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Recent scholarship explains the impact of Supreme Court precedent on state supreme courts primarily as a function of the typical political preferences of state supreme court justices, the institutional mechanisms governing retention of those justices, and the state?s recent history of conflict with the U.S. Supreme Court, but not the characteristics of the original Supreme Court decision (Comparato and McClurg 2002, 2003). While this research provides interesting evidence on the sources of judicial impact at the lower level, it contradicts the emphases found in a number of case studies (Beavers and Walz 1998; Manwaring 1968; Vines 1965). Additionally, this research operates under the assumption that the mechanisms impacting the state supreme courts are homogenous across states. In this paper, we directly confront the disjoint between qualitative and quantitative work on the sources of judicial impact courts by taking advantage of a ?middle-N? strategy. Specifically, we will use the logic of diversity-oriented research and qualitative comparative analysis as a way of analyzing the relationship between state institutional factors, legal characteristics of Supreme Court decisions, political characteristics of the state and the Supreme Court that influence the decisions of state supreme courts. In this paper, we examine twenty-five different state supreme court cases that cite Illinois v. Gates. [ABSTRACT FROM AUTHOR]

This paper is part of a larger project considering the impact that the doctrine of state sovereign immunity has for all involved, both states and those who are denied relief. What happens when courts no longer provide an avenue for relief against the government? In this paper, I explore the implications of sovereign immunity by examining the consequences of six recent Supreme Court cases. The cases involve issues ranging from gambling to disabilities law and provide a sense of the varying types of responses. I find that when sovereign immunity is invoked in cases against groups or individuals with resources and political capital, the plaintiffs resort to alternate political means to achieve their ends, often at the cost of the states. Sovereign immunity is an effective defense for states only against those who lack resources or political capital- precisely those groups most in need of access to the courts. [ABSTRACT FROM AUTHOR]

This paper looks at the causal effects of institutions, contextual environments, case characteristics, and court characteristics on coalition behavior in death penalty cases in the state supreme courts. The central premise of this research paper is judges make strategic decisions concerning the need to join majority opinions. In addition, institutional characteristics strongly condition these effects. Further argued is that judges are constrained within state environments compared to the federal court as they lack agenda control relevant to death penalty cases. Since each state supreme court is the court of last resort, judges lack the ability to limit or deny certiorari to death penalty cases which makes these cases unique. [ABSTRACT FROM AUTHOR]

The Supreme Court’s finding in Cohen v. Cowles Media Co. in 1991 that tort actions under generally applicable laws raise no First Amendment issues when used to recover damages for the press’s newsgathering tactics has created confusion in the lower courts and increased liability for aggressive newsgathering. Liability has been found to attach to the media even when stories served the public interest by uncovering corporate wrongdoing. This paper argues that the press should vigorously challenge the assumptions behind Cohen that the press has no more First Amendment rights than the general public. The press also should force the courts to confront the inconsistencies created by broad First Amendment protection for expression but little or no protection for information gathering. The paper also argues that another generally applicable law - the "tester’s privilege" - may hold hope as an effective defense against tort actions over undercover newsgathering techniques. [ABSTRACT FROM AUTHOR]

In this paper, I examine how we should perceive the Double Nexus Test from Flast v. Cohen (1968). Is it a rigid test that must be met for federal taxpayers to have standing in federal courts, or is it merely a loose set of guidelines? [ABSTRACT FROM AUTHOR]

The growing complexity of federal courts’ dockets and continuing political controversy surrounding tort litigation have highlighted the importance of trial judges’ treatment of scientific expert testimony. While federal trial judges have been empowered for over a century to determine the conditions under which certain kinds of evidence would be deemed admissible, the United States Supreme Court’s ruling in Daubert v. Merrell Dow Pharmaceuticals (1993) refined and redefined the trial judge’s responsibility to determine whether expert scientific evidence is suitable for presentation to a jury. In Daubert, the Supreme Court reaffirmed the trial judge’s role as a gatekeeper responsible for scrutinizing such evidence, and it specified certain guidelines that would inform judges’ decisions about admissibility. These guidelines supplanted the previous rule that admissibility decisions would hinge on whether the scientific technique underpinning an expert’s testimony was "generally accepted" as reliable in the relevant scientific community (the Frye test). Daubert was influential in several ways. It sparked a contrast between the judicial gatekeeping function with regard to scientific expert testimony, and the general preference of the Federal Rules of Evidence--Rule 702 in particular--to admit potentially relevant evidence. It also increased the judge’s role, at the expense of the jury’s, in determining admissibility. Furthermore, the expanded gatekeeping role set forth in Daubert placed additional demands on trial judges, who as a group lack specialized expertise concerning the scientific component of the disputes being adjudicated. What has been less clear is whether Daubert has made trial judges less willing to admit scientific expert testimony. Daubert stressed the need for judges to make independent assessments of the quality of the expert’s scientific evidence, and some observers (see, e.g., Faigman et al. 2000) have argued that judges subsequently defer to experts less than they did when the Frye standard of scientific consensus determined admissibility. At the same time, however, Daubert’s mandate might open the courthouse doors to theories and methodologies that are too new or too specialized to have been peer-reviewed or otherwise subjected to the scientific community’s scrutiny (Fenner 1996). As such, Daubert could have a liberalizing effect. This paper will determine what effect, if any, Daubert has had on federal trial judges’ willingness to admit scientific expert testimony. To test the expectation that Daubert has had some effect, I will perform a logit analysis of federal district judges’ admissibility rulings in tort cases following Daubert and preceding Daubert by ten years. The analysis will control for judges’ ideology (measured by the party of the appointing president), litigant characteristics, and, to determine whether strategic considerations have affected trial judges’ decision making, likelihood of reversal by an appellate panel (measured by the probability that a randomly selected three-judge panel will have a majority sharing the trial judge’s partisan affiliation). This design enables me to isolate any effects produced by the change in legal doctrine in Daubert. [ABSTRACT FROM AUTHOR]

This paper seeks to examine state court responses to U.S. Supreme Court remands. I look at cases that have been successfully appealed to the Supreme Court to see if the winning party prevails at the state court on remand. If they do win, I label this as deferential behavior by the state court. When a case is remanded from the U.S. Supreme Court, the state courts do not have to defer. Instead, they can avoid doing so in a number of ways, including denying that the points raised by the Court affect their decision and invoking their state constitution. I test a number of hypotheses generated by four theories of judicial behavior (simple legal, simple attitudinal, persuasion and strategic) that predict different effects of the strength of the Supreme Court mandate on the state court response. I operationalize the strength of the mandate using the number of justices joining the majority opinion and the number and type of separate opinions written in the case. I control for the form of the remand order, the level of the state court, whether the case is before or after Michigan v. Long, whether the case concerns an economic issue, whether the Court's ruing is per curiam and whether the Supreme Court opinion is more liberal than the original state court decision. I test these hypotheses on all of the cases successfully appealed from the state courts to the Supreme Court from the 1970 to 2000 terms with published state court responses. If the strength of mandate does indeed affect the way in which state courts treat remands from the Court, then it could mean that individual justices have an important role to play in determining whether or not state courts follow the U.S. Supreme Court. I find that there is evidence to support the importance of mandate strength effects, although the nature of the effect is itself surprising. [ABSTRACT FROM AUTHOR]

For much of the late 19th and 20th Centuries, race and racism have been a focus of Supreme Court decisions. Who is black? Who is white? What rights do citizens of color have in the United States? For answers to these questions, we may look to the United States Supreme Court in order to demonstrate how our society will provide legal stature to various racial and ethnic groups. What is the purpose of the US Constitution, however? Is it, itself, a document promoting white supremacy? If so, can the Supreme Court ever view anti-racism as a long-reaching goal in the United States? This paper suggests that the US Constitution is a white supremacist document and as such its interpretation will forever value white supremacy. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

This paper examines whether U.S. courts should recognize and enforce foreign cyberlaw judgments under the principles of comity without violating the First Amendment freedom of expression guarantees. The Yahoo! case capsulized how far a sovereign nation is willing to go in regulating Internet content by punishing the originating source of the content. It concerns not only the clash between France and the U.S. in their socio-cultural and political values but also the fast-developing Internet technology's role in helping governments to assert a greater role in control of the government-free Internet. Yahoo!'s complaint centered on the unconstitutionality of the French court orders of May and November 2000.

With state governments taking action on numerous issues ranging from health care to climate change in recent years, debates about how American federalism meshes with the regulatory state have again become prominent. Under the banner of "dynamic federalism" and similar terms, several scholars have recently argued that contemporary American federalism promotes the values of dialogue and pluralism by granting state governments overlapping regulatory authority with the federal government. Despite the many theoretical claims in these recent works, however, it is not entirely clear how "dynamic federalism" works in practice and whether it promotes the values its proponents claim. The recent activities of state attorneys general ("SAGs") provide an excellent lens through which to explore the issues raised by this new literature. While still poorly understood, SAGs have had increasingly significant influence on national regulatory policy through the use of coordinated multistate litigation. This paper explores this new phenomenon in two ways. First, it presents an analysis of an original dataset of multistate SAG litigation in four key policy areas, covering 1980 to the present. Second, it addresses how multistate SAG litigation fits into the broader picture of American intergovernmental relations. While many multistate cases are brought in conjunction with the federal government, the aims of these multistate suits often conflict with the federal government's regulatory enforcement posture. I suggest that while some of the claimed benefits of dynamic federalism are reflected in multistate SAG litigation, the use of multistate litigation to influence national policy has several problematic features as well. [ABSTRACT FROM AUTHOR]

In recent decades the Supreme Court has developed a number of exceptions to the warrant requirement of the Fourth Amendment, particularly as it has been applied to vehicles. One of these is the "inventory exception," which first arose in the case of Sourth Dakota v Opperman. This paper will examine subsequent decsions of federal courts (both the Supreme Court and lower courts) in order to determine how this doctrine has evolved. [ABSTRACT FROM AUTHOR]

Plurality opinions do "more to confuse the current state of the law than to clarify it" (Davis and Reynolds 1974). The absence of a simple majority creates precedential uncertainty, because lower courts not only have to find the rationale of each opinion, but must also decide which opinion's rationale governs.In the last several decades, different approaches to the interpretation of plurality opinions have developed. One set, the inclusive models, recognizes both a binding legal rule and a binding outcome in every case. A second set, the exclusive models, limits the precedential consequences of a plurality decision to discrete categories of cases (Kimura 1992). Although the Supreme Court appeared to establish guidelines for interpreting the precedential value of plurality opinions in Marks v. United States, the Court later conceded that the Marks test has limited applicability, and in some cases the Court itself has not followed that test. In this paper, I examine how lower courts treat Supreme Court plurality decisions. Specifically, do they simply count the number of justices supporting each concurring opinion, and follow the opinion with the most votes? Do they follow the most "persuasive" opinion? Do they follow the opinion that is based on the narrowest grounds? By answering these questions, I will assess what impact plurality opinions actually have? ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Can relatively disadvantaged groups use constitutional litigation to win rights to greater equality? This paper investigates the question with a detailed examination of U.S. litigation for same-sex marriage. Over the past dozen or so years proponents of same-sex marriage in the U.S. have turned to litigation as a strategy to advance their cause. In this paper I examine the results of this choice. I examine how litigators fared in court and whether any victories produced the change they hoped for. Further, I investigate indirect effects of litigation including whether and how litigation affected legislative action, mobilization (pro and con), media coverage, and public opinion. I conclude by asking what explains the results and what it tells us about courts, social movements, and change. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]

Bartels and Johnston have recently presented evidence suggesting that the legitimacy of the Supreme Court is grounded in the ideological preferences and perceptions of the American people. In addition, they offer experimental data purporting to show that dissatisfaction with a single Court decision substantially diminishes the institution's legitimacy. These findings strongly break with earlier research on the Court's institutional support, as the authors recognize. The theoretical implications of their findings are profound. If the authors are correct that legitimacy is strongly dependent upon satisfying the policy preferences and ideological predilections of the American people, the essence of legitimacy is fundamentally altered. Consequently, we re-investigate the relationships among ideology, performance satisfaction, and Court legitimacy, unearthing empirical findings that diverge markedly from theirs. We conclude with some thoughts about how the Court's "countermajoritarian dilemma" can be reconceptualized and recalculated, once more drawing conclusions sharply at odds with those of Bartels and Johnston. [ABSTRACT FROM AUTHOR]

Although scholars have long studied why presidents "go public" on a host of topics, no research has specifically investigated presidential statements about Supreme Court cases. To examine this significant issue, we have cataloged the number of times presidents have commented publicly on Supreme Court cases from the Eisenhower to Obama administrations. We posit that presidents discuss judicial decisions primarily to assist in their pursuit of policy and reelection goals, and to enhance their historical legacy. Our empirical findings lend support to our expectations, revealing that reelection years, media attention to the Court's decisions, and partisanship shape the volume of monthly presidential remarks on Supreme Court cases. Taken as a whole, this research contributes to our understanding of presidential speechmaking, executive-judicial branch interactions, and the methods presidents use to implement Supreme Court decisions. [ABSTRACT FROM AUTHOR]

In this paper I quantitatively test the impact of the executive, judicial ideology, Supreme Court precedent and other forces in human rights cases in U.S. courts. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]

Using the shifting meaning of the Guarantee Clause, this paper illustrates how the judiciary subtly redefines the meaning of the Constitution to meet the demands of a dynamic society allowing shifts to occur gradually in the governing structure. ..PAT.-Conference Proceeding [ABSTRACT FROM AUTHOR]

The article looks at developments in immigration appeals that led to the demise of collective decision-making. The historic practice of collective review has been abandoned by the U.S. Board of Immigration Appeals in recent years. In 65 years of its history, the board consisted of five members who participated in case decision making. On September 25, 2002, a new rule authorized affirmances without opinions and even permitted single members to issue brief orders and allowed reversals by single board members.

The article assesses the American propensity to litigate. It describes some non-institutional explanations of litigiousness, which are typically either historical or legal in nature. It illustrates how the fragmentation of political power enables the supply of judicial means of conflict resolution. It highlights court filings and political data to test the implications arising from this analysis.

The article investigates the comparative behavior of federal circuit and district court judges in a politically-charged area, paying particular attention to the potential influence of U.S. Supreme Court decisional patterns as well as the types of politically-oriented litigants. The research presented finds that overall models of lower court decisions mask differences between levels: namely, that circuit judges pay more attention to Supreme Court signals and district judges pay more attention to favorable and adverse litigants.

Each year thousands of citizens are summoned to serve as jurors in court cases across the United States. Among the jurors, students from all disciplines will possibly be selected to serve. Empirical research has shown that eyewitness identification is not always accurate and although studies continue to support this, students continue to believe that eyewitness identification is reliable. Using a pedagogical exercise, the following paper aims to demonstrate the inaccuracy of eyewitness among students. A convenience sample of 279 students completed the survey. In addition, focus groups were conducted with 27 students to attain information of the student's perception of eyewitness testimony. Pre- and post-test assessment using qualitative and quantitative data were collected and analyzed using independent t tests to evaluate the impact of the exercise on student learning. Results offer and alternative to traditional modes of teaching, and, secondarily, affirm previous research on the unreliable nature of eyewitness identification. Additionally, findings provided students with an eye-opener. Student's accounts will be mentioned as they point out how this exercise gave them an understanding of the inaccuracy of eyewitness testimony. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]