content areas peaked in various years due to high profile legal cases: e.g., sexual aspects of breastfeeding peaked in 1992, social harm and deviance peaked in 1992 and 2002, and bonding peaked in 1987 and 2002. Potential effects of media content on law and policy are discussed. Media messages can influence mothers (e.g., choices about infant nourishment), cultural norms (e.g., acceptability of public breastfeeding), and the legal system (e.g., breastfeeding policies, and potential jurors). ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The consistent increase in the amount of amicus curiae briefs submitted by interest groups is a result of an unwillingness by the Supreme Court to limit their presence. Each successive term has led to greater involvement by third parties in cases before the Court. As interest groups have become increasingly involved in judicial decision making, so has scholarly attention to the judicial strategies of organized groups. Because resources are finite, interest groups must selectively choose which cases will allow for the greatest policy impact. Using data from 1953-2001, we examine what case specific factors lead to a change in the number of briefs filed. Among other things, our findings demonstrate that the quantity of amicus curiae briefs filed is influenced by the perception that a case is relevant, or highly salient to the interest group and the public. We demonstrate that interest groups are responsive to cues from the Supreme Court indicating a need for more information. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The Americans with Disabilities Act (ADA) is designed to protect persons with disabilities from discrimination. Until recently, the vagueness of the Act's definition of disability left much to courts' interpretations. Consequently, very few courts recognized mental impairments as qualifying disabilities. In addition, following Sutton v United Airlines (1998) courts examined impairments in their corrected state, resulting in a number of case dismissals for those whose impairments were largely mitigated by medication or therapeutic efforts. The 2008 amendments to the Act resolve some of these issues by providing a more detailed definition of disability, which also dictates that mitigating measures are not to be considered.This study was concerned with public perceptions of disability, and how these perceptions differ from the pre-amendment ADA. Participants read a failure-to-hire case in which we varied the type and severity of the complainant's impairment, and also the presence or absence of mitigating measures. Results demonstrated that participants were more certain of the complainant's status as disabled when the impairment was mental as opposed to physical. Presence or absence of mitigating measures had no influence on participants' judgments of disability. These results suggest that public perceptions of disability do not agree with post-Sutton jurisprudence. However, the recent amendments to the ADA may help to address this disparity between public definitions of disability and that provided in the Act itself. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The American courts have become the frequent arbiters of determining how the state should define family and parenthood. Child custody cases, in particular, reveal the contested nature of parenthood, as courts are forced to draw the boundary lines of who constitutes a legal parent. While scholars have argued that the gender or the sexual orientation of the parent plays a role in the custody decision-making process, my research explores how courts define family in the context of variations in both the gender and sexual orientation of parents. The sample is comprised of the universe of all state-level child custody cases since 1996 involving lesbian, gay, and bisexual parents, which is then matched to comparable cases involving heterosexual parents. By comparing both heterosexual and homosexual parents, as well as both mothers and fathers, my research will help elucidate the gendered and heteronormative assumptions embedded through the judicial system. More than three quarters of U.S. families no longer fit the heteronormative family ideal of a legally married monogamous heterosexual couple and their biologically related children. Therefore this research reveals important findings about how gender and sexuality operate in the judicial decision-making process. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

The 'ability to pay' principle first appeared in the Brazilian legal order in the 1946 Constitution. It was excluded from the texts of 1967/69 and reappeared in paragraph 1 of article 145 of the 1988 constitution, which is now 20 years old. The objective of this paper is to analyze the application of this principle to decisions of the Brazilian Supreme Court. In research carried out on the court website, the term "ability to pay" appeared 70 times in court decisions. In order to analyze the decisions, I began with texts from Italian jurists, especially Pietro Boria, who sought to demonstrate that the ability to pay principle in Italy is applied both in the protection of taxpayer interests as well as the protection of the state. I concluded that, also in Brazil, the ability to pay principle has been applied in the protection of both these interests and the paper analyzed the central characteristics of this application. Decisions were divided into five groups, according to the interest protected and the subject involved. The final part of the paper points out limits to the use of the principle from a philosophical perspective. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Tha paper analyses the decisions of the Hungarian Constitutional Court related to collective labour rights and explains their counter-effect on the Hungarian industrial relations and social dialogue. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Last decades many new regulatory agencies were created with sometimes far-reaching powers to regulate markets and industries (cf Levi-Faur & Jordana). Regulated industries (such as Telecommunication, Energy, Healthcare, Public Transport, Pesticide, Veterinary Medicine, Food and Tobacco industries) are constrained by decisions from regulatory agencies or administrative bodies. This paper investigates corporate litigation against decisions of regulatory agencies in the Netherlands. The Court of Appeal on Trade and Industry (CBb) is a special administrative court which rules on disputes in the area of social-economic administrative law. Based on interviews with large corporations and other parties concerned (judges, attorneys, regulators) the paper analyses experiences and opinions of large corporations with the Court of Appeal on Trade and Industry. Do corporations have alternatives for going to court? What are the considerations for (not) going to court? What do they expect from the court? What criteria are important for a fair trial? How do corporations evaluate court proceedings and decisions of the court? ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Judicial activism is a label often used with a variety of meanings. Some have concluded that the concept simply refers to any judicial decision with which a person disagrees. Scholars have sought to to provide a more precise meaning of the term in a variety of ways. However, perhaps the greatest stumbling block to effectively defining judicial activism is that academics have blurred together the process of definition with that of measurement. Because scholars have sought to measure activism through legislative review and deference to executive agencies, definitions of activism have mirrored those measures. However, activism, at its core, is broader than activities affecting inter-branch relations. A judicial action is activist if it substitutes the judgment of other constitutional actors. This definition of activism yields an area of measurement that has been wholly unexplored: review of district court opinions by federal appellate courts. By measuring the degree to which federal appellate court judges substitute their judgment for that of district court judges, a reliable measure of judicial activism is created. This type of measure has substantial advantages over other techniques including substantially larger sample sizes and potentially more objective coding. This study uses a newly-created dataset to assess activism of federal appellate court judges by measuring adherence to standards of review. Standards of review of district court decisions provide an ideological-neutral baseline tool for determining what a formalist model of law would predict. According to a formalist model of law, we would expect judges to reverse district court judgments at a lower rate when a deferential standard of review is utilized. Thus, when a judge does not show greater deference to a district court decision when applying a deferential standard of review, that judge is behaving in an activist manner (in contrast to the formalist model). Consequently, judges are less activist when they exhibit a relatively higher reversal rate using a non-deferential standard than they do when applying a deferential standard. This study assesses the activism of federal appellate court judges based upon a variety of characteristics including: ideology, circuit, age, length of service, and prior judicial experience. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Judicial activism is a concept which is often debated and in recent years become a tool of political maneuvering. Most studies of judicial activism focus on activist decisions of the United States Supreme Court. However, given their limited case load, activist decisions would seem of much greater importance at the lower court level. Many studies identify occurrences of activism on state supreme courts, though few study the concept beyond just a handful of courts. This study seeks to offer a more refined definition of activism. In doing so, it seeks to examine activist decisions on state supreme courts on cases regarding the equal protection clause from 1983-present. What does activism look like in regards to equal protection cases? Is activism on equal protection cases influenced by differences in selection method and other institutional features? What are the consequences of activism? How does this frame the current debate on issues, such as gay marriage? ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In Glover v. United States, the U.S. Supreme Court suggested that judicial review of claims of ineffective assistance of counsel at sentencing may be different in non-capital discretionary sentencing regimes than in mandatory non-capital sentencing regimes. Ineffective assistance claims are ordinarily decided under the two-prong Strickland test: whether counsel rendered deficient performance and whether that performance was prejudicial. Relying on Glover, several lower courts have held that the Strickland prejudice analysis does not apply in non-capital discretionary sentencing regimes. This paper argues that the lower courts are incorrect that the prejudice analysis should be affected by whether a non-capital defendant was sentenced in a discretionary rather than a mandatory regime. Instead, the paper argues, the performance inquiry for discretionary systems should differ from mandatory systems. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In Gregg v. Georgia, Supreme Court justices Powell, Blackmun, and Stevens all agreed that the procedures adopted by Georgia in response to Furman v. Georgia satisfied the requirements of the Eighth Amendment. Over the years that followed, each of these justices, all of whom were appointed by Republican presidents, repudiated their prior views, reaching the same conclusion that the procedures adopted (in Georgia and other states) were unsatisfactory, created arbitrary outcomes, and were ultimately unconstitutional. In 1991, Justice Powell stated that he had "come to think that capital punishment should be abolished." In 1994, Justice Blackmun pronounced that he would "no longer tinker with the machinery of death." And in 2008, Justice Stevens concluded that the "the imposition of the death penalty represents 'the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.'" Tracing the decisions of each of three justices in a series of landmark cases, this article will attempt to pinpoint the factors, whether similar or not, that lead each to the same conclusion -- that there is no fair, non-arbitrary way to administer the death penalty. Considering these factors, the article will then explore the degree to which the procedural problems that result in such a conclusion mandate abolition of the death penalty, or in the alternative, suggest how the capital punishment system should be reformed. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In Bolivia it has been suggested that the enactment of the Arbitration and Conciliation Law of 1997 has reduced congestion on trial calendars, speeded case disposition, and reduced costs and time for litigants. However, there has not been any study or research that may confirm or deny these general assumptions. Therefore, considering that ten years of its application is long enough to yield results about its effectiveness in meeting the legislators' objectives, I studied the application of Bolivian Arbitration Law over the last ten years and evaluated if its enactment indeed satisfied its purpose as an independent, less expensive, and less time consuming method of dispute resolution.The methodology applied in the research is primarily qualitative analysis. I conducted 18 interviews in Bolivia with scholars, arbitrators, parties, lawyers, Directors of Arbitration Centers and draftsmen of the arbitration law, all of them with practical experience in the field. Considering that during the interviews most respondents expressed concerns about the effects of arbitration - primarily the tendency of losing parties to challenge arbitral awards through the recourse to annulment or through constitutional claims, I studied the 88 rulings issued by the Constitutional Court, which all deal with arbitration issues. The analysis of these rulings shed light on how lower courts have been resolving annulment recourses and in some instances enforcement proceedings and to what extent did the parties file constitutional claims alleging violations to their constitutional rights during or after an arbitral proceeding. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In District of Columbia v. Heller, the Supreme Court ruled that Washington, D.C.'s ban on handguns violated the Second Amendment's guarantee of the right to keep and bear arms.In an amicus brief in support of D.C.'s position, my co-authors and I use historical linguistic evidence to argue that the Second Amendment was intended to be read in its entirety; that its first clause is tied syntactically to its second - the need for a well-regulated militia is the reason for guaranteeing the right to keep and bear arms; that the phrase bear arms in the 18th century occurs predominantly in military contexts, not incontexts involving hunting or self defense; and that the word militia refers to an organized and trained body of citizen-soldiers, or to those eligible to serve in such a body, not to any and all individual citizens, most of whom were actually barred from militia service. Although these arguments reflect the framers' view of the Second Amendment, meaning is determined by users of language, not by grammars and dictionaries, even when those reference works purport to record how users deploy their words. As a result, the Court, whose conservative majority in other instances seeks to read the Constitution as the framers did, decided the Heller case by means of a thoroughly "modern" reading that discounts the historical record, a reading which guarantees, not an armed and trained militia, but an individual's right to own a gun for hunting and as a defense against urban crime. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In 2007 the Supreme Court decided two major cases involving standards for assessing the adequacy of complaints in federal civil actions, and it will decide a third this Term. Although seemingly concerned with technical requirements, these cases in fact implicate important issues of public policy, including access to court, compensation for injury, and norm enforcement. They afford a useful landscape in which to explore some of the dilemmas of modern American procedure. To that end, I enumerate certain foundational assumptions and operating principles of the post-1938 federal procedural system. I then show how these three cases illustrate the limits of, and costs created by, those foundational assumptions and operating principles and, more generally, the costs of the complex procedural system that we have created for the federal courts (and that many states have used as the model for their own systems). ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

In 1995 the UK enacted the Disability Discrimination Act which, amongst other objectives, sought to tackle discrimination by landlords against disabled tenants or disabled applicants for a tenancy. This paper will examine the way in which this legislation has been restrictively interpreted by the courts, particularly focussing on the recent House of Lords' decision in Malcolm v Lewisham BC (2008). The examination of the issues will focus on the special challenges for the law of combating discrimination against the disabled, including those presented by the differences between mental and physical disability. The paper will present the issues from a property lawyer's perspective noting the potential problems of conflict between discrimination legislation and the more general obligations of landlords to their tenants. Appropriate comparisons will be made with the position taken against disability discrimination in the housing field in other jurisdictions, to attempt to elucidate the optimal way forward. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

How strong is the analogy between judging and doctoring? I examine how close these two practices are by exploring the internal and external goods associated with each practice. In a recent book, Jerome Groopman argues that changes in society, technology, and medical education are changing what it means to be a doctor. He concludes by affirming the importance of the doctor-patient relationship. Groopman's analysis is, to some extent, consistent with a virtue-centered approach to medical practice. After identifying common themes in Groopman's book and virtue ethics, I conduct a similar inquiry on the practice of judging. As a reference point, I refer to Judge Richard Posner's book on how judges think. Posner's elaborate analysis is framed in terms of a judicial utility function that hinges on internal and external constraints on judicial behavior. He argues that the incentives of certain external constraintsâ??money, promotion, and prestige, for exampleâ??do not adequately account for judge's self-selection into the practice. He suggests there is something to be said for the internal constraint of a judge wanting to be a good judge. With this in view, I argue that Posner's position is prima facie compatible with a virtue-centered theory of judging. To elaborate on what such a theory would entail, I refer to recent work on virtue jurisprudence. Next, I examine whether Posner's judicial pragmatism is, indeed, compatible with a virtue-centered theory of judging. Finally, I attempt to show what a virtue-centered approach to the special case of the sentencing judge's practice might look like. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Historically, being "Japanese" meant a convergence of formal status (nationality), ancestry (inheriting the "blood" line of Japanese), and identity (such as having a Japanese name and speaking "proper" Japanese). But contemporary conditions of migration and human interaction has led to increased difficulties in maintaining this rigid structure. This paper will explore recent developments including a Supreme Court decision regarding the nationality of children born between Japanese and Filipino parents and issues arising from the migration of Japanese Brazilians to Japan and consider the possible directions that the definition of "Japanese" might take in the future. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Courts experience constitutional law largely as a series of discrete questions about particular constitutional provisions. Individuals, however, experience the consequences of constitutional decisions holistically. The disjunction between how courts address constitutional questions and how individuals experience them creates potential anomalies: a set of decisions that appear sensible, just, and well-reasoned individually may nevertheless produce consequences that violate basic constitutional norms.This paper addresses the question of how Courts are supposed to behave in such circumstances. Its premise is that fidelity to the Constitution requires strategies for correcting the course of constitutional interpretation. Its goal is to come up with principled approaches for identifying situations where this constitutional anomaly exists and for enforcing essential constitutional norms without undoing doctrinal structures that operate effectively in the bulk of constitutional cases.To analyze these issues, the paper identifies and surveys a series of Supreme Court cases that present these difficulties, cataloging and critiquing the different strategies the Court employs. In an effort to develop a coherent approach to the problem, the Article then deals in detail with the equal protection concerns raised by the racial and class disparities endemic in urban American public schools. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Courts are profoundly uncomfortable with displays of emotion at criminal trials, whether by jurors, lawyers, witnesses, or spectators. Prosecutors in one jurisdiction recently filed a motion to preclude a defense attorney from crying when presenting his closing argument in a capital case; people can be removed from the courtroom if they seem "overcome by emotion." But sometimes such displays are orchestrated, facilitated, or expectedâ??jurors, for example, expect defendants to "show remorse" and punish them if they don't, and prosecutors increasingly are using slickly-produced "victim impact videos" to elicit juror emotion. Courts don't know what to make of the fact that capital sentencing jurors sometimes cry when delivering verdicts. Law's treatment of such displays is a morass, reflective of an utter lack of theoretical foundation for thinking about emotion. This paper uses an emotion-theory lens to suggest a coherent theory for emotional displays. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Contracts are breached every day, oftentimes leaving bitter feelings between the parties. The law aims to rectify the wrong of the breach by offering a few remedies. One of those remedies, and the focus of attention of this paper, is the remedy of specific performance. Under many systems of law specific performance is the default remedy for breach.Much ink has been spilt in the theoretical analysis of this remedy. Some try to justify it in deontological terms while others push for and against it from the perspective of economic efficiency. However important those views are, they lack - and usually admit so - empirical data. Through the paradigm of law in action this research aims to take a fresh look into the ways contracts are preformed after litigation. The research is built on a two-tiered analysis: first, a comprehensive content analysis of court cases reveals the characteristics of judgments awarding specific performance. Second, a set of interviews with parties after litigation explores the obstacles and hurdles parties face in achieving performance of the court order. Some of the economic analyses suggest that the parties will bargain around the court order rather than perform it. The interviews provide data on the frequency of such bargains and when those fail, on the frequency and quality of the performance of the court orders. The latter question offers a look into the under-explored scenarios where failure to negotiate results in (coerced) cooperation. The research aims at evaluating the problematic nature of semi non-consensual co-operations. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Between 1924 and 1937, judicial decisions in the British Mandate of Palestine could not rest solely upon the testimony of a single witness; in both criminal and civil trials, all testimony required corroboration. As Palestine's Chief Justice Michael McDonnell noted, this provision was unique to Palestine and was unparalleled in other British dependencies. In my paper I consider why a colonial government, charged with maintaining law and order, would impose upon itself such a significant hurdle towards obtaining convictions. Archival research suggests a number of explanations which gravitate between the overt and covert rationales of the rule: at least initially, the rule was justified as a manifestation of British cultural sensitivity towards local custom, Ottoman law and Muslim law's two-witness requirement. However, confidential correspondences between Palestine's High Commissioner, Chief Justice and Attorney General, especially during the 1936 disturbances - when the corroboration requirement's abolishment was considered - suggest that the requirement stemmed from colonial prejudice toward Palestine's population. The correspondences addresses the low credibility of the population, that stemmed from their alleged low moral character, inability to distinguish fact from fiction and tendency to settle clan and tribal feuds by offering false incriminatory testimony. Through the prism of this rule, my paper suggests that procedural law in Palestine was by no means merely technical and was not simply a replication of the law of other British colonies, as existing literature often suggests. Rather, procedural rules were customized for the Palestine Mandate and often reflect colonial perceptions, prejudice and executive interests. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Administrative agencies, as experts on matters of public policy, are accorded great deference by Article III courts on matters of rule-making and adjudication. But in certain exceptional circumstances, courts refuse to defer. For instance, when agency adjudicators fail to implement their own procedures, Article III courts take a more activist role. This explains a number of recent decisions within national security, including Boumediene v. Bush, in which the Supreme Court extended constitutional habeas protections to detainees at Guantanamo Bay. Boumediene is puzzling because the Court rejected a remedy created by Congress and the Executive in response to (and arguably in compliance with) the Court's prior enemy-combatant decisions, notably Hamdi v. Rumsfeld and Hamdan v. Rumsfeld. But Boumediene can be explained as a judicial response to flawed implementation of standards and procedures by the Guantanamo tribunals, which failed to command Article III deference. Adjudicatory integrity explains Boumediene and a host of other cases in which agencies fail to properly implement their own procedures. In those cases, courts become more actively involved despite heightened standards of review and jurisdiction-limiting provisions imposed by Congress. While this idea has not been the subject of much doctrinal development, it has great intuitive appeal; after all, judicial administration is centrally and squarely a matter of the courts' expertise. Thus, as exemplified by Boumediene, in cases of flawed judging, Article III courts are often willing to go well beyond their limited judicial mandate to right an agency wrong, a point that holds true generally within administrative law. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Allegations of human rights violations exploded after 1998 in Europe, and substantial delays in the execution of European Court of Human Rights (ECHR) judgments have surfaced as a significant problem for the first time in the Council of Europe's (CE) renowned human rights regime. What explains the crisis facing the ECHR, and what implications does the crisis have for the future politics of transnational dispute resolution in Europe? Official accounts of institutional overload and rising noncompliance highlight the interaction of reforms expanding direct individual access and the doubling of CE membership that followed the end of the Cold War. Yet a dramatic increase in delayed execution of judgments preceded the enlargement of membership and affected long-standing member states that had accepted direct individual access far earlier than 1998. In this paper I argue that recent ECHR challenges expose the growing demands of transnational "public law litigation" and the extent to which compliance with ECHR judgments has historically been limited. I demonstrate that compliance gaps exist in both old and new member states, and explain variations in these gaps in terms of the domestic institutionalization of the rule of law and the mobilization of civil society in legal arenas. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

A moral panic about homegrown terrorism has intersected with a reversal in judicial decisions about inmates' rights inside prison walls. US Supreme Court decisions of the Warren and Burger eras once granted a modicum of prisoners' civil rights (in particular religious liberty). A reversal began in the 1990s, granting greater discretion to prison administrators. This paper investigates the surveillance and regulation of Islam/Muslim inmates under these conditions: strengthened discretionary powers in the hands of prison administration (executive power); public perceptions of the risk of homegrown Islamic terrorism; and neoliberal trends in lawmaking rationalities identifying which enemies the government must confront in order to protect citizens. Focuses on shifts from judicial to executive governance and compares current racialized fears of the Muslim terrorist with historical racialized fears of Black Nationalism evident in executive responses to rights claims inmates raised in the 1960s and 1970s. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

A new and dangerous tool is being used with increased frequency by defendants attempting to avoid liability in cases involving numerous plaintiffs: Federal Rule of Civil Procedure 68 ("Rule 68") offers of judgment. By making early offers of judgment against named plaintiffs in collective actions, employers seek to "pick" them off and thereby avoid paying all of the workers to whom they have discriminated against, failed to pay correct wages, or otherwise treat unlawfully. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

While the "Rule of Law" is a hallmark of liberal democracy, many are skeptical about whether judicial decisions actually uphold this ideal. The debate over judicial decision making could shed light on this issue but has so far failed to do so. Attitudinalists conclude that political preferences are the strongest determinants of judicial decisions, but they do not engage the larger social significance of this fact. New Institutionalists and post-positivists have engaged these larger questions by arguing that judges follow rules and norms, but they have not clarified the specific judicial attitudes required by the rule of law. To help fill these gaps, I distinguish between two "good" types of judicial attitudes which uphold the rule of law (Formalist and Good Faith attitudes) and two "bad" types which undermine it (Cynical and Rogue attitudes). Rather than focusing attention on the "good" attitudes, I argue, it might be more fruitful for New Institutionalist scholars to focus - like the Attitudinalists - on the "bad" ones: those attitudes that disrespect, ignore, or outright flout legal rules and norms. Toward this end, I present data drawn from my interviews with 24 federal and state appellate judges, highlighting Cynical and Rogue attitudes. While these attitudes are a minority among the judges I interviewed, I argue that they can help us see clearly which opposite attitudes might be necessary to uphold the rule of law. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

What are judges' considerations when deciding a dispute? What if any is the significance of their ideological attitudes? How much consideration do they give to the social climate or to institutional interests? Does the law matter?Researchers in the US have tried to answer these questions for over a century. In my study, I will examine the answers provided by the Attitudinal Model Researchers versus those of the New Institutionalism Scholars. the Attitudinal Model sees judges as political players who decide disputes based on ideological positions vis-à-vis the facts of the case; the New Institutionalism Approach argues that court decisions are influenced not only by policy preferences of particular judges, but also by the nature of the court as an institution, and how it in turn affects and shapes judges' policy preferences.My research foxes on the Israeli Supreme Court decisions regarding freedom of religion. My examination will be carried out by analyzing quantitative content of High Court decisions in this sphere. I will compare the results to counterpart studies conducted in the US, and will then learn from a comparison the significance if any of institutional variables, the main of which is how judges are appointed.My study has three main objectives: One is adding another layer to the theoretical debate between the Attitudinal Model and the New Institutional approach to Supreme Court decision-making. The second objective is creating a preliminary study of judges' considerations in Israel's courts. Does the Attitudinal Model explain judges' decisions in Israel as well? To what extent does Israeli law influence legal decisions? These questions have not yet been explored in Israel. The third and more significant objective is creating a platform for comparative-institutional discourse on fundamental questions of jurisprudential politics in Israel versus the US. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

To a large majority of European lawyers, judges and technocrats, cities are not fundamental players within the current constitutional arrangement of the European Union (EU). By analyzing the three different stylized types of cities in EU law, I bring to the forefront how judgments of the European Court of Justice both channel images of local democracy and impose different distributive consequences upon local governments. First, my analysis sheds light on the importance of cities as instrumental players in the supranational project of a European integration; in this respect my aim is to contribute to the flourishing literature on international local government and the way cities are empowered or disempowered by supranational or international legal regimes. Second, I demonstrate that EU legal doctrines, from free movement to competition law and regional policy, have substantial distributive implications for cities, the way they construct their socio-economic spaces and their citizens. Finally, I propose that judges, lawyers and technocrats ought to view local democracy in Europe through multiple lenses to go beyond narrower visions of "Union versus Community". Thus, while on the one hand lawyers should assess how legal regimes structure and create costs and benefits for city residents, on the other they should aim to protect the inclusiveness and democratic potential of city life while taking into account the different spaces and needs of each city in each geographical context. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This study addresses two major questions. One is whether there is a difference between the decisions of men and women in family law cases, and how this is related to the presence of a "women's voice" in family law decisions. This question has been addressed by various scholars, with contradictory results reported in the literature. This paper presents the results from a five year empirical study of over 1200 decisions in family law, and examines the differences in decision-making on various topics and by the gender of the party initiating the petition. The other question is: is there a difference between the decisions that are published in various databases, and those actually handled by the courts. This is a topic that has been addressed with reference to appellate decisions, but not as yet in family law cases. We examine whether the decisions of women judges appear as frequently as those decided by men in the databases, and whether the databases reflect the actual gender composition of judges in the family courts. We discuss the consequences of the results of both these issues on the development of jurisprudence in family law in Israel. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper analyzes pros and cons of the newly introduced Japanese criminal trial system to include lay assessors. Focusing upon the competence and bias issues of the Japanese toward legal decision making, the paper will discuss the nature of the Saiban in system from the cultural, historical and theprethical point of view. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]