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The article examines how states talk about the International Criminal Court (ICC, or the Court) through the lens of Albert Hirschman’s exit, voice and loyalty framework. Based on a content analysis... more...

This article reviews the need to provide greater human rights protections through Indonesia’s Human Rights Court mechanism. Despite the Court gaining momentum with the emergence of greater democratic freedoms, there is still quite a long way to go before the Court can function in a transparent and accountable way. The opportunity to do this was missed when political interests were put ahead of human rights protections when the legislation creating the Court paid no attention to the investigating and procedural complexities of categories of the crimes falling within the jurisdiction of the Court. Moreover, the lack of protection for victims and witnesses has had an adverse impact on prosecutions. This article recommends that some legislative reform is desirable but legislative reform alone will not bring about the equally important cultural change required to achieve this objective. This transformation can only be achieved by ensuring that all the relevant actors operating within the system are held accountable and required to operate in a professional manner. more...

I argue the Supreme Court learns to craft legal rules by relying on the Courts of Appeals as laboratories of law, observing their decisions and reviewing those that best inform legal development. I develop a model that shows how the Supreme Court leverages multiple Courts of Appeals decisions to identify which will be most informative to review, and what decision to make upon review. Because an unbiased judge only makes an extreme decision when there is an imbalance in the parties’ evidence, the Supreme Court is able to draw inferences from cases it chooses not to review. The results shed light on how hierarchy eases the inherent difficulty and uncertainty of crafting law and on how the Supreme Court learns to create doctrine. more...

In many judgments, the European Court of Human Rights (Court) lists relevant international materials and sometimes uses these documents when determining whether the European Convention on Human Rights has been violated. These materials are often standard-setting documents that originate in the Council of Europe, the Court’s organisational framework. This article analyses the Court’s practice of using such documents, based on a sample of 795 judgments. The analysis serves to provide an answer to the questions of how and why the Court refers to and relies on these documents. More specifically, the article describes the number of judgments and the importance of the judgments in which the Court cites a CoE document, as well as the type of organs and the different documents cited. The analysis continues with a description of the part of the Court’s judgments in which its determination of the question of compliance with the standards in the CoE documents appears and also considers the purposes for which the Court seems to use the materials. Lastly, insight is provided into the relevance of the CoE documents to the Court’s reasoning and explanations are given as to why the Court does (not) follow the standards formulated in a document. more...

The number of constitutional courts and supreme courts with constitutional review rights has strongly increased with the third wave of democratisation across the world as an important element of the new constitutionalism. These courts play an important role in day-to-day politics as they can nullify acts of parliament and thus prevent or reverse a change in the status quo. In macro-concepts of comparative politics, their role is unclear. Either they are integrated as counter-majoritarian institutional features of a political system or they are entirely ignored: some authors do not discuss their potential impact at all, while others dismiss them because they believe their preferences as veto players are entirely absorbed by other actors in the political system. However, we know little about the conditions and variables that determine them as being counter-majoritarian or veto players. This article employs the concept of Tsebelis’ veto player theory to analyse the question. It focuses on the spatial configuration of veto players in the legislative process and then adds the court as an additional player to find out if it is absorbed in the pareto-efficient set of the existing players or not. A court which is absorbed by other veto players should not in theory veto new legislation. It is argued in this article that courts are conditional veto players. Their veto is dependent on three variables: the ideological composition of the court; the pattern of government control; and the legislative procedures. To empirically support the analysis, data from the United States, France and Germany from 1974 to 2009 is used. This case selection increases variance with regard to system types and court types. The main finding is that courts are not always absorbed as veto players: during the period of analysis, absorption varies between 11 and 71 per cent in the three systems. Furthermore, the pattern of absorption is specific in each country due to government control, court majority and legislative procedure. Therefore, it can be concluded that they are conditional veto players. The findings have at least two implications. First, constitutional courts and supreme courts with judicial review rights should be systematically included in veto player analysis of political systems and not left aside. Any concept ignoring such courts may lead to invalid results, and any concept that counts such courts merely as an institutional feature may lead to distorted results that over- or under-estimate their impact. Second, the findings also have implications for the study of judicial politics. The main bulk of literature in this area is concerned with auto-limitation, the so-called ‘self-restraint’ of the government to avoid defeat at the court. This auto-limitation, however, should only occur if a court is not absorbed. However, vetoes observed when the court is absorbed might be explained by strategic behaviour among judges engaging in selective defection. more...

The article considers the different options available to international tribunals, especially the International Court of Justice, when facing cases that raise scientific and technical issues. While international tribunals can sometimes leave it to the parties to seek an agreement on such issues or resort to legal reasoning to avoid making technical and scientific assessments, other methods may need to be adopted. The Court can rely on the expertise provided by the parties, informally consult “invisible” experts – as long as their views are not likely to affect the content of the decision – or proceed to the appointment of experts or assessors, the latter participating in the deliberations without the right to vote. Due process implies that the parties should be able to comment on the views expressed by Court-appointed experts. This requirement may create difficulties for the Court in reaching a decision on scientific or technical issues. more...

Based on direct observation inside and outside the courts and on interviews with one hundred residents and two hundred previous offenders, this article examines the performance of procedural justice in a community court in the Red Hook neighborhood in Brooklyn, New York. Results show that the community court is widely praised compared to the downtown Brooklyn courts and in sharp contrast to police enforcement. The content of this praise suggests that the community court cultivates legitimacy by treating people respectfully and by helping to mitigate problems with powerful institutions such as the police and the New York City Housing Authority. In light of these results, this article considers intertwined debates about procedural justice and how these ideas articulate with legal anthropologists’ understanding of hegemony. more...

The literature on the U.S. Supreme Court has paid substantial attention to the perceived legitimacy of the Court’s decisions. However, much less attention has been paid to the perceived legitimacy of the reasons the Court provides for its opinions. We design two experiments to understand how the public perceives opinion content. Unlike prior studies, we take it as a given that the Court uses legal reasons in its decisions. This offers us a baseline by which to compare departures from these legal reasons. We find that extralegal reasons, when paired with legal reasons, do nothing to harm the legitimacy of the Court. Furthermore, we find that even with a lack of legal reasons, the use of extralegal reasons does not harm the legitimacy of the Court, even among those who find that these reasons are inappropriate for the Court to use. more...

The presence of women justices in the highest constitutional courts varies significantly across countries, yet there is little existing research that engages this substantial cross-national variation. Using an original data set of women’s representation in the constitutional courts in fifty democracies combined with qualitative case studies, we assess the effect of the selection mechanism on this variation and find that the existence of a “sheltered” versus “exposed” selection mechanism is a critical determinant of women’s presence. That is, when the selectors are sheltered from electoral accountability, they are less likely to select women as judges because they do not benefit from credit claiming. When the selectors are exposed and can claim credit, however, the unique traits and visibility of the highest court generate an incentive to appoint women. more...

The increasing religious diversity in western Europe poses challenges for courts, including the European Court of Human Rights (‘the Court’), whose jurisprudence on the right to freedom of religion has been widely criticized for being too restrictive, unprotective and non-inclusive. This criticism mainly refers to the substantive aspect of the Court’s case law. Indeed when dealing with the question how the religious diversity can be best dealt with from a human rights perspective, the first focus of the Court should relate to the substantive inclusion of this diversity. However, in a diversity context it is inherently impossible to substantively accommodate all religious claims and needs. Building on the social psychology notion of procedural fairness, this article will show how, despite the impossibility of always providing applicants with favourable in- clusive outcomes in their case, the Court can, and should always, ensure that it communicates inclusion at a procedural level. It does so through an in-depth analysis of the Court’s Article 9 case law delivered from 1999 until today. more...

IntroductionOn a brilliant morning in Port of Spain, Trinidad in November 2013, Serena, the sharply dressed and well-spoken Customer Service representative at the Caribbean Court of Justice (hereafter "CCJ" or "the Court"), guided a group of Trinidadian attorneys through a courthouse tour.1I had accompanied Serena several times before on tours through the Court and appreciated her natural, efficient, and informative narration. She could move swiftly through the building pointing out highlights, details, facts, and little-known facts, educating her audience throughout and mixing in enough audienceappropriate "Trini flavor"-dropping in bits of local creole, drawing on shared Carnival knowledge, or mentioning familiar names and places-to keep the tour light, enjoyable, and engaging.As usual, Serena's tour began in the Registry of the Court, and, as usual, after several opening remarks and a brief introduction to the workings of this office, she directed the attorneys' attention to a mini-museum located within the Registry lobby. She explained: "Now, a lot of people think that the idea of setting up a regional final court of appeal was a recent idea,"But we have a letter ... from as far back as 1901. It was written in the Jamaican Gleaner in the "Letters to the Editor" suggesting that the Privy Council, because of the distance from the colonies, they would have been too far to really dispense true justice. And the author suggested that we set up our own regional final court of appeal.As the attorneys absorbed this information, she continued:In 1970, at a conference of heads of government, the idea for a regional final court of appeal was put forward. However, it was not until 1989 that the heads of government agreed to establish the court. In 1999, Trinidad & Tobago announced that we would house the court here. And the heads of government approved the Agreement Establishing the Court. In 2001 the agreement was signed.With an indication of her hand, Serena directed her audience's gaze to a series of photographs displayed on the walls. She explained,On the walls we basically have a pictorial depicting the establishment of the court from the very inception of the signing of the Treaty of Chaguaramas. What I find interesting about this is that even as far back as the public consultations you see people who are involved in the court up until now....Serena pointed out a couple of familiar faces in the photographs, including the current President of the CCJ and a founding architect of the CCJ, and then allowed the visitors a minute or so to look at the pictures.These photos loosely followed the narrative Serena had presented. Though the 1901 newspaper article was not displayed (but it is available on the CCJ website (see Caribbean Court of Justice 2015), as Serena usually noted), three black-and-white photos under the label "The Beginning" helped bolster Serena's claim to the CCJ's deep history. Two of these photos, as the labels indicated, depicted the "Signing of the Treaty of Chaguaramas," an event that took place in 1973 and created the Caribbean Community (CARICOM), something I discuss in more detail below. The third photo showed the "Signing of the Agreement Establishing the Caribbean Court of Justice," which took place, as Serena had just told the tour group, in 2001. Given its recent date, it was unclear why that particular photo was black-and-white, but its black-and-whiteness did seem to impart to it an air of antiquity.What is perplexing about this presentation of the Court's establishment, through Serena's words and the photos on the wall, was its emphasis on the Court's agedness. As all of these attorneys likely knew, this Court was not at all old. In fact, most tours, such as this one, were prompted by the newness and novelty of, and, thus, the lack of familiarity with, the Court. It is a regional tribunal intended to serve a large swath of independent (mostly) English-speaking Caribbean states that was signed into being in 2001 through the execution of two documents: the Revised Treaty of Chaguaramas Establishing the Caribbean Community Including the CARICOM Single Market and Economy (commonly abbreviated to the Revised Treaty), which called for the creation of the Court, and the subsequent Agreement Establishing the Caribbean Court of Justice, which officially set forth the terms for its existence. … more...

On March 7, 2014 an African man dressed in a well-tailored, dark grey suit entered the back of a large, unadorned room and sat down. The man seemed overdressed when compared to the more than two do... more...

The International Criminal Court was established to tackle impunity for international crimes. Its jurisdiction is premised on states being primarily responsible for investigating and prosecuting those who commit international crimes, with the Court only acting as a last resort. The principle of complementarity has arisen to explain such an arrangement. However, in practice in situational countries before the Court there has not been a perfect implementation of complementarity. Far from it, states have struggled to investigate and prosecute all those responsible, competing with other transitional justice needs and regional politics. This is apparent in Uganda, as the first situation referred to the International Criminal Court (ICC) in 2003. It has been embroiled in controversy of peace versus justice, yet only this year saw the transfer of the first indictee, Dominic Ongwen, before the Court. In the interim the Uganda government has become a critic of the ICC in regional discussions of the Court targeting Africans, despite inviting the Court to investigate crimes in its own country. This article charts the effects of complementarity in Uganda examining the development of domestic legislation, the creation of the International Crimes Division and the first international crimes trial of Thomas Kwoyelo. The emphasis of this article is on a more victim-orientated perspective, as the ICC is often extolled for its ‘innovative’ victim provisions of participation, protection and reparation. Moreover, in ending impunity, victim provisions are seen as a way to operationalize the independence and effectiveness of such domestic processes, in the face of political settlements and governmental discretion. more...

On 27 June 2014 the African Union (au) Assembly adopted a protocol entitled ‘Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights’. This Protocol contains an annex entitled ‘Statute of the African Court of Justice and Human and Peoples’ Rights’. The Protocol and the Statute annexed to it provide for the establishment of a regional court in Africa to be known as the ‘African Court of Justice and Human and Peoples’ Rights’ (African Court). This Court will, among others, exercise criminal jurisdiction over a wide range of international crimes involving individual criminal responsibility and corporate criminal liability over legal persons (with the exception of States), which goes beyond any other international court or hybrid tribunal. This article considers reasons for establishing a regional court in Africa with criminal jurisdiction and examines the likely effectiveness of the African Court focussing on the wide jurisdiction conferred on the Court; the impact of immunity from criminal prosecution granted to serving au heads of State and other undefined ‘senior State officials’; and the need to strengthen national criminal jurisdictions to enable them to prosecute international crimes in Africa. more...

Outside South Africa, the South African Constitutional Court is one of the most esteemed high courts in the world. Inside the country, however, empirical evidence suggests that the Court has been unable to build much of a store of popular legitimacy. Some scholars have suggested that the shortfall of legitimacy is of little consequence because the Court has been able to maintain its independence, largely through the largess of the government. My purpose here is to reconsider both the empirical evidence on the Court’s support and the theoretical position that judicial independence can be effectively guaranteed by the government. I find that confidence in the Constitutional Court has indeed grown since its first decade of operation. However, confidence is not the same thing as legitimacy, even if sustained confidence may evolve into institutional legitimacy, so my evidence cannot be taken to suggest that the Court has developed a “reservoir of goodwill” among the South African people. I conclude by ... more...

Political pundits and scholars alike have recently noticed that public judgments of how well the U.S. Supreme Court is doing its job have plummeted. Yet, the meaning of this drop for the larger legitimacy of the Court is not as clear as the poll data themselves. Some believe that dissatisfaction with the Court’s rulings threatens the institution’s legitimacy. Conventional Legitimacy Theory, on the other hand, posits a “reservoir of goodwill” through which the translation of dissatisfaction into lowered legitimacy is blocked. Positivity Theory, with its focus on the legitimizing role of the symbols of judicial authority, provides at least a partial explanation of how legitimacy is maintained in the face of rising disappointment in the Court’s rulings. Here, we focus specifically on the relationship between specific and diffuse support and the role judicial symbols play in undermining that connection, concluding that the Court’s legitimacy is more secure than many imagine. hose studying public opinion toward the U.S. Supreme Court have of late noted that the legitimacy of the institution may be on the retreat. Spurred by highly salient and unpopular Court decisions such as Kelo, Citizens United, and the Obamacare ruling, some have speculated that the institution’s “reservoir of goodwill” is facing (or beginning to face) a Texassized drought. This view has been forcefully stated in the scholarly literature (e.g., Bartels and Johnston 2013), and has even made its way into the New York Times (Liptak 2011) and into the research agenda of the Pew Research Center for the People and the Press (2013). The question of the stability of the Court’s legitimacy is a matter of practical as well as theoretical import. A fragile Court is likely to act differently from a secure Court; or, more precisely, justices with heightened concerns about institutional legitimacy might even shape their votes in highly salient cases so as to protect their institution.1 More generally, if an elemental function of the Supreme Court is to check majority opinion when it runs amok, then the so-called countermajoritarian dilemma is quite a dilemma indeed. Without a reservoir of goodwill, the Court is even more vulnerable than indicated by the many formal weaknesses of the institution. That support for the Supreme Court would be so volatile runs counter to the conventional wisdom on the sources of the Court’s legitimacy. Court attitudes are typically thought of as 1 Crawford (2012) reports that Chief Justice Roberts acted strategically to protect the Court’s legitimacy during the opinion-writing process for National Federation of Independent Business v. Sebelius, changing his vote from one to strike down the Affordable Care Act to one preserving the legislation’s constitutionality. T more...

At a joint press conference in April of 2012, a reporter asked President Barack Obama to speculate on how the Supreme Court might rule concerning the Patient Protection and Affordable Care Act. Ultimately, the president said, "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress." (1) Whether or not this statement shaped the Court's decision in June to uphold the Act; the president's rhetoric fueled a debate in the popular media about the appropriateness of the president attempting to influence the Court by going public in this manner (e.g., Editorial Board 2012; Hartman 2012). This is so even though the president mentioned National Federation of Independent Business v. Sebelius (2012) on only two occasions prior to the Court's decision. The bulk of the president s attention to this case occurred after the decision, in dozens of stump speeches delivered during the 2012 presidential election campaign. These remarks are not the only high-profile instance of presidents targeting Supreme Court cases in their public rhetoric. President Obama famously raised concerns about Citizens United v. Federal Election Commission (2010) during his 2010 State of the Union Address and called on Congress to counteract Shelby County v. Holder (2013), the Court's decision to invalidate the preclearance provision of the Voting Rights Act of 1965. George W. Bush publicized his opposition to affirmative action prior to the Court's decisions in Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003). (2) Even 50 years ago, President Johnson praised the Court's decisions in Brown v. Board of Education (1954) and Shelley v. Kraemer (1948) as he encouraged Congress to pass more expansive civil rights legislation. (3) Despite these examples of presidential speeches referencing Supreme Court cases, we lack a firm understanding of when, how frequently, and why presidents mention Supreme Court cases in their public statements. To date, most going public research that examines the interrelationships between the executive and judicial branches of government focuses on judicial nominations, not Supreme Court cases (Cameron and Park 2011; Holmes 2007, 2008; Johnson and Roberts 2004; Krutz, Fleisher, and Bond 1998; Maltese 1995a). In addition, only limited research shows that presidents increase their public attention to policy issues in response to Supreme Court cases on those issues (Flemming, Wood, and Bohte 1999; see Ura 2014). Moreover, despite the firestorm surrounding President Obama's comments delivered before the Court's ruling in the Sebelius case, we know next to nothing about how frequently presidents speak on pending decisions or whether they focus their public attention on decided cases. We remedy this state of affairs by investigating the frequency of both written and spoken comments on historic and recently decided Supreme Court decisions. To do this, we have cataloged the number of times per month that presidents mention Supreme Court cases in public comments from the Eisenhower to Obama administrations (1953-2012). We use these data to explore two significant topics. First, we analyze the timing of presidential references to Supreme Court cases to determine whether presidents mention cases pending before the Court or discuss cases after they have been decided. Because we find that presidents speak almost exclusively about Supreme Court cases after they have been decided, our primary research question asks: what explains the frequency of the president's monthly public commentary on decided Supreme Court cases? To answer this question, we build upon research that explains the number of presidential speeches over time (Eshbaugh-Soha 2010; Hager and Sullivan 1994; Kernell 1997; Powell 1999; Ragsdale 1984), which concludes, to varying degrees, that presidents speak publicly to bolster their reelection, historical legacies, and policy goals. … more...

The article explores Russians’ satisfaction with their experiences in court and with the legal system more generally. The analysis draws on a nationally representative survey of Russians, fielded by the Levada Center in 2010. The results show that most court veterans believe that the decision in their case was just, and that the judge treated them well. But these positive feelings do not extend beyond their case. Russians who have no court experience tend to have more favorable views about the legal system than do court veterans. These findings serve to remind us of the difficulty of building confidence in the legal system in post-Soviet Russia. more...

Do legal elites-lawyers admitted to federal appellate bars-perceive the Supreme Court as a "political" institution? Legal elites differentiate themselves from the mass public in the amount and sources of information about the Court. They also hold near-universal perceptions of Court legitimacy, a result we use to derive competing theoretical expectations regarding the impact of ideological disagreement on various Court perceptions. Survey data show that many legal elites perceive the Court as political in its decision making, while a minority perceive the Court as activist and influenced by external political forces. Ideological disagreement with the Court's outputs significantly elevates political perceptions of decision making, while it exhibits a null and moderate impact on perceptions of activism and external political influence, respectively. To justify negative affect derived from ideological disagreement, elites highlight the political aspects of the Court's decision making rather than engage in "global delegitimization" of the institution itself.While numerous studies exist about how the mass public perceives the U.S. Supreme Court, little is known about how elite lawyers with specialized legal expertise and an acute understanding of the U.S. Supreme Court perceive and assess the Court. Among these "legal elites," is the Court perceived as a political and ideologically driven institution, as legalistic and capable of objectively producing legal outputs, or something in between? While Congress and the Presidency are often seen by members of the mass public as divisive, ideologically polarizing, and uncivil, conventional scholarly wisdom suggests that the Supreme Court is seen as relatively more objective, legalistic, and above the political fray. Since many Americans do not possess a thorough understanding of the Court's policymaking, they are less aware of the extent to which the Court can be political and ideological (e.g., Epstein and Knight 1998; Maltzman et al. 2000; Segal and Spaeth 2002).1 Given that legal elites-here, lawyers admitted to federal appellate bars-do not suffer from similar informational disadvantages, it is interesting in and of itself to analyze where they fall along the "law versus politics" spectrum pertaining to the Court. Legal elites are socialized to respect legal principles and their application, but through professional practice and elevated attention to what the Court is doing, legal elites experience and observe the political nature of judicial decision making.Moreover, we confront the following empirical foundation: the legal elites studied in this article almost universally perceive the Court as legitimate. Our theoretical innovation is to develop competing models that could be the result of this characteristic. On one hand, Gibson and Caldeira's (2009a, 2009b) positivity theory implies that strong pre-existing legitimacy orientations may induce elites to hold near-universal apolitical perceptions of the Court, which should hold regardless of ideological disagreement with the Court's policymaking. On the other hand, legitimacy and perceptions of the Court's decision making and role in government may be more separable for legal elites than for average citizens. A motivated reasoning perspective (e.g., Kunda 1990; Taber and Lodge 2006) implies that the more legal elites disagree with the ideological direction of the Court's policymaking, the more "political" they will perceive the Court-including how it makes decisions and its role in American politics. Perceptions of the Court's decision making and role, but not legitimacy orientations, are an outlet for disagreement with Court policymaking. We test these competing models by analyzing survey data from the 2005 Annenberg Supreme Court study, which is a nationally representative survey of lawyers admitted to the U.S. Supreme Court and Courts of Appeals bars.Understanding how legal elites perceive the Court is valuable for several reasons and possesses important sociolegal implications. … more...

The writing of a majority opinion is the most important task for judges and justices on collegial courts because they must be able to explain and justify the court’s decision in a way that will be understood by other legal and political actors. For state supreme court justices, we argue that the opinion-writing process is driven by the information the opinion author has as well as internal institutional constraints. In this article, we examine the length of opinions produced by state supreme courts to determine whether there are differences in the opinion-writing process between elected and appointed courts. Using an original dataset comprising all education cases decided by state supreme courts from 1995 to 2005, we find, consistent with our expectations, that elected justices appear to be more concerned with audiences external to the court in writing opinions, whereas appointed justices are more likely to respond to internal constraints and conditions. more...

Did the Supreme Court decision in the Affordable Care Act case change public opinion about health care reform? Utilizing a multi-wave panel design with observations collected just hours before and after the Court’s decision, this study addresses macro-level questions concerning the Court’s effect on opinion about health care reform generally and the individual mandate specifically. Findings show that support for health care reform remained constant despite significant positive movement on the mandate. The panel design also allows for the analysis of micro-level change and the testing of hypotheses related to cognitive models, individual attributes, and assessments of the Court’s legitimacy. Despite some evidence of micro-level variation, the data ultimately point to a decision that induced a general, persistent, and relatively unconditional uptick in support for the provision the Court deemed constitutional more...

In federal systems the courts are accorded the important role of policing the boundaries of the constitutionally specified powers given to the legislature and the executive. The devolution statutes enacted by the UK parliament have created a semi-federal system, in which the courts increasingly have been called upon to adjudicate on whether sub-national legislative bodies have acted ultra vires. Following a comparative overview of the theory and practice of court adjudication in overseas systems of multi-level governance, the leading cases of the British Supreme Court and the House of Lords are considered. It is proposed that Britain—almost by default—has become a semi-federal court somewhat akin to the US Supreme Court and the German Bundesverfassungsgericht. more...

The 2012 challenge to the Affordable Care Act was an unusual opportunity for people to form or reassess opinions about the Supreme Court. We utilize panel data coupled with as-if random assignment to reports that Chief Justice Roberts's decision was politically motivated to investigate the microfoundations of the Court's legitimacy. Specifically, we test the effects of changes in individuals' ideological congruence with the Court and exposure to the nonlegalistic account of the decision. We find that both affect perceptions of the Court's legitimacy. Moreover, we show that these mechanisms interact in important ways and that prior beliefs that the Court is a legalistic institution magnify the effect of updating one's ideological proximity to the Court. While we demonstrate that individuals can and did update their views for multiple reasons, we also highlight constraints that allow for aggregate stability in spite of individual-level change. more...

Research on the legitimacy of the US Supreme Court has blossomed of late, with scholars investigating many different hypotheses derived from legitimacy theory. As the theory has been pushed, a number of new controversies have emerged. Here, we identify four such debates: (a) whether the Court's legitimacy rests on satisfaction with its performance, (b) whether support for the Supreme Court reflects the polarization of politics in the contemporary United States, (c) whether the Court's legitimacy requires belief in the “myth of legality”, and (d) whether judicial decisions can change public opinion. Our analysis of these issues generally concludes that the Supreme Court's legitimacy is reasonably secure, in part because individual rulings have little impact on support for the institution, in part because the Court has access to powerful and influential symbols of judicial authority, and in part because the current Supreme Court issues roughly equal numbers of conservative and liberal decisions. more...

Studies of Court-Congress relations assume that Congress overrides Court decisions based on legislative preferences, but no empirical evidence supports this claim. Our first goal is to show that Congress is more likely to pass override legislation the further ideologically removed a decision is from pivotal legislative actors. Second, we seek to determine whether Congress rationally anticipates Court rejection of override legislation, avoiding legislation when the current Court is likely to strike it down. Third, most studies argue that Congress only overrides statutory decisions. We contend that Congress has an incentive to override all Court decisions with which it disagrees, regardless of their legal basis. Using data on congressional overrides of Supreme Court decisions between 1946 and 1990, we show that Congress overrides Court decisions with which it ideologically disagrees, is not less likely to override when it anticipates that the Court will reject override legislation, and acts on preferences regardless of the legal basis of a decision. We therefore empirically substantiate a core part of separation-of-powers models of Court-Congress relations, as well as speak to the relative power of Congress and the Court on the ultimate content of policy.The separation of powers (SOP)-how the different branches of government collaborate in the making and implementing of public policy-represents a vital aspect of American politics. One SOP relationship garnering substantial attention concerns the interactions between the U.S. Congress and Supreme Court. Scholars have examined the dealings between these institutions in multiple ways, including the extent to which Congress influences Supreme Court decisions (e.g., Clark 2011; Gely and Spiller 1990; Hansford and Damore 2000; Harvey and Friedman 2009; Owens 2010; Sala and Spriggs 2004; Segal 1997; Spiller and Gely 1992), whether the Court constrains congressional decisionmaking (e.g., Martin 2001), and the circumstances under which Congress legislatively overrides Supreme Court decisions (e.g., Blackstone 2013; Eskridge 1991a; Hausegger and Baum 1999; Hettinger and Zorn 2005; Ignagni and Meernik 1994; Ignagni, Meernik, and King 1998). Collectively, the literature uncovers a rich and complex interdependency between these two important American political institutions.A core element of SOP studies is a spatial model of the policy process, in which political actors make decisions as a function of their preferences over the existing status quo and alternatives to it, as well as the preferences of other relevant politicians. Researchers thus assume that preferences over outcomes are a fundamental part of the policy-making process. Of particular interest to us, previous studies either (1) apply theoretical models that assume legislators respond to Court decisions based on their preferences over them (e.g., Gely and Spiller 1990; Segal 1997) or (2) explicitly hypothesize that ideological disagreement with Court decisions causes Congress to pass legislation overriding them (Eskridge 1991a, 1991b; Hettinger and Zorn 2005; Ignagni, Meernik, and King 1998; Staudt, Lindstadt, and O'Connor 2007). This perspective seems reasonable in light of the centrality of policy preferences in contemporary explanations of congressional decisionmaking (Aldrich and Rohde 2000; Cox and McCubbins 2005, 2007; Krehbiel 1991, 1998). Indeed, the congressional literature offers convincing empirical evidence that ideology plays a key role in explaining Members' votes on bills and the passage of legislation (e.g., Poole and Rosenthal 2007). Yet, the literature examining federal legislation overriding Court decisions uncovers no systematic evidence they result from Congress' preferences regarding them.To be fair, existing studies illustrate that preferences play a role in explaining some of Congress' interactions with the Court. One area in which policy preferences matter is in sponsorship (but not passage) of court-curbing bills, or bills aimed at limiting judicial power (Clark 2011; Curry 2007). … more...

Another example of the recent trend of departure from traditional criminal due process requirements in the ‘terrorism era’ is the increased use of ‘closed court’ hearings in relation to the introduction of evidence considered particularly sensitive with respect to national security. Typically, the person affected by the proceedings, and their chosen legal adviser, are excluded from such a hearing. This has many effects on the conduct of the trial as typically envisaged. For the purposes of this article, I will focus on two main effects: (a) the person does not get access to the evidence being led against them, and (b) their ability to cross-examine witnesses being used against them is removed. These developments contradict long-established and fundamental characteristics of proceedings in a criminal law trial in common law systems, such as the open court principle and the adversarial nature of proceedings. They also contradict the right to confront accusers, a right traceable to Roman times, and a feature of the British system for more than four centuries. They call into question the fairness of the proceeding. This article highlights the latest case law developments in key jurisdictions around the world before critically appraising trends evident in the recent jurisprudence. more...

The U.S. Supreme Court is traditionally thought to hold little influence over social or political change; however, recent evidence suggests the Court may wield significant power, especially with regard to criminal justice. Most studies evaluate judicial power by examining the effects of individual rulings on the implementation of specific policies, but this approach may overlook the broader impact of courts on society. Instead, I adopt an aggregate approach to test U.S. Supreme Court power. I find that aggregate conservative decision making by the Court is positively associated with long-term shifts in new admissions to U.S. federal prisons. These results suggest the Court possesses significant power to influence important social outcomes, at least in the context of the criminal justice system. more...

When the U.S. Supreme Court sits with an even number of justices participating, there is a risk that the Court will be deadlocked in a tied vote. While this outcome awards the individual respondent with a victory, it also preserves circuit splits and other ambiguities in the law. In this article, we examine the conditions under which an even-membered Supreme Court actually results in a tie vote. We argue that the Court recognizes the potentially damaging consequences of 4-4 rulings and seeks to avoid them when those consequences would be most severe. Consistent with that conjecture, we find that ties are less likely when a decision is necessary to resolve a dispute in the lower courts and when cases are important to the executive branch. more...

Despite significant gains, the majority of the global population still lacks the right to effective judicial remedy for rights violations. Scholars have recently considered the possibility that creating a Global Court of Human Rights could remedy this problem. This article proceeds in three sections. It begins with a discussion of the most prominent historical proposal for an International Court of Human Rights, underscoring the early recognition that a Global Court of Human Rights was needed. The next section assesses the need for the Court by reviewing the current human rights enforcement and monitoring mechanisms. It then turns to concerns with the creation of a Global Court of Human Rights. After considering these arguments, the article identifies three key benefits of creating the Court and proposes a sketch of a Global Court of Human Rights. more...

The public perceives the Supreme Court to be a legal institution. This perception enables the Court's legitimacy-conferring function, which serves to increase public acceptance of its decisions. Yet, the public acknowledges a political aspect to the Court as well. To evaluate how the public responds to the different images of the Supreme Court, we investigate whether and how depictions of specifically partisan (e.g., Republican) Court rulings shape public acceptance of its decisions while varying institutional, legal, and issue characteristics. Using survey experiments, we find that party cues and partisanship, more so than the imprimatur of the Court, affect public acceptance. We also find that polarization diminishes the effect of party cues. Attributing a decision to the Court does little to increase baseline acceptance or attenuate partisan cue effects. The Court's uniqueness, at least in terms of its legitimacy-conferring function, is perhaps overstated. more...

When the Supreme Court takes action, it establishes national policy within an issue area. A traditional, legal view holds that the decisions of the Court settle questions of law and thereby close the door on future litigation, reducing the need for future attention to that issue. Alternatively, an emerging interest group perspective suggests the Court, in deciding cases, provides signals that encourage additional attention to particular issues. I examine these competing perspectives of what happens in the federal courts after Supreme Court decisions. My results indicate that while Supreme Court decisions generally settle areas of law in terms of overall litigation rates, they also introduce new information that leads to increases in the attention of judges and interest groups to those particular issues. more...

The proportionality test is a central doctrine of the individual rights jurisprudence of the South African Constitutional Court. However, one core part of the proportionality test, the balancing of competing interests, is often severely criticised because it is supposed to lack rational standards of comparison. Therefore, many critics of balancing claim that courts make policy decisions by second-guessing legislative value-decisions. This article analyses how the Constitutional Court deals with this critique. It makes a detailed analysis of the case law and finds that the court, in fact, rarely balances when it overturns a piece of legislation. When correcting the legislature, the court usually bases its judgment on other arguments, such as over-breadth, less-restrictive-means, or lack of consistency. However, the court balances when it confirms legislation, or when it corrects common law rules. In both cases, the court does not come into conflict with the political branch so that balancing does not pose any legitimacy issues. In sum, the court is rather concerned with holding the legislature accountable to take decisions that represent all groups of the society than with determining the resolution of deep value conflicts. more...

Numerous studies have found that elite and popular preferences influence decision making on the U.S. Supreme Court; yet, uncertainty remains about when, how, and why the Court is constrained by external pressure. I argue the justices are constrained, at least in part, because they fear nonimplementation of their decisions. I test this theory by utilizing a recent study of judicial power, which finds the Court enjoys greater implementation power in �vertical� cases (those involving criminal and civil liability) than in �lateral� cases (all others; e.g., those involving schools or government agencies). I find that Court constraint is strongest in important lateral cases�those cases in which implementation depends on support from nonjudicial actors. My findings suggest that Supreme Court constraint is driven by the justices' fear of nonimplementation and is, therefore, dependent on institutional context. more...

Scholars have long been simultaneously concerned with the factors that influence appellate court decision making and the level of deference that the courts allow for agencies. However, scholars have treated administrative agencies as unitary actors with a single level of decision making, but in reality agency decisions involve input from multiple actors within the agency. I argue that appellate courts rely more heavily on decisions made by actors in the bureaucracy with greater levels of expertise and who are less politically motivated as cues in their decision making. This theory is bolstered by legal precedent in the area of administrative law that suggests courts should more heavily rely on the expert judgment of administrative judges. Thus, as a result of their increased expertise, appearance of political neutrality, and institutional support, courts will be more reliant on decisions issued by administrative law judges (ALJs) than those issued by the political appointees as cues in their decision making. Using over 300 unfair labor practice decisions issued by the federal appeals courts on review of cases from the National Labor Relations Board (NLRB or Board), I develop a model of appeals court decision making in unfair labor practice cases as a function of the initial decision of the ALJ, the final order of the political appointees of the NLRB, case characteristics, the ideology of the deciding appeals court panel, Supreme Court influence, and economic factors. Though the ideology of the court plays a role in its decision making, cues from ALJ decision making and that of the Board weigh more heavily in appellate court outcomes. However, cues from ALJ decisions play the most consistent role in appellate court decision making, even in more difficult cases. This has important implications for agency strategy in courts and suggests that future research should consider the influence of lower-level decision making over appellate court decision making in the area of administrative law. more...

Although the Supreme Court is a countermajoritarian institution by design, many scholars have contended that without concrete powers, the Court relies on public support for legitimacy. Accordingly, it is important to understand the relationship between people’s ideological proximity to the Court and their support for it. Existing empirical research suggests a correspondence between public opinion and the Court’s positions, but these studies do not directly compare masses and elites in a common space. To address these issues, we conducted an original survey asking respondents about their positions on ten recently decided Supreme Court cases. This allows us to estimate the positions of citizens and justices on the same ideological scale. Further, while some existing theories of perceptions of judicial legitimacy suggest similar relationships between ideological distance and various types of support for the Court, we propose a theory of heterogeneous responsiveness which posits that citizens’ ideological distance from the Court should be negatively related to their approval of and trust in the institution, but positively related to their support for its countermajoritarian function. Our empirical approach finds support for the theory. more...

We propose a dynamic model of precedent in a judicial hierarchy which incorporates a “bottom-up” informational component. When a high court establishes precedents, it has uncertainty regarding how they will play out when applied to future legal disputes. Lower court implementation of these precedents can inform the high court about the contemporary policy implications—i.e., the ideological location—of the precedents. If lower court usage of a precedent is informative, the high court will consider the revealed location of the precedent when contemplating reducing the precedent’s authority and applicability to future cases. Using data on U.S. Supreme Court precedents and U.S. Courts of Appeals citations to these precedents, we estimate a model of the Court’s negative treatment of precedent. We find lower court usage of precedent can provide new, useful information on the policy content of a precedent, helping the Court shape law in a way consistent with its preferences. more...

The Children's Court is a critical social institution and important forum of social work practice. It decides important legal and social issues relating to children and families. This article reports the findings of a study of the views of Victoria's Children's Court magistrates on the current status and challenges faced by the Children's Court as well as possible reforms that have recently been canvassed in Australia and overseas. This study was part of a larger “national assessment” of Australia's Children's Courts. The focus of this article is the Court's criminal jurisdiction. The findings point to concrete directions for change, for example, in aspects of its inputs and throughputs. In addition, the magistrates supported a shift in the Court's orientation to that of a therapeutic, jurisprudence-informed, problem-solving court. Findings also point to the need for research on the understanding of court processes and decisions by defendants and their families. more...

The Nature of Supreme Court Power. By Matthew E. K. Hall. New York: Cambridge Univ. Press, 2011. 262 pp. $94.00 cloth.Merely Judgment: Ignoring, Evading, and Trumping the Supreme Court. By Martin J. Sweet. Charlottesville and London: Univ. of Virginia Press, 2010. 240 pp. $35.00 clothMatthew E. K. Hall's The Nature of Supreme Court Power and Martin J. Sweet's Merely Judgment are impressive books that considerably advance our knowledge about the implementation and impact of Supreme Court decisions. Hall frames his study as a direct response to Gerald Rosenberg's thesis that the Court (and courts generally) " 'can almost never be effective producers of significant social reform' " (xiii; 160, quoting Rosenberg 2008: 422). Moreover, Hall argues, Rosenberg's view is emblematic of the decided weight of scholarly authority on the nature of the Court's power. The Court is generally seen as a highly constrained and weak institution (13-15). By contrast, Hall finds "that the Court possesses remarkable power to alter the behavior of [other] actors in a wide range of policy issues" (160). Sweet wants to make a different argument. He claims that "political institutions enjoy considerable discretion in deciding whether and how to follow the Court, because they can often defang would be plaintiffs" (5). Obviously, both authors cannot be right. As is often the case, as between Hall and Sweet, different theoretical approaches play a part in the competing interpretations. Notwithstanding the different approaches in play here, it seems to me that for the most part, Hall is right, and Sweet is wrong, although Sweet's study is well done and informative in many ways.Like Rosenberg, Hall is committed to social scientific positivism. Through an objective case selection method (27, and Appendix I), he pinpoints no less than 57 "important" cases decided between 1954 and 2006, which he then groups into 27 issue areas for purposes of impact analysis. Hall's conception of power, like Rosenberg's, is one-dimensional: " 'A power relation, actual or potential, is an actual or potential relation between the preferences of an actor regarding an outcome and the outcome itself ' " (7, quoting Nagel 1975). Hall's study, notwithstanding its incredible scope, is limited to seeking to observe whether the Court changes the behavior of other actors in the cases in which it actually attempts to do so by striking down laws.The question is "Under what conditions is the Court powerful?" (14). The independent variables are twofold: (1) "the institutional context" of a decision, and (2) the degree of popular opposition to a decision. The first of these brings us to Hall's great insight. Vast research demonstrates that lower courts are generally faithful and reliable implementers of Court decisions (16). By "institutional context," Hall means "the distinction between Supreme Court rulings that can and that cannot be implemented by lower courts" (5). He calls issues for which the lower courts are primary in the implementation process "vertical issues," and issues for which they are not "lateral issues." He codes every case as either vertical or lateral. For popular opinion, Hall relies exclusively on public opinion data. This elegant model thus yields a two-by-two framework for inquiry. Hall hypothesizes that only very strong popular opposition in a lateral issue can defeat the Court when it intends to alter behavior, and it follows that the Court can prevail over public opposition (even very strong opposition) in vertical cases, but not lateral ones. It then remains for Hall to specify the relevant intended outcomes of the Court's decisions, and to find good data that can show us whether actors changed their behavior in response to them. Hall is well aware that his analysis is shot through with interpretation and judgment calls. To his credit, he does not try to standardize his measures across the cases, but rather clearly lays out his thinking about what research and information is available, which indicators or measures make the most sense in a given context, and so on. … more...

Court scholars have a voracious appetite for Supreme Court preference measures. Several articles question whether widely used Martin and Quinn (2002, 2011) scores provide valid intertemporal measures, calling into question virtually an entire generation of quantitative research on the Court. This article discusses the challenges of intertemporal preference estimation and revises, updates, and extends Bailey and Maltzman (2011) to present Supreme Court preference estimates that are more defensibly comparable across time and institutions. more...

While Congress can attempt to overrule constitutional decisions of the Supreme Court by initiating the constitutional amendment process, an amendment is rarely a practicable option. Instead, Congress regularly tries to modify the impact of constitutional decisions with ordinary legislation. I analyze policy-based responses to the Supreme Court’s constitutional decisions that were initiated in Congress between 1995 and 2010. For each responsive proposal, I consider the relationship between the proposed legislation and the Court’s legal holding and the relationship between the proposal and the public policy associated with the Court’s decision. I find that Congress enjoys considerable success in reversing the policy impacts of the Court’s decisions but is limited in its ability to overcome the Court’s legal rules. When members of Congress dislike an opinion announced by the United States Supreme Court, they can express their disapproval in several ways. Congressional responses range from the nearly costless issuance of public statements voicing criticism of the Court to the daunting task of shepherding proposed constitutional amendments through Congress in the hopes of sending amendments to the states that will overcome the Court’s constitutional interpretations. Other legislative proposals may reverse statutory interpretations adopted by the Supreme Court or revise policies that have been declared unconstitutional in the hopes of satisfying judicial scrutiny. Instead of attempting to alter the policy announced by the Court, members of Congress may engage in institutional attacks 1 designed to weaken the Court. I consider the use of ordinary legislation to limit or modify the impact of constitutional decisions of the Supreme Court. I call these proposals “policy-based responses” to differentiate them from institutional attacks, which are often assumed to be Congress’s preferred or only available vehicle for responding to the Court’s constitutional decisions. I argue that policy-based responses are a regular more...

Few empirical studies have established a relationship between court funding and judicial corruption in China. It is widely assumed that inadequate court funding erodes justice through denying access to the “have-nots”, giving courts an incentive to delay cases and jeopardizing judicial autonomy. I test this theory using qualitative interviews in seven Chinese provinces and a quantitative analysis of two original data sets of Chinese counties and cities. I demonstrate that underfunded courts are more likely to be perceived as corrupt, and further propose direct measures of court funding and perceived judicial fairness. more...

As contemplated by the Rome Statute of the International Criminal Court (‘Court’), the United Nations and the Court entered into a Relationship Agreement in 2004. The Relationship Agreement provides a framework for cooperation between the United Nations and the Court, including through logistical or administrative support to the Court, in particular in countries where the Prosecutor has opened investigations or is conducting preliminary examinations. The United Nations also provides substantive support and judicial assistance to the Court’s organs, in particular to the Prosecutor, but also increasingly now to the Defence, by making available documents and information generated or obtained by the United Nations and its various field presences. United Nations staff and experts have also been made available to the Court for interview and some have testified before the Court, for which the United Nations Secretary-General has to waive their immunity. This commentary provides an update on recent developments in two areas of cooperation between the United Nations and the court: information sharing, and contact with persons subject to warrants or summonses. more...

Articles 5(3) and 34(6) of the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an African Court on Human and Peoples’ Rights require that an application before the African Court on Human and Peoples’ Rights (the Court) will not be ‘received’ unless two conditions are fulfilled. First, the application must be filed against a State which has ratified the Protocol. Second, an application can be received only against a State which made an optional declaration accepting the competence of the Court to receive cases from Non Governmental organisations (NGOs) with observer status before the Commission and individuals. The vast majority of State parties to the Protocol have not filed (and are not likely to file in the near future) a declaration to allow NGOs and individuals, most likely to bring human rights cases before the Court, direct access to the Court. This article examines the impact of the limitation imposed on direct access to the Court by individuals and NGOs on the African Court’s jurisdiction by considering the applications decided by the Court since it started its operations in 2006 up to December 2012. It is argued that the limitation is a major challenge currently facing the Court and that it has adversely affected the exercise of the Court’s jurisdiction. It is concluded that allowing NGOs and individuals direct access to the Court will make a significant contribution to the attainment of the objectives of the African Charter and the Court’s Protocol. more...

The most prominent of the few stated criteria by which the Supreme Court decides to hear a case is the existence of a conflict among the lower courts. However, a lower court split does not automatically lead the Supreme Court to review a case, and the justices have often allowed lower court splits - and thereby the application of different legal standards across the country - to stand for long periods of time. What explains the Court's tolerance of conflict, and its eventual decision to resolve it? We model the Supreme Court's decision to intervene in a conflict as an optimal stopping problem. The Court faces a strategic trade-off between allowing conflict to continue while it learns about the implications of the possible policy choices and intervening to end a costly conflict between the lower courts. Our model provides the first theoretical framework for understanding when and how the Court decides to resolve lower court conflict. more...

Do people accurately perceive the Supreme Court's ideology in relation to their own positions? Which types of people are most likely to misperceive? Answering these questions is important for understanding the basis of public support for the Supreme Court. To do so requires plac- ing the public and the Supreme Court on a common ideological scale. This study represents the first attempt to do so. We ask respondents how they would have voted on a set of cases recently decided by the Court, meaning that we can generate a comparable set of ideal points for both masses and elites in a common space. We find that the Court is generally representa- tive of mass opinion and that most citizens have accurate perceptions of the Court. However, we also find that people are substantially more likely to misperceive the Court as being too liberal than too conservative. more...

Agenda-setting theory is central to understanding the connection between media and American government. Indeed, legislative and executive branches of American government are often characterized by their publicity-seeking behavior. This is not true of the judicial branch. However, the importance of media coverage is magnified for the United States Supreme Court because, lacking the public affairs mechanisms of the other two branches, the Court is dependent on media dissemination of information about its decisions. Despite this important role, little is known about what attracts media to cover Supreme Court cases. We ask what case characteristics attract media attention. We examine the effect of case variables on general media coverage of Court decisions (a concept we call “newsworthiness,” measured by whether mention of a given case decision appears on the front page of the New York Times) and on inclusion of a case on a list of legally significant cases over time (a concept we call “legal salience,” measu... more...