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During the last year and a half, the Supreme Court has issued three important election law decisions in each of election law's main fiefdoms: race and redistricting, campaign finance, and the regulation of political parties. What has been missing from the commentary thus far has been an effort to connect the dots. This essay claims that these three, seemingly disparate decisions can be understood as part of a story that began more than four decades ago, when the Court first entered the political thicket. The Court has long tried to use a conventional individual rights framework - the bread-and-butter of legal analysis - to adjudicate what are often claims about the structure of the political process. An individual-rights framework, however, does not provide adequate analytic tools for resolving such challenges, as the Court's most recent opinions reveal. As a result, the Court as a whole seems to be in a doctrinal holding pattern, unsure of where to go next. This essay thus argues that we are witnessing a doctrinal interregnum in election law. It charts the course the Court has taken thus far, exploring the connections between the Court's three most recent election law decisions and its prior jurisprudence. It argues that, despite their many differences, each case reveals the dilemma the Court now faces in resolving what are fundamentally structural claims with an individual-rights framework. Part II speculates on the next steps the Court will take. In doing so, it attempts to sharpen the terminology deployed in the "rights-structure" debate thus far and suggests a novel reading of Georgia v. Ashcroft, the Supreme Court's most recent race and redistricting case, as a bridge between the Court's prior strategy for adjudicating vote-dilution claims - policing substantive outcomes - and a more process-oriented approach that deploys a variant of the minority veto. The essay closes by reflecting on how courts might use their regulatory powers to create incentives for other institutional actors to work to improve the structural health of our democracy.

Marshall Klavan headed the Obstetrics and Gynecology Department of the Crozer-Chester Medical Center. (1) He deeply feared strokes, perhaps because his father had been savaged by one. In 1993, Dr. Klavan wrote an advance directive which said that (as a court later put it) "he 'absolutely did not want any extraordinary care measures utilized by health care providers.'" On April 29, 1997, Dr. Klavan tried to kill himself. He left suicide notes and a note refusing resuscitation. The next morning, medical center employees found him unconscious and took him to the emergency room, where he was resuscitated. By May 2, Dr. Klavan had fallen into a persistent vegetative state. His family and his lawyer told the center about his notes and his advance directive. On May 4, the center "agreed to provide care in accordance with" the advance directive, but on May 5 Dr. Klavan's condition worsened and the center again resuscitated him. He "then suffered a stroke that rendered him mentally and physically incompetent." A suit was brought on Dr. Klavan's behalf in federal court. It claimed that his fourteenth amendment right to refuse medical treatment was being denied. The fourteenth amendment, however, restricts only governments, not private institutions. Had the government so deeply implicated itself in the center's activities that it had effectively become a governmental institution? The court thought not, leaving Dr. Klavan's representative only with state-law claims. The federal court had discretion to take jurisdiction of those claims, but it refused: "While Dr. Klavan's situation cries out for prompt and definitive judicial resolution, we nevertheless decline to exercise our discretion ... precisely because of the gravity of his case." How did this sad case reach this unsettling result? First, the story I have told may be false. (2) Klavan was decided before a trial could determine what had actually happened. To decide whether it had jurisdiction, the court accepted as true everything Dr. Klavan's representative had alleged. The court concluded that even if all the allegations were true, it should not grant the relief Dr. Klavan's representative sought. Therefore we have no idea what the medical center's defense was or how any factual disputes would have been resolved in a trial. (And even had there been a trial, we could not be sure of its conclusions.) More broadly, however, the Klavan court's reluctance to address the dispute was typical of the judicial reaction to the (uncommon) attempts to enforce living wills. Such attempts are of two kinds. First, people locked in a dispute about treating an incompetent patient can ask a court to settle the disagreement. In doing so, the court can look at the living will and any other relevant evidence. Second, after a patient dies, the family might sue to recover the damages the patient suffered became the living will was disobeyed. Why have courts not embraced either kind of litigation? In part, courts' hesitation to enforce living wills reflects a judicial aversion to disputes about treating the dying. Such disputes demand a speed courts can rarely attain. The patient has often died by the time lawyers have been consulted, non-legal solutions have been exhausted, a decision to litigate has been reached, and legal documents and evidence have been prepared. Just as bad is the "standards" problem: These decisions raise issues the law addresses too obscurely to guide courts. And given the complexity and perplexity of end-of-life decisions, more illuminating rules probably are impossible. So courts have acquiesced--tacitly and sometimes expressly--in relegating these decisions to an informal process in which doctors and families work toward a consensus that the time has come to let the patient die. Courts may be right to do so: Evidence is spotty, but it hints that patients' families are generally satisfied with this process and that their dissatisfactions would not be soothed by litigation. …

Liberals celebrated the Supreme Court's 2003 term for its support of affirmative action and its condemnation of criminal penalties for same sex intercourse. At first glance, the Court's opinion in Sell v. United States, appears equally liberal. The Court held that the government may forcibly administer anti-psychotic drugs to a mentally ill defendant only under strict conditions. Yet discerning liberals will notice not simply the Court's reiteration of a constitutionally protected interest in avoiding compulsory treatment, but the palpable limits of bodily integrity. Forcible Medication Charles Sell, a dentist, was indicted for Medicaid fraud and other offenses. He had a long history of mental illness, was found incompetent to stand trial, and was confined in a federal prison system medical center for more than four years while he refused medication. The lower courts determined that he was not a danger to himself or others, and the Supreme Court was obliged to accept that conclusion. His long incarceration and the nonviolent nature of the charges made Sell "a symbol of clinging to personal autonomy in the face of overweening government power." (1) The case also divided the mental health profession, with the American Psychiatric Association supporting compulsory medication and the American Psychological Association opposing it. The question presented was whether the Constitution permits the government to forcibly administer antipsychotic drugs solely to render a mentally ill defendant competent to stand trial for serious but nonviolent crimes. The Supreme Court's starting premise was that individuals have a basic, constitutionally protected "liberty interest" in avoiding unwanted medical treatment. (2) That interest, however, may be trumped by the state's countervailing interest in bringing a defendant to trial. The Court made clear that involuntary medication for competency purposes is permissible but closely limited: the treatment must be medically appropriate, unlikely to have side effects that undermine the fairness of the trial, and (taking account of less intrusive alternatives), necessary to significantly further important governmental trial-related interests. (3) Justice Breyer, writing for the Court, cautioned that cases in which drugs may be forcibly administered solely for trial competence purposes "may be rare" because a court must first make several important findings. First, the government must have an important interest at stake. Although the state's interest in bringing to trial a person accused of a serious crime is significant, courts must weigh "special circumstances." A finding of incompetence to stand trial may result in a lengthy confinement in a mental institution. Ironically, Sell's decision to refuse medication resulted in a pretrial confinement that exceeded the sentence he would have received if convicted. This diminishes the state's interest in prosecution because a defendant ordinarily receives credit toward a sentence for time served, and pretrial confinement reduces the likelihood of the defendant committing future crimes. Second, involuntary medication must "significantly further" the state's interests, including its interest in assuring that the defendant receives a fair trial. The medication must not interfere significantly with the defendant's ability to assist in his own defense. While antipsychotic medication can relieve psychotic symptoms such as hallucinations and delusions, it can also interfere with the defendant's ability to exercise trial rights. A heavily medicated defendant may be unable to communicate meaningfully with counsel or decide whether to testify. Additionally, a defendant's "affect, demeanor, and responsiveness" may be so compromised as to affect his or her credibility and presumption of innocence at trial. (4) Third, the trial court must find that alternative, less intrusive treatments (such as psychotherapy) are unlikely to achieve substantially the same results. …

The Supreme Court (Reichskammergericht) of the Holy Roman Empire, which existed from 1495 to 1806, was--besides the Aulic Court (Reichshofrat) in Vienna--the highest judicial instance in the so-called Old Empire. For a long time it has been lamented that the Supreme Court's acts, preserved at Wetzlar, the court's final seat, had been distributed among several archives of the German states in the nineteenth century. An inventory project funded by the Deutsche Forschungsgemeinschaft, in which many state archives and local archives of the Federal Republic of Germany had taken part, has now produced a new base for historical research. Within this project several detailed printed repertories were published. Thanks to modern communications media, it would even be possible in the near future to produce a virtual Supreme Court archive. This article offers an overview of new writings on the Supreme Court since the 1970s and describes the trend of current research. Furthermore, it describes the structure of the inventories of the acts of the Supreme Court and, finally, the genres of sources the acts contain.

AS A RESULT OF THE LOUISIANA PURCHASE, millions of acres of land west of the Mississippi were annexed to the United States. In the territory of Louisiana, stretching from what is today the southern border of Arkansas up to Canada, the common law legal system of the United States replaced the civil law system of France and Spain, which had previously been in force at the scattered "posts" and settlements. A framework of courts, judges, attorneys, and juries was thus imposed on a "wild" frontier. White Americans, French traders, Native Americans, and slaves petitioning for freedom are all to be found in dockets of these frontier courts, which some have characterized as "discouragingly primitive" and "crude."1 The record books and files of the courts of Arkansas Post from 1808 to 1814 show how this new judicial system was imposed on that community and the surrounding territory.2 Studying the workings of those early courts, their officers and litigants, and several of the earliest cases not only sheds light on the practice of law on the southwest frontier but also opens a window on life in Arkansas during the first two decades of the nineteenth century, a period about which we know little.3 Within a year after the purchase, Congress had effectively annexed the vast bulk of the newly acquired land to the territory of Indiana as the district of Louisiana. As such, its laws were enacted by the territorial legislature, composed of Gov. William Henry Harrison and the Indiana territorial judges (in the first stage of territorial government the governor and judges served as the legislature). A year later, Congress made the district of Louisiana a territory in its own right. Arkansas made up the southernmost portion of the territory of Louisiana, just north of the territory of Orleans. In 1812, when the territory of Orleans achieved statehood and took the name of Louisiana, the old territory of Louisiana was renamed the territory of Missouri for clarity's sake. Arkansas remained the southernmost part of the territory of Missouri until it achieved territorial status in its own right, as the territory of Arkansas on July 4, 1819.4 The Louisiana Territory was subdivided into five "districts" in 1804.5 Over the next decade, Arkansas was sometimes part of a larger district or county and at other times a district or county in its own right with its own county government-a confusing state of affairs that was not conducive to the administration of justice. The Arkansas legal system would be distinguished from other frontier jurisdictions by the frequency with which territorial governors shut down courts at Arkansas Post, the furthest ones from the seat of government in St. Louis. In 1804, Arkansas was part of the huge district of New Madrid. The court of record for the district sat at the town of New Madrid, over two hundred miles from Arkansas Post. The first district of Arkansas was created in 1806 by Gov. James Wilkinson and abolished in 1807 by Acting Gov. Frederick Bates. Gov. Meriwether Lewis reestablished the district of Arkansas in August 1808.6 The Courts of Common Pleas and General Quarter Sessions of the Peace for the Arkansas District, the first functioning courts of record, convened at Arkansas Post, the district's seat of government, intermittently from December 1808 to March 1814.7 The district of Arkansas was abolished a second time and was annexed back into the new county of New Madrid in 1812 by Gov. Benjamin Howard because of the difficulty of keeping the offices at the distant post filled and staffed.8 But in 1814 Arkansas finally regained a permanent separate status as the county of Arkansas. Once more, it was the seat of a court of record, now called the General Court. In 1819, the Territorial Superior Court, the highest court of the new territory of Arkansas, was established and met at Arkansas Post until the seat of government moved to Little Rock in 1821. Although the record books of these territorial courts have been available to researchers at the Arkansas History Commission, for many years historians believed that the case files had been lost. …

What explains how and why the Supreme Court interprets precedent? We contend that Justices incorporate precedents into their opinions to maximize the extent to which the Court's legal policy reflects their own policy preferences and to increase the likelihood that their opinions will be efficacious. Thus, we expect the interpretation of precedent to be influenced by the Justices' policy preferences, the norm of stare decisis, and certain characteristics of precedents. To test this idea, we examined how, in all cases decided in the 1991 and 1995 terms, the Court's majority opinions chose to legally interpret the set of available Supreme Court precedents. While our results are not uniformly supportive of our hypotheses, they lend general support to our theoretical argument. First, we demonstrate that the Court is more likely to positively interpret (rather than not interpret) a precedent that is ideologically proximate to the Court, that is legally relevant, or that was previously positively interpreted by the Court. When considering negative treatment broadly construed, our data only demonstrate that the legal relevance of a precedent exerts any influence. However, when we restrict our analysis to "strong" negative interpretation of precedent, we uncover reasonable support for the influence of stare decisis in that both the legal relevance of precedent and prior negative interpretation of precedent affect strong negative treatment. Thus, one implication of this study is that, contrary to the attitudinal model's prediction, the Court's prior treatment of precedent does appear to influence the way Justices make decisions. The explanation and prediction of Supreme Court policy outcomes endures as a topic of scholarly inquiry. For decades, scholars attempted to identify the factors that account for the disposition of Court cases, individual Justices' final votes on the merits, and aggregate patterns in Court outcomes (e.g., Baum 1988; Rohde & Spaeth 1976; Segal 1984). The policy set by the Court, however, is not solely, or even mainly, a function of case dispositions. While case dispositions determine who prevails in a particular dispute, the Court establishes legal policy through the legal rules or precedents developed in its majority opinions. These precedents set up referents for behavior by providing decisionmakers with information necessary to develop expectations and by outlining sanctions for noncompliance (see Spriggs 1996; Wahlbeck 1997). As a result, scholars recognize that the interpretation of precedent represents one of the Court's central policy outputs (e.g., Knight & Epstein 1996; Landes & Posner 1976). Despite the acknowledged importance of precedent, few scholars have attempted to explain systematically how or why courts choose to interpret it. The literature on the quantitative study of precedent can be broadly divided into two parts. First, a variety of studies examine either the citation of court opinions (e.g., Friedman et al. 1981; Landes & Posner 1976; Merryman 1977) or patterns of citations among state courts (e.g., Caldeira 1985; Walsh 1997). These articles shed light, for example, on the conditions under which one court will cite the opinions of another court. This line of research, however, does not seek to explain how court opinions actually interpret precedents. Second, a handful of studies examine how the Supreme Court substantively treats its own precedents (e.g., Brenner & Spaeth 1995; Johnson 1985, 1986). For instance, Spriggs and Hansford (2001) show in part that the Supreme Court is more likely to overrule one of its precedents when it is either ideologically distant from the precedent or when the Court has previously interpreted the precedent in a negative manner. Yet, despite this insight into the Court's overruling of precedent, we have little understanding of why the Court more generally chooses to interpret precedent positively, negatively, or not at all. …

Introduction This article documents and provides possible explanations for the degree of judicial activism in eight post-communist countries. We examined constitutional court cases for the three years following the initial adoption of a constitution in the Czech Republic, Estonia, Georgia, Latvia, Lithuania, Moldova, Russia, and Slovakia. We found that contextual political factors, such as the extent to which the party system is fragmented and the extent to which the court enjoys popular trust and confidence (rather than the formal powers entrusted to the court by the constitution or the structure of the political system), contribute most to the degree of activism by constitutional courts. Until recently, judicial politics scholars paid little attention to courts outside the United States. Comparativists have been even less likely to focus on courts for their own sake. Recently, there has been a significant increase in the comparative study of courts by members of both fields. One reason for this increase, especially among comparativists, has been the revival of interest in institutional effects on political developments, particularly in those newly democratizing countries that are busy designing and implementing new constitutional structures. Scholars examining the effects of laws relating to executive institutions and elections have provided a wealth of data on the emerging democracies of post-communist Eastern Europe and the former Soviet Union (Hellman 1997; Frye 1997; Ishiyama & Velten 1998; Ishiyama 1996, 1997, 1999; Holmes 1993; Moser 1995, 1998, 1999; Moraski & Lowenberg 1999; Taras 1997; Elster 1997). While there have been a number of descriptive studies of Eastern European courts (for example, Melone 1996, 1997; Sabaliunas 1996; Ovsepian 1996; Schwartz 2000), only a few studies have focused on the design of judicial institutions (Magalhaes 1999; Smithey & Ishiyama, 2000). Even less systematic comparative work has concentrated on the political effects of constitutional choices on the performance of constitutional courts. This article examines one consequence of empowering judicial institutions-the degree to which judges have become actively involved in deciding constitutional disputes. We examine the degree to which judges disallow the policy choices of other policy makers and explore several factors that contribute to such activity. We find that political factors, such as partisan competition and political support, make more of a difference than the formal institutional factors that have drawn many scholars to the field in the first place. Conceptualizing Judicial Activism Judicial activism is a multifaceted concept.1 Though activism is defined in a number of ways, the ability of judges to exercise political power is at the heart of the concept. For example, Galligan defines judicial activism as "control or influence by the judiciary over political or administrative institutions, processes and outcomes" (1991:70). Courts wielding greater degrees of such control or influence are more activist. We can begin to assess the degree of judicial activism by considering a court's jurisdiction and caseload. Broad jurisdiction allows courts to weigh in on a wider range of policy issues, increasing the scope of judicial policymaking. The volume of cases decided is also relevant-a court that seldom makes decisions has fewer opportunities to influence the course of public policy than does a more active bench.2 In general, courts that decide more cases, across a greater range of issues, should be considered more activist than those that decide a smaller number of cases across a narrower range of subjects. Case outcomes are also important. Courts influence the course of public policy in their everyday task of applying the laws to settle disputes.3 Nevertheless, judicial review is considered a more significant source of court power since it allows judges to trump others' policy choices (for example, Galligan 1991; Holland 1991). …

In reviewing the constitutionality of federal legislation, the United States Supreme Court recently has scrutinized the underlying "legislative record." Since 1995, the United States Supreme Court has invalidated six federal statutes based at least in part on its scrutiny of the underlying legislative materials. Board of Trustees of the University of Alabama v. Garrett represented the full emergence of this rigorous judicial scrutiny, which we term "legislative record review." In Garrett, the Court broke with seventy years of precedent by striking down legislation based solely on the inadequacy of the record developed by Congress. Before Garrett, some commentators had noted and even endorsed the Court's new approach to judicial review of legislation. These scholars, however, had failed to explore the flaw at the center of legislative record review. As we demonstrate, the very concept of "the legislative record," as employed by the Court, is a fiction. The nature of the legislative process belies the existence of comprehensive explanatory materials. The notion of a legislative record, as used by the Court, constitutes an inappropriate importation from different institutional settings of the expectation that a written record will justify a legal judgment. With reference to the insights of administrative law and its agency record review jurisprudence, we argue that reliance on the concept of a legislative record is unworkable and illegitimate. In defiance of separation of powers principles, legislative record review actually embodies more rigorous judicial scrutiny than commonly employed even in "hard look" review of administrative action. The Court's new parsing of legislative statements and submissions is also in substantial tension with typical textualist rejection of recourse to legislative history. Having identified the flaws at the heart of legislative record review, the Article then traces its origins to judicial suspicion of congressional motives. The adoption of this mode of review reveals a newly ascendant judicial distrust of Congress. While courts certainly have a role in reviewing the basis of congressional action, we argue that this kind of review of ostensible factual predicates constitutes an unnecessary and ill-defined intrusion into the constitutionally conferred powers of Congress. In conclusion, we propose various means by which Congress and litigants might create and defend legislation so as to survive the rigors of legislative record review.

This book examines both the constitutional jurisprudence of Supreme Court justice Louis D. Brandeis and one of his most famous and controversial opinions, Erie Railroad Co. v. Tompkins (1938). This landmark decision led to a significant relocation of power from federal to state courts, and, says the author, it provides a window on the legal, political, and ideological battles over the federal courts in the New Deal era and after.

This article evaluates two basic issues about dockets and case outcomes in American appellate courts. First, what determines the extent to which a court devotes its docket to civil cases involving asymmetrical power relationships between litigants? Second, in civil cases in which the "have-nots" are pitted against the "haves," which forces determine the extent to which courts favor the less privileged? To answer these questions, we identify power asymmetric civil cases and the size of each court's docket by examining all 6,750 cases decided in state supreme courts in 1996. Results reveal that contextual factors are formidable in shaping both agenda space and win rates in civil disputes involving conflicts between advantaged and disadvantaged litigants. Institutional features of supreme courts and state court systems, the supply of legal resources, and public preferences all emerge as critical influences on the willingness of the states' highest courts to decide have/have not conflicts and on the ultimate disposition of these cases. In sum, a comprehensive understanding of the ways in which courts treat cases involving the disadvantaged and, more broadly, function as agents of redistributive change cannot be achieved without focusing beyond the ideological preferences of judges and the skill of the litigants. In this article, we ask two basic questions about court dockets and case outcomes. First, we ask which forces influence how much of court dockets involve asymmetrical power relationships between litigants. Second, in civil cases where the "have-nots" are pitted against the "haves," what forces shape the extent to which courts favor the less privileged? The context within which we examine these important questions is state supreme courts. Basically, we argue that some of the confusion among scholars about the ability of courts to serve as agents of redistributive change is the direct result of the case study approach dominating the literature. As it stands, and though there are obvious exceptions, much of the existing work focuses upon single institutions, an approach that precludes a direct systematic evaluation of the effects of institutional arrangements and other contextual forces on agenda-setting and decisionmaking in courts. A comparative cross-sectional research design based in the American states overcomes these limitations. Generally, and consistently with previous research, we posit that the most fundamental functions of courts are structured by the circumstances under which the courts operate, in addition to the preferences of the judges deciding the cases and the law governing the disputes. If we identify these forces and provide a strategy for testing their effects in comprehensive models, we will be able to reconcile previous contradictory findings and construct more satisfactory theories of judicial politics. In this particular case, we can improve our understanding of the ways in which courts allocate space on their dockets among competing groups and allocate resources through their decisions, producing a more refined understanding of the essential role of courts in the political marketplace. In this endeavor, we assume that the factors determining the proportion of cases on dockets involving power asymmetries also determine win rates for the disadvantaged in these cases. This assumption is well grounded in the literature. Both scholars and sitting judges have observed the close connection between deciding to decide and final outcomes. For example, Justice William Brennan (1983: 177) described the agenda-setting process and decision process as "inseparable" and "inextricably linked." Similarly, scholars have noted that "the factors that govern the selection of cases and the construction of the annual agenda are closely tied to the factors that explain the justices' decisions on the merits of the cases" (Pacelle 1995: 251). Thus, in our discussion, we consider both the agenda stage and decision stage of the judicial process, examining the effects of the same set of independent variables at both stages. …

Since 1980, District Court Judges, designated pursuant to federal statute, have helped decide over 75,000 court of appeals cases-nearly one of every five merits decisions. Although scholars and judges have warned that the presence of these visitors on appellate panels may undermine consistency, legitimacy, or collegiality, little empirical evidence exists related to such concerns. Working with an especially complete data set of labor law opinions, the authors found that district court visitors perform in a much more diffident fashion than their appellate colleagues. They contribute notably fewer majority opinions and dissents. In addition, their participations do not reflect their professional or personal backgrounds to nearly the same degree as their appellate colleagues do when voting on labor law matters. The authors' findings and analyses regarding the behavior of designated district judges should be of interest to appellate courts considering the challenges of caseload management and to scholars studying processes and outcomes in the courts of appeal. Over the past two decades, district court judges-designated pursuant to federal statute (28 U.S.C. 292 [1994] )-have participated in nearly one out of every five cases decided on the merits by the United States Courts of Appeals. The circuits invite such participation principally because there are not nearly enough active and senior appellate judges to meet the demands of a burgeoning appeals court docket (Baker 1994, McKenna 1993). Responding to this imperative, designated trial court visitors have helped decide more than 75,000 court of appeals cases since 1980. Scholars in law and political science have on occasion questioned the role played by these judicial invitees. Some have contended that the pre-judicial backgrounds and trial-oriented experiences of district judges differ in material respects from those of "regular" appellate judges (Saphire & Solimine 1995; Slotnick 1983; Carrington 1969). Others have worried that district judge visitors may jeopardize the consistency-of-law values that inform the circuit courts' role in creating and clarifying legal precedent, or that participation by these same judges may compromise the collegiality and vitality of appellate court deliberations (Green & Atkins 1978; Saphire & Solimine 1995; Wasby 1981). It also has been suggested that district judge participation may undermine perceptions of legitimacy, as the appellate courts' presumptively neutral function of declaring the law shades into more prescriptive policymaking (Alexander 1965; Green & Atkins 1978; Note 1963). Surprisingly, little empirical analysis exists regarding how these trial court visitors behave in their secondary appellate role. There is a dearth of information as to whether designated judges participate or vote distinctively from their appellate brethren on substantive law matters. It also is unclear whether district judges bring their individual values and experiences to bear on the judicial enterprise to the same extent as their panel colleagues, or whether they reflect those values and experiences in the same way as they do when serving on the trial bench. This study provides insights into the role of district court judges in appellate decisionmaking. We examine district judge participations in more than 1,100 published and unpublished court of appeals cases reviewing decisions by one federal agency-the National Labor Relations Board (NLRB) -during a recent seven-year period. Our database encompasses all appellate cases decided between October 1986 and November 1993 that resolve unfair labor practice claims under the National Labor Relations Act (NLRA [1994]).1 We have identified the 223 appellate judges and 105 district judges who participated on the court of appeals panels, and how they voted on more than 2,000 substantive labor law issues as to which appellate courts either affirmed or reversed the Board. …

RUTH WEDGWOOD [*] I INTRODUCTION--THE U.S. SIGNATURE AND ITS AFTERMATH President Clinton's signature of the Rome treaty in the twilight of his Administration has punctuated the long impasse over American participation in the International Criminal Court (the "ICC"). [1] Signing on December 31, 2000 (the last day possible for a signature without ratification), the President proclaimed his "strong support for international accountability" and for "bringing to justice perpetrators of genocide, war crimes, and crimes against humanity." [2] A "properly constituted and structured" criminal court, said the President, could "make a profound contribution in deterring egregious human rights abuses worldwide." [3] The signing was unusual, for the President foreswore any intention of ratifying the treaty in the foreseeable future. He would not send the treaty to the Senate for advice and consent, nor recommend that his successor do so, until and unless "fundamental concerns" could be resolved. The United States preferred to "observe and assess the functioning of the Court, over time," said the President, adverting to the need to "protect U.S. officials from unfounded charges." This is a legal realist's vantage--a jurisdictional statute, the elements of crimes, and the specification of procedures do not suffice to show how a court will operate, what the culture of a prosecutor's office will be, or how a court will read its mission. Watching the court in action is a far more rigorous test. But why sign at all, if ratification is purely hypothetical? With signature, said the President, the United States could better "influence the evolution of the Court," and, in particular, address the court's misplaced temptation to assert third-party jurisdiction "over personnel of states that have not" ratified. This, of course, was not an independent reason to eschew ratification. If a country is willing to accept direct responsibility for its nationals' actions (as a treaty party), it has no occasion to worry that there may be an alternative avenue of liability. But the literary grace of the President's signing statement is not the point. Rather, the emphasis on third-party liability is a measure of U.S. anxiety that the court might ultimately choose to criminalize good faith debates in military doctrine. When and how to use force is hardly a settled matter in foreign policy or even in the law. The ICC is asked to interpret and apply norms that are not bright-line rules, including questions such as proport ionality, and the nature of a military versus civilian target. These are hotly debated among responsible militaries, and must in practice be informed by military expertise and battlefield alternatives, as well as by political and ethical judgment. The United States has understandably feared that good faith operational questions could be precipitously removed from their usual place of debate in alliance headquarters and military manuals, and be recast in a courtroom's criminal rhetoric. Should one disable dual use electrical systems that support antiaircraft as well as hospitals? Does an adversary's perfidy in misusing civilian sites to launch attacks then change the eligibility of those sites as targets? The standards for war-fighting are often more akin to open-textured principles, rather than self-executing rules--depending on acute judgments of facts and alternatives, in a fluid situation where lives are at stake and one hardly has time to "make a record" for litigation later. It is not surprising that the review of all battlefield decisions by civilians without military experience might worry a professional military operator, at least in countries where the military actually deploys on duty in combat missions. The President's treaty signature may advance the international debate over the American request for a fair chance to watch the court in action. A unilateral diplomatic gesture can be risky, since there is no guarantee of reciprocity. …

Over the course of the last century, and especially in the last forty years, the Supreme Court has resolved a broad array of constitutional claims that have arisen in the context of public elementary and secondary schools. In so doing, the Court has created a body of rules that govern the constitutional rights that students (or their parents) can legitimately assert against state and local education officials. The purpose of this Article is to study these education cases as a whole - to examine what one might call the Court's public schools jurisprudence. What one finds lurking among these cases is an intriguing puzzle: some constitutional rights are explicitly limited in the school context, while others are either no different or are slightly strengthened within the school setting. Student free speech, Fourth Amendment, and due process rights are more limited in the school setting than they are outside of that setting. With regard to this group of rights, the Court has characterized the government as acting in a special capacity - that of educator - and has accordingly given education officials greater leeway to bend constitutional rights in order to achieve certain educational goals. By contrast, student equal protection rights to be free of racial and gender discrimination, or to benefit from affirmative action programs, at the moment appear to be no different within the school setting than they are outside of that setting. The same is true with regard to student free exercise rights. Students' Establishment Clause rights, finally, are, if anything, stronger than those possessed by citizens outside of the school context; put differently, the limitations on government support of religion are more stringent within public schools than outside of them. The central question addressed by the paper is whether there is a unifying principle or theory that makes sense of the Court's decisions. After suggesting that a number of factors seem to play an influential role in the Court's decisions, including the ages of the students and the nature of the constitutional rights themselves, I will argue that the key factor to the cases is a distinction between two functions of education: academic and social. It appears that the more a particular policy has to do with the academic function of schools, the more likely it is that the Court will uphold the policy, even if it means truncating a constitutional right. The further a policy moves away from the core academic function of schools, the more likely the Court will apply traditional constitutional rules to judge the policy and strike it down. After demonstrating the traction of this positive theory, I offer a general and limited defense of the Court's approach, as well as attempt to answer possible critiques of the approach.

Comparativists have recently taken an increasing interest in the politics surrounding constitutional courts. This literature has focused mainly on the impact of constitutional review on policy output.' A theoretically prior but intimately connected issue is the ability of courts to establish and protect their institutional integrity and to ensure compliance with their decisions. This issue is theoretically prior because without such authority courts will have little effect on policy. It is interesting because authority is problematic. Courts occupy a weak formal position. They possess no direct enforcement mechanisms and few powers to guard their independence.2 At the same time, courts with the power of constitutional review can impose an unpleasant constraint on government power, and historically executives have challenged them on numerous occasions. Franklin D. Roosevelt's court-packing plan, the curtailment of the Spanish constitutional court's powers in 1985, and the abolition of the constitutional courts of Cyprus in 1964 and of Austria in 1932 provide clear examples. This weak formal position thus raises a puzzle. How can constitutional courts resist executive challenges to their power and independence, or why do they fail to do so? Scholars concerned primarily with the U.S. Supreme Court have highlighted "public support" for courts as one component of court authority.3 As Caldeira has put it, "the lack of any formal connection to the electorate and its rather demonstrable vulnerability before the president and the Congress mean that the Supreme Court must depend to an extraordinary extent on the confidence, or at least the acquiescence, of the public."4 In his work on Roosevelt's court-packing plan, Caldeira has made a strong case that the justices are aware of the importance of public support and that at least on occasion they act consciously to foster it. Implicit in such emphasis on public support, of course, is the notion that directly elected officials are likely to refrain from attacking an institution whose widespread support holds out the threat of electoral punishment.5 A second argument about the authority of high courts departs from an insight of James Madison. Madison argued that successful constitutional design depends on providing the various branches with the interest and means to defend each other against encroachments.6 The political system must be set up in such a way that the interplay of various institutions serves to hold them all in check; thus, the strategic interactions of political players are a key to understanding how courts can (or fail to)

"New federalism" is a principle of political change, spurred by conservative activism, that seeks to limit federal authority and return power to the states. It has taken on significant political importance in health care policy with contentious debate over which level of government should set standards, as well as perform and pay for services. Just as important, the Supreme Court has been engaged in a conservative project that fundamentally alters the balance between the supremacy of federal law and the separate sovereignty of the states.[1] Three cases in the Supreme Court's 2000 term symbolize this transformation in American federalism--involving privacy, violence against women, and age discrimination. The legal arguments may not interest those concerned with health policy and ethics, but they should. The Supreme Court has explored the contours of a new federalism in which states retain a sphere of autonomy in matters of public health and safety. A reenergized conservative majority on the Supreme Court, led by Justices Rehnquist and Scalia, has been actively denying Congress the power to enact and enforce important public health and civil rights legislation. The Rehnquist Court has implemented its interpretation of a states-rights agenda in two ways: limiting federal power and defending state sovereign immunity. National Power to Protect Health and Safety The Supreme Court's 1995 decision in United States v. Lopez[2] signaled a change in the Court's view about the balance of federal and state powers in the constitutional design. In Lopez, the Court held that Congress exceeded its commerce clause authority by making gun possession within a school zone a federal offense. Concluding that gun violence did not "substantially affect" interstate commerce, the Court declared the statute unconstitutional. In Printz v. United States,[3] this time using the Tenth Amendment's "reserved powers" doctrine, the Court overturned provisions in the Brady Handgun Violence Prevention Act that directed state and local law enforcement officers to conduct background checks on prospective handgun purchasers. (The Court has used similar "reserved power" arguments to overturn federal environmental initiatives.[4]) Here are cases where the nation's highest court was prepared to invalidate politically popular measures thought to be important to the public's health and safety. The Court did not invalidate these laws on grounds that regulating firearms was an unimportant aim of government, but only that it was outside the reach of the federal government. States would still be free to legislate in traditional realms of public health, but Lopez and Printz left little doubt that the Rehnquist Court would henceforth examine the exercise of federal police power authority. These cases probably do not indicate a wholesale retreat from national public health powers that emerged with Franklin Delano Roosevelt's New Deal. Certainly, Congress will continue to have wide authority to regulate businesses and individuals when they engage in explicitly economic or commercial activity. For example, in Reno v. Condon,[5] decided in the current term, the Court upheld a federal law that restricts the states' ability to disclose personal information in drivers licenses. Because drivers' information is an article of commerce, the Court found that its sale or release into the interstate stream of business is sufficient to support congressional regulation. The important question these cases leave open is the constitutionality of public health regulation of intrastate activity, particularly in the field of environmental protection. Many astute observers predict that during its current term, in United States v. Morrison, the Supreme Court will strike down the Violence Against Women Act as an unconstitutional exercise of the commerce power. The act creates a civil rights remedy, permitting survivors to bring federal lawsuits against perpetrators of sexually motivated crimes of violence. …

While justices have considerable discretion in the picking and choosing between cases in the creation of their agenda, how much discretion do they exercise in the picking and choosing between the issues that were presented by the parties, or even in developing new issues? Given the Warren Court's reputation for articulating broad rules that went beyond the particular circumstances of an individual case, especially in the area of civil rights and liberties, we would expect that this issue fluidity, particulary the expansion of issues, occurred with some frequency during this era. With an analysis of a random sample of 200 cases from the Warren Court, I found that the justices developed new issues in about one-fourth of all cases, while they suppressed issues that had been fully briefed and argued in over half of all cases. In addition, surprisingly, the Warren Court tended to suppress issues in civil rights and civil liberties cases, rather than expand them.

Since Marc Galanter (1974) formulated the hypothesis that parties with greater resources, usually "repeat players," fare better in courts and are better able to influence legal change than "one shotters," numerous scholars have provided empirical insights into the extent to which stronger parties enjoy advantages in litigation. Studies of U.S. trial courts provide evidence that "haves" do tend to come out ahead (Galanter 1974; Owen 1971; Wanner 1975). Governments generally have been more successful in litigation than businesses and other organizations, which in turn have been more successful than individual litigants. Greater resources allow the "haves" to hire the best lawyers and incur the expenses for extensive discovery, expert witnesses, appeals to higher courts, and other activities. As repeat players, they can structure their interactions with the courts by carefully selecting cases to pursue, engaging in forum shopping, settling cases when the prospects appear low for success at trial or on appeal, implementing comprehensive litigation strategies, and developing favorable legal precedents. Studies of litigant success in appellate courts, however, provide less conclusive support for Galanter's hypothesis. Although stronger parties are substantially more successful in U.S. Courts of Appeals (Songer & Sheehan 1992), party type is not a strong predictor of success on the merits in U.S. Supreme Court litigation (Sheehan et al. 1992). At the state level, Wheeler and his colleagues ( 1987) examined 16 state supreme courts from 1870 to 1970, finding that the "haves" generally came out ahead but that differential success rates between stronger and weaker parties, although statistically significant, were not great. On many measures, the net disadvantage of weaker parties was less than 5% to 6%, causing the authors to conclude that the advantage of the haves is "rather small" (1987:403). This research note relies on more recent data to reassess the relationship between the relative strength of litigants and their success in state supreme courts. I examine litigant success in five states during the years 1975, 1980, 1985, and 1990. I also attempt to push forward our understanding of the importance of resources by accounting for a variety of alternative explanations for litigant success, including judicial bias, that Wheeler et al. (ibid.) do not consider. I present a framework similar to that of Wheeler et al. and Songer and Sheehan ( 1992) to explore whether powerful litigants get their way in state judiciaries. Sample Selection and Case Coding The analysis relies on a sample of published opinions from the supreme courts in Alabama, Kansas, New Jersey, South Dakota, and West Virginia in the years of 1975, 1980, 1985, and 1990. Because the case selection procedures and variable coding are not identical to that used by Wheeler et al. (1987), the differences must be made clear.l For each court in each year, I began by identifying all opinions of one page or longer published in West's regional reporters. When a court issued less than (or close to) 100 opinions in a given year, all were included in the analysis. When a much greater number of opinions were issued, 100 were chosen at random. The search yielded at total of 1,981 cases, with 400 opinions each from the high courts of Alabama and Kansas, 383 from New Jersey, 394 from West Virginia, and 404 from South Dakota. Four law student assistants coded each case for a variety of variables, including the nature of the appellant and respondent, agenda area, and the outcome of the case. Reliability tests using a random 10% sample of cases showed a high degree of reliability among coders (see Appendix A). Limited resources and the lack of relevant information in published court opinions makes it difficult to obtain information about the resources of specific parties. As a result, I adopted the strategy used by Wheeler et al. (ibid. …

Notwithstanding the opinions of some observers, who felt that the U.S. Supreme Court might back away from its stand opposing patronage (Sylvia, 1994, 13; Boyd, 1992; Daniel, 1992), the Court is not only standing firm but is continuing its assault. Recent Court cases have expanded the prohibitions against the use of patronage. It seems that the Court takes full advantage of the cases it accepts in this area to reaffirm its opposition to patronage. Moreover, lower courts (at least those in the Seventh Circuit) seem to be taking their cue from the Supreme Court with interpretations of Supreme Court rulings that further restrict the use of patronage whenever possible. The majority of Supreme Court landmark cases extending patronage prohibitions originated in the U.S. District Court for the Seventh Circuit, and, more specifically, they were Illinois cases. A review of these cases and seventh circuit cases extending Supreme Court decisions shows the progressive judicial dismantling of patronage practices. Unlike Supreme Court decisions, which are binding nationwide, circuit court decisions are binding only within the area covered by the circuit. However, these cases are often used as guides by judges in other circuits in rendering decisions. Also, circuit court cases interpreting Supreme Court decisions are often an indication of future Court directions. Although the current direction seems clear, the Court often surprises observers by reversals and decisions that seem to be inconsistent with past decisions. Illinois has a long history of patronage practices. Chicago, under the mayoral regime of Richard J. Daley, gained notoriety as a patronage haven. Chicago was touted by both academics and practitioners as the place where patronage was developed to an art form (Royko, 1971; Rakove, 1975). The fact is less well known, but patronage was also an essential part of Illinois state government (Nowlan, Hanley, and Udstuen, 1991). Patronage was pursued vigorously by both political parties--the Republicans at the state level and the Democrats in Chicago. It is perhaps appropriate that both major political parties figured in significant patronage rulings. Chicago was where the judicial assault on patronage began. The most far-reaching decision on traditional patronage practices, however, involved Illinois state government under a Republican administration. The demise of patronage started with Elrod v. Burns in Cook County. The case banned political firing in positions that did not involve non-policy making. It progressed to the Rutan case, which banned most forms of politically motivated personnel practices in Illinois state government for nonpolicy positions. A significant case is the Shakman Decree, which imposed a court-supervised nonpatronage hiring system on Chicago. More recent Illinois court cases have prohibited patronage in the firing of outside contractors for strictly political reasons and banned the patronage hiring of temporary employees based on political affiliation. Most of the Illinois cases considered here are U.S. Supreme Court decisions that established nationwide precedence. Others are circuit or district court decisions that interpret and extend previous Supreme Court decisions on patronage. The court cases reviewed in this article are the Elrod case, the Rutan case, the O'Hare decision, the Shakman Decree, and the Vickery decision. The employment practice affected by each case is indicated in Table 1. With each case the Court cast the antipatronage net further. What began as a narrow ruling applicable only to the firing of employees who were not involved in policy making has now been broadened to include the hiring of full-time or temporary employees and the firing of independent contractors. Table 1 Illinois Court Cases and Their Contribution to Case Law on Banning Patronage Practices Name Year U.S. Court Employment Practice Elrod 1976 Supreme Firing Shakman 1983 District Court-monitored hiring system Rutan 1990 Supreme Hiring, promotions, transfers, recalls O'Hare 1996 Supreme Firing government contractors Vickery 1996 Circuit Hiring temporary employees The Judicial Attack on Patronage Patronage flourished from the early days of the American republic. …

Many studies suggest that courts fail to protect individual rights since they support and uphold state repressive practices during periods of emergency or confrontation. Previous studies focused on judicial policies as reflected in judicial declarations and decisions that were fully disposed by judges and officially published. I argue that the study of out-of-court settlements and the comparison between the outcomes of settlements and the judicial rhetoric are key to understanding the behavior of courts in times of national crisis. At such times, courts may hesitate to openly confront the government on the issue of minority rights, but they may strive to protect minorities by exerting pressure on the governmental legal apparatus and by effecting out-of-court settlement: more favorable to minorities than official decisions. Thus, courts influence social practices while avoiding government or public opinion counterreactions that would impair their institutional autonomy. This argument is demonstrated in a case study of the Israeli High Court of justice during the Palestinian Intifada. It is an accepted postulate that courts are important social institutions having a broad influence on political and social processes. Nevertheless, the techniques by which judicial influence is exerted have yet to be fully explored by social scientists. Declarations included in judicial decisions may, in some cases, stir a process of social change. Likewise, the outcomes of judicial proceedings, whether in an individual case or a series of related cases, may have wide effects on political institutions. judicial rhetoric and formal court orders are not, however, the only ways by which courts may influence the social environment. Other, albeit less formal, methods may be used by judges to achieve social goals. In particular, courts may pressure the parties to litigation to bring about an out-of-court settlement and thus avoid the need for a final judicial disposition. judges may also express their opinion on a certain point of law or policy, either in court during the course of litigation or via other channels of communication, and thus affect the motivation or the persistence of certain parties to pursue legal proceedings (Mather 1995; Atleson 1989). The role of informal judicial techniques within the process of judicial intervention in political and administrative processes is the focus of this article. I argue that in some cases, in order to evaluate the role courts play in society, it is not enough to study the open rhetoric and the final orders given by courts. Rather, one must also take into account informal techniques used by courts, as well as the relationship between those techniques and the formal methods of influence, so as to obtain the full picture of the courts' involvement within a particular field of social activity. This is particularly true when courts are required to intervene in sensitive political problems, such as in the protection of human rights in emergencies. Constitutional theorists maintain that courts are required to defend individual rights, particularly those rights of minorities or disadvantaged groups in the relevant political community. Courts are also expected to refrain from excessive interference in decisionmaking by the other two branches of government. Both these themes derived from the assumption that courts, unlike the legislature and the executive, are not representative institutions. They are not required to reflect in their decisions the popular preferences of the majority. Rather, they are expected to do the reverse: to confront popular decisions that endanger human rights (Bickel 1962; Ely 1980; Ackerman 1984). The "success" of courts in maintaining their institutional autonomy, according to this line of thinking, is revealed by the ability to withstand political pressures and perform their countermajoritarian role (Barzilai 1997). To what extent, however, do courts fulfill their function of protecting individual rights against governmental actions? …

Since Alexander Bickel, scholars have understood the Supreme Court to have a threefold power: striking down acts for unconstitutionality, legitimating them, or employing the passive virtues. Professor Katyal contends that the Court wields a fourth power: advicegiving. Advicegiving occurs when judges recommend, but do not mandate, a particular course of action based on a concern for rule or principle. Courts have been giving advice, consciously at times, unconsciously at others, and this article seeks to provide a normative justification for the practice. Professor Katyal breaks down advicegiving into several categories and explains how advice, when given to the political branches, can engender a colloquy that maximizes respect for the coordinate branches while also serving the goals offederalism, enhancing political accountability, and encouraging judicial candor. In particular, Professor Katyal explains how advicegiving can become an alternative to aggressive forms of judicial review while simultaneously maintaining constitutional fidelity.

Theory: Supreme Court opinion authors make strategic calculations about the need to craft opinions that are acceptable to their colleagues on the bench. Hypotheses: The willingness of justices to accommodate their colleagues depends upon the size and ideological makeup of the majority conference coalition and the number of suggestions and threats issued by their colleagues. These strategic considerations are important even after controlling for a series of nonstrategic factors, such as case complexity. Method: To examine the extent of accommodation in Supreme Court cases, we examine the number of draft opinions circulated by the majority opinion author. We use a Generalized Event Count model to determine whether strategic or nonstrategic efforts influence the amount of accommodation that occurs. Results: We show that accommodation is influenced strongly by strategic concerns-including the size of the majority conference coalition, the ideological distance of the author from the majority coalition, the ideological heterogeneity of the conference majority coalition, and the positions taken by majority coalition members and by nonstrategic factors, including the author's workload and the complexity of a case.

It is a rare attorney practicing in the federal courts who does not encounter government lawyers on a regular basis.1 Those of us on the bench-particularly those of us in the D.C. Circuit-have had many opportunities to become familiar with government lawyers. In my nineteen-plus years as a federal appellate judge, I have engaged with hundreds-perhaps thousands-of government lawyers as they argue their way through the approximately eighty-three percent 2 of our docket in which the federal government is a party. Before becoming a judge, I did two stints in the Department of Justice ("DOJ"), the second time as an Assistant Attorney General for Legislative Affairs. Although I functioned in that job primarily as a legislative advocate for DOJ before Congress, I often discussed the Department's positions on pending bills with lawyers both within DOJ and within other departments and independent agencies. In my private practice, I worked both alongside and in opposition to government attorneys. Like eight of my ten colleagues on the D.C. Circuit, I have "been there," and from my "here now" vantage point as a judge, I propose to set down, largely impressionistically, some of my observations and reactions to government lawyering in court.

Consider the following scenario: A three-judge panel on a federal court of appeals has before it a complex securities law case. Each of the three judges on the panel is a former criminal lawyer. Among the three, the only experience any one of them has with securities law is a single course on the subject that one of them took thirty years ago. The central issue in the case is both difficult and close. Although there is no useful case law on point, the issue frequently arises both in litigation and in practice. Many cases have involved the issue, but each court has found an alternative basis to decide the case before it, leaving the issue unresolved. Presently, at least two district court cases that raise a similar issue are on appeal in other circuits. If the panel tackles the issue squarely, its decision is likely to affect both the pending litigation in those other cases and the behavior of corporate actors in future transactions.

As I write, the Supreme A Court has just agreed to hear Compassion in Dying v. Washington and Quill v. Vacco, the two cases in which United States circuit courts of appeals held that a state may not constitutionally prohibit physicians from helping a terminally ill person who wishes to commit suicide to do so. These cases have already received lavish comment and criticism, and no doubt the Supreme Court's opinion will garner even more. Reasonably enough, most of this analysis addresses the merits of physician-assisted suicide as social policy. I, here, want to talk about how setting bioethical policy through constitutional adjudication actually works and how its usefulness is diminished by some practical deficiencies. Courts are often thought well-equipped to resolve social issues because they are guided by the thought and wisdom that animated the Constitution. Sometimes this argument has some truth. But bioethical questions are generally resolved under a provision (the Fourteenth Amendment) that says only that no state shall "deprive any person of life, liberty, or property without due process of law." These words, noble though they are, give courts little insight and little direction. The Supreme Court has been able to find in them such a suspiciously wide range of lessons--from the unconstitutionality of statutes limiting a woman's right to an abortion to the unconstitutionality of statutes limiting the hours an employee can be required to work--that one may begin to wonder just what the justices have been consulting. The vagueness of the Fourteenth Amendment throws judges back on their own resources. Because judges vary in experience and talent, these resources vary. But all judges are lawyers. A lawyer's training is centrally about analyzing legal documents, particularly judicial opinions. It does little, for example, to equip lawyers to understand and respect empirical evidence about social behavior and does too much to convince them that the best evidence about how the world works is the particular facts of a litigated case. The practice of law may remedy some of these ills, but today most sophisticated legal practice is too specialized to expose lawyers broadly to social issues. Yet once appointed, judges must become the broadest kinds of generalists. In short, judges are lawyers who--narrowly trained and narrowly experienced--are unlikely to come to the extraordinary range of problems they face with expertise or understanding. What is worse, judges are less well situated to learn about these problems than one might expect. True, the trial-court judge presides over proceedings in which evidence is introduced. But a systematic flaw of constitutional adjudication is that it promulgates grand principles on the basis of a single case's facts. Courts tend to assume that the case before them typifies the social problem at issue and that the parties before them represent all relevant points of view. And since the parties, not the judge, decide what evidence will be introduced, the judge does not hear what will not benefit the parties, and the quality of the information introduced crucially depends on the wit and learning of the attorneys the Quinlans or the Cruzans happen to hire and of the too often modestly gifted political appointees and civil servants who represent state governments. To be sure, interested groups may file "friend of the court" briefs. But in my experience, appellate judges (at least) rarely read them. Suppose, though, that this haphazard process leaves the federal trial judge well informed. That judge's decision will only affect the people within that judge's district. If several states are to be reached, the case must be presented to a circuit court of appeals. If the whole country is to be reached, the case must be taken to the Supreme Court. Ironically, though, as the case's reach widens, the judge's contact with the evidence shrinks. The parties normally reprint only a few significant documents from the trial record for the appellate judges. …

The relationship between the fairness and accuracy of political journalism and the health of electoral politics in the United States has been the subject of frequent study and comment. Both scholars and journalists have expressed alarm at the corrosive effect that cynical, adversarial, or sensationalistic reporting has had on the process of running for office and governing the country.1 But the relationship between the quality of legal journalism and the vitality of our judicial institutions has received much less attention, with perhaps the sole exception of the continuing debate over permitting live television coverage of proceedings such as the O.J. Simpson murder trial.2

The preceding Supreme Court decisions led to the following conclusions: firstly, although the Supreme Court in these decisions repeatedly insists that recourse to Islamic Shari'a is a matter of policy to be left entirely to the federal legislature, the Court repeatedly announced that all federal legislation should be derived from Islamic Shari'a. The Court thus adopted the Islamists position according to which any legislation violating the Shari'a dictates should be considered unconstitutional.66 Secondly, although, as mentioned, there was strong evidence of an apparent conflict between the Constitution and the laws dealt with by the Supreme Court in the aforementioned judgments, the Court was reluctant to declare the laws unconstitutional. This is accounted for by the Court's insistence on creating uniformity among these judgments. Greater conflict occurred between the Constitution and Articles 61 and 62 of Abu Dhabi Law than occurred between the Constitution and the Alcoholic Drinks Laws of Abu Dhabi and Sharjah. The fact that there was seen to be no conflict between the Constitution and Articles 61 and 62 naturally led the Supreme Court (for the purpose of creating uniformity among its judgments) to deny the existence of conflict between the Alcoholic Drinks Laws and the Constitution. Thirdly, the Supreme Court in interpreting and applying Article 7 of the Constitution in the judgments mentioned above, distinguished between civil and criminal matters. In answering the question of the legality of bank interest, the Court considered the application of the Shari'a as a matter of policy to be left to the legislature, and not for the judiciary to decide. Concerning the application of the Shari'a in criminal matters, the Court declared that the lower federal courts should apply the punishments prescribed by the Shari'a in Hudud offences. Indeed, practice in the UAE shows the application of Shari'a in the sphere of criminal matters only; it does not apply to commercial matters, especially in the case of applying interest in commercial law as proven by the Supreme Court in the Junatta Bank case. The roots of such a distinction can be found in the answer to the question, why was the application of Shari'a rules regarding Hudud offences made obligatory by the Supreme Court, while the application of the Shari'a rules affecting bank interest was not? The probable answer is that the Supreme Court has shied away from applying the Shari'a where it would threaten orderly economic development and the modernisation of its institutions.67 The application of Hudud punishments, by comparison, threatens no such disruption.

The juvenile court has been subject to increasing criticism over the years, particularly with regard to its handling of delinquency cases. This is in part the result of an inaccurate view of the court as primarily a criminal court that adjudicates crimes committed by children. This article proposes an alternative model for the court, one that encompasses its jurisdiction over dependency and status offense cases, as well as delinquency cases. In describing this new conception of the juvenile court, an analogy is made to a "bankruptcy" court that intervenes when family members violate the laws regulating their relationships to one another. This new juvenile court would not take direct responsibility for the rehabilitation of child or family. Instead, it would use its power to hold private and public caretakers accountable for fulfilling their roles as supervisors and habilitators of children. The article concludes by exploring the advantages and potential disadvantages of this new vision of the juvenile court.

The history of the juvenile court precedes its formal beginnings in the Illinois Juvenile Court Act of 1899. This article traces key trends in the early history of the court, beginning with the founding of separate penal institutions for children in the 1820s and ending with the development of critical analyses of court practice in the 1930s. The Illinois statute distinguished between delinquent and dependent youths. However, early nineteenth-century intervention typically did not make such a distinction: children convicted of crimes and children who were abandoned, abused, or simply very poor were often housed in the same institutions. Both criminal behavior and poverty were viewed as threats to the social order. In the second half of the nineteenth century, efforts were made to treat dependent and delinquent children differently. Private sectarian agencies were founded to remove noncriminal youths from their homes or the almshouses and "place them out," often either with families in other states or in industrial schools. The reform efforts behind the passage of the Illinois statute were intended to create improvements in the institutions that intervened on behalf of children. Reformers showed little concern for the procedures used in these interventions, and the resulting statutory language provides few procedural guidelines. Nineteenth-century practice had focused on assessing the children who came before the court for their fitness for rehabilitation and de-emphasized the adjudication of the offense itself. This practice continued after the development of the juvenile court at the turn of the century. The model for ideal juvenile court judicial practice--epitomized by judge Ben Lindsey of the Denver, Colorado, court--called for a rapport between judge and child and the personal involvement of the judge in the child's reformation. This personal treatment, though popular, came at the expense of the child's due process rights. The movement in the early twentieth century to involve mental health professionals in this rehabilitation diminished the court's direct involvement but did nothing to address procedural inadequacies. These were finally resolved in the due process cases of the 1960s and 1970s.

This article describes the changing role of the juvenile court from the perspective of an urban juvenile court judge. The author’s experiences as the administrative judge for Baltimore City’s juvenile court address typical current juvenile court dilemmas such as lack of funding, physical space that is inadequate for the needs of the court and those it serves, and limited dispositional options for juvenile offenders. Examples of effective judicial advocacy are presented, as are suggestions for positive court reform.

This article surveys the current landscape of the juvenile court. The original concept of this court, when implemented by state legislatures, took different organizational forms. The length of judges' assignments to this court varies as does the extent of their specialization. These courts differ from one another in numerous ways such as the minimum and maximum ages of their delinquency jurisdictions, the types of cases they are authorized to hear in addition to delinquency and child abuse and neglect, the extent to which referees or quasi-judicial hearing officers hear cases, whether or not the juvenile probation department is administered by the court, and the individual practices that constitute particular court cultures. Today change in one form or another is common to all juvenile courts as this institution adapts to contend with the delinquent behavior of young people and with the failures of adults responsible for the well-being of their children.

During the 1960s and 1970s, the Supreme Court issued a number of decisions guaranteeing certain procedural rights to juveniles. This article assesses the impact of these decisions on the actual practices of the delinquency jurisdiction of the juvenile court. Studies show that, by and large, the procedural mandates have not been met. A key example is the fact that a significant percentage of juveniles still do not receive effective legal representation. This article also explores the potential disadvantages to juveniles of no constitutional right to a jury trial in juvenile court, waivers into the adult criminal court system, and diversion programs. Because of the juvenile court's resistance to reform, a number of juvenile justice scholars are advocating the abolition of its jurisdiction over delinquency cases. The article concludes with various viewpoints on this current controversy.

In recent years scholars of both the Supreme Court and the Congress have begun to devote increasing attention to congressional attempts to reverse Court decisions declaring federal statutes unconstitutional, while Court decisions involving state laws have not garnered nearly the same amount of attention. We know that the Court strikes down state laws with far greater frequency than federal laws and that many of the most contentious issues facing the Supreme Court, the Congress, and the nation have arisen at the state level. It is our purpose to develop a model of congressional decision reversal action regarding all state laws declared unconstitutional by the Supreme Court from 1953 through 1990. Using both probit and regression models we find that the electoral concerns of members of Congress, the nature of the issue the Court addresses and the degree of federal govern mental impact of the Court decision are all significant predictors of both the likelihood of a response and the extent of the congressional response.

FOLLOWING THE CONSTITUTIONAL CRISIS OF 1937, the personnel of the United States Supreme Court changed rapidly as Franklin Roosevelt named new justices whom he believed committed to the modem views of the New Deal. The Roosevelt appointees constituted a majority of the Court by 1942, but instead of harmony, the Court entered one of the most divisive periods in its history. Economic issues had dominated the Court's calendar for nearly a halfcentury, and judges had often imposed their own conservative views to strike down reform laws passed by Congress or the state legislatures. Critics had demanded that the courts exercise judicial restraint, and defer to the elected political organs of government in determining policy; courts should strike down laws only if they clearly violated constitutional constraints, and not because the judges disagreed with them. But beginning in the late 1930s, new questions of civil liberties and the reach of the Bill of Rights replaced economic issues as the main items on court agendas, and these cast the jurisprudential debate between judicial restraint and judicial activism in a new light. The struggle within the Court in the early 1940s can be examined not only in terms of competing judicial philosophies, but by looking at personalities as well. Felix Frankfurter and William 0. Douglas, both

The 1973 "Roe v. Wade" decision is being further dismantled by the Supreme Court. However in recent decisions the new Court majority (except Justice Antonia Scalia) seems to say that there is a constitutional right to abortion. The "Hodgson v. Minnesota" and "Ohio v. Akron Center for Reproductive Health" decisions addressed difficult topics; the ability of a minor to give informed consent; and the rights of parents with regard to minor children. In most circumstances medical treatment of children must be authorized by a guardian. However in many states children may seek treatment for pregnancy substance abuse sexually transmitted diseases and psychological disturbances. In "Planned Parenthood of Central Missouri v. Danforth" and "Bellati v. Baird" the Supreme Court ruled that constitutional protection of abortion could not be conditioned by age and that parents could not say no to their daughters wish to have an abortion. If a girl did not want to notify her parent she could go to a judge instead. The Court never ruled on whether parental notification was constitutional or whether 1 parent (and if so which) or both had to be notified. All of these issues were addressed in "Hodgson" and "Ohio" in ways that were damaging to the welfare and rights of women. In "Hodgson" the Court decided that states may require both biological parents to be notified as long as they have judicial bypass. In "Ohio" the Court approved the states complicated legal judicial bypass proceedings. It also ruled that the proceedings do not have to be anonymous just confidential. The reasoning behind the decisions is ambiguous and contradictory. Justice Sandra Day OConnor agreed that the Minnesota law is very stringent. She said that it was "unreasonable when one considers that only 1/2 of the minors in the State of Minnesota reside with both biological parents." The Courts majority explained that a 48-hour waiting period between the notification and the abortion might place a burden on the rights of the minor but the Court considered that burden "minimal." The future constitutionally of abortion is on the line. The impending Court changes are the forerunners of more retreat from abortion rights.

This article examines the ways in which litigation research has taken an insiders' view of the courts and the problematic implications of this position for a more critical analysis of sociolegal institutions. The first part presents a brief overview of the literature, showing the way in which court and judge are often collapsed into one, ahistorical and unchanging actor. Building on this critique, the second part presents a definition of the court as an organization that draws on a historical, comparative, and critical perspective. Finally, part III offers suggestions for expanding and enhancing research on litigation in the future.

Major changes in the amount and nature of the business of the Supreme Court present managerial problems. The court's caseload or docket has grown markedly in the last 60 years. Whereas in 1920 there were 565 cases on the docket, that number grew to over 1,300 by 1950, over 2,300 by 1960, 4,200 by 1970, and to over 5,300 by the beginning of the 1980s. From the more than 5,000 cases each term, the court now reviews less than 10 percent. Only about 150 cases, or 3 percent of the docket, are given full consideration and decided by written opinion.' Still, Chief Justice Warren Burger and other justices complain about the caseload and workload. Shortly after arriving at the court in 1969, Chief Justice Burger warned that by 1980, without changes, "the work of the Supreme Court of the United States will break down or it will deteriorate in quality so that its historic role will not be performed adequately."2 During his tenure, modern office technology and managerial practices have been introduced in the court. The justices have acquired more law clerks and secretaries. The court's administrative personnel have increased in number and become more professional. These changes have facilitated more efficient processing of the caseload, but without resolving the workload problems of the justices. "Only fundamental changes," Chief Justice Burger again warned in 1983 and 1985, "will provide a solution that will maintain the historic posture of the Supreme Court, will ensure 'proper time for reflection,' preserve the traditional quality of decisions, and avoid a breakdown of the system-or of some of the justices."3 All of the justices now agree that they are overworked by deciding too many cases. But they cannot agree on what to do about it. Justice John Paul Stevens has said that they are "too busy to decide whether there was anything we could do about the problem of being too busy."4 Yet, the justices differ in their perceptions of the problem. Although agreeing that some sort of major change may become necessary, they disagree about the causes of the workload problem and, in Justice Potter Stewart's view, "cannot agree on a solution."5 In historical perspective, increases in the caseload stimulated jurisdictional and institutional reform, internal organizational changes, and forced the justices to alter their practices and processing of the business of the court. After briefly discussing the growth of the docket, this article assesses the basic kinds of responses available to the court for managing its caseload and workload. * Like other state and federal courts, the caseload of the Supreme Court has greatly increased over the last few decades. This article examines the growth in the court's docket and alternative ways of managing the increased workload. Current proposals are considered in light of past jurisdictional changes and recent organizational and procedural innovations within the court. As the caseload continues to grow, the article concludes, some combination ofjurisdictional, organizational, and procedural responses will prove necessary, along with the justices' own exercise of self-restraint in granting cases and writing opinions.

For at least the past decade, the workload of the Supreme Court of the United States has been too great to dispatch efficiently and thoughtfully within an annual term. Ten years ago, almost everyone except the Justices themselves agreed that there was a serious problem. (The Court, of course, was divided.) The only question was what, if anything, should be done about it. Today, the Court is virtually united, but only in recognizing the existence of a problem. At the conclusion of October Term 1981, seven Justices-speaking individually and extrajudicially-certified that they had too much to do each year to perform at a level that the profession and the country are entitled to expect. But the question remained, what to do? Before any debate-if there is to be a serious debate and not simply an annual end-of-term amusement on the op-ed pages-focuses exclusively on remedies, it is necessary to look more carefully at the problems. The right answer depends on the right question. Too often, the Court and its critics define the problems in terms of numbers: too many petitions for certiorari