The Effect of Social Sanctions on Judges: Concealing Underperformance

The Effect of Social Sanctions on Judges: Concealing Underperformance

המוהיקני האחרון- על הומניזם, אחריות יהודית גלובאלית וממלכתיות במשנתו של השופט רובינשטיין <br>The Last Mohican - on Humanism, Global Jewish Responsibility, and Civic Unity in the Views of Justice Rubinstein

1. Introduction A stark contrast exists between the widespread application of positive political economy models in the study of the executive and legislative branches of government and the relative dearth of such work on the judiciary. In particular, the U.S. Supreme Court is widely regarded as a totally independent body whose rulings are not influenced by political or other outside pressures. Indeed, the dominant political science model of Supreme Court decision making, the attitudinal model, argues that the rules and structures of the U.S. political system allow justices to vote sincerely without constraints from Congress and/or the president (Segal and Spaeth 1993). In contrast to this dominant view, several authors have begun to analyze Supreme Court decisions guided by the positive models of bureaucratic behavior that exist in both the economics and the political science literature. Toma (1991) finds that Congress signals its opinion of the Court's direction through budgetary allocations, and that budget changes have a significant effect on Court decisions. Her more recent work (Toma 1996) focuses on the role of the chief justice as an agent of Congress who reacts to budgetary signals to bring Court decisions in line with congressional preferences. Spiller and Gely (1992) find strong evidence of congressional influence over Court decisions in industrial labor relations cases. Caporale and Winter (1998) find support for the existence of both executive and congressional influence over Supreme Court decisions in criminal procedure cases. This paper investigates possible outside influences on Supreme Court decisions in economic cases. We find that Republican presidents and more conservative leadership of the Senate and House Judiciary Committees are significantly correlated with more conservative Supreme Court economic decisions. In addition, we find that conservative decisions are positively correlated with the fraction of the Court appointed by Republican presidents. This provides strong support for a presidential of appointment channel of judicial influence. Also, we find that the lagged inflation rate significantly influences the direction of the Court's economic decisions. Finally, we demonstrate the robustness of our results using an alternative measure of congressional ideology. 2. Theories of Supreme Court Behavior The Traditional Legal Model Courts are the mere instruments of the law, and can will nothing. When they are said to exercise discretion, it is a mere legal discretion, a discretion to be exercised in discerning the course prescribed by law; and, when that is discerned, it is the duty of the Court to follow it. Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect to the will of the Legislature; or, in other words, to the will of the Law. Chief Justice John Marshall, 18241 As recent legal analysts have noted, the vast bulk of legal scholarship and content of law school training largely rests on Justice Marshall's contention.2 Explicitly or implicitly, an assumption is made that court decisions are based centrally on reasoned arguments. This view, in which judges apply neutral principles and logical reasoning to the Constitution, prior precedents, or statutes in resolving cases is labeled the legal Perhaps the clearest proponent and strongest advocate of the traditional model was Christopher Columbus Langdell, the Harvard Law School's first dean.3 For the Langdellian judge, judicial decisions are based on logical reasoning or reasoning by example. Primary importance is placed on textual interpretation and legal precedent. From this framework, decisions can be viewed as inevitable conclusions based on the analysis of earlier cases. Clearly, this model left no room for any expression of judicial individuality or personal ideology. The Attitudinal Model In contrast to the formalism of the traditional model, political scientists have developed an alternative theory of Supreme Court (and other judicial) decision making: the attitudinal model. …

This research discusses the Supreme Court decision Number: 813 K/Pid/2023 regarding the criminal law enforcement of premeditated murder committed by Ferdy Sambo. This decision changed the sentence for convicts from the death penalty to life imprisonment. This penal reduction needs to be studied using a constructivist paradigm. The constructivist paradigm will examine the operation of law in society which is influenced by people's experiences, whether social, religious, cultural, including ideological. The Supreme Court's decision provides legal considerations regarding mitigating reasons for the convict. This is the difference with the decisions of the lower courts. From a constructivist perspective, this is not quite right. It is necessary to state the factors of community experience in making decisions for convicts. Moreover, there was a dissenting opinion by the judge in adjudicating the Supreme Court's cassation decision Number: 813 K/Pid/2023. The difference of opinion is based on legal considerations that the reason for self-defense is forced, the self-respect or honor of the convict does not need to be considered. Then there are allegations of immoral acts whose truth has not been clarified by the convict to the victim. The reality of the experience was not explored enough in the decision, both social factors and environmental factors of the convict.This research discusses the Supreme Court decision Number: 813 K/Pid/2023 regarding the criminal law enforcement of premeditated murder committed by Ferdy Sambo. This decision changed the sentence for convicts from the death penalty to life imprisonment. This penal reduction needs to be studied using a constructivist paradigm. The constructivist paradigm will examine the operation of law in society which is influenced by people's experiences, whether social, religious, cultural, including ideological. The Supreme Court's decision provides legal considerations regarding mitigating reasons for the convict. This is the difference with the decisions of the lower courts. From a constructivist perspective, this is not quite right. It is necessary to state the factors of community experience in making decisions for convicts. Moreover, there was a dissenting opinion by the judge in adjudicating the Supreme Court's cassation decision Number: 813 K/Pid/2023. The difference of opinion is based on legal considerations that the reason for self-defense is forced, the self-respect or honor of the convict does not need to be considered. Then there are allegations of immoral acts whose truth has not been clarified by the convict to the victim. The reality of the experience was not explored enough in the decision, both social factors and environmental factors of the convict.

The normative contradiction between Supreme Court Decision Number 23 P/HUM/2024, which raised the age limit for regional head candidates, and Constitutional Court Decision Number 70/PUU-XXII/2024, which precisely nullified the norm regarding the minimum age limit, creates legal uncertainty and potential serious implications for the organization of the Regional Head Elections (Pilkada). This research employs a descriptive analytical method with a normative juridical approach to analyze the legal validity of Supreme Court Decision No. 23 P/HUM/2024 in relation to Constitutional Court Decision No. 70/PUU-XXII/2024 concerning the age limit for candidacy in the 2024 National Simultaneous Regional Head Elections. This approach primarily focuses on the study of library legal materials (secondary sources), which include primary legal materials such as the 1945 Constitution, laws pertaining to the Supreme Court and Constitutional Court, and relevant Supreme Court and Constitutional Court decisions. It also incorporates secondary legal materials in the form of legal scholars' opinions. Data collection was carried out through a literature review (document study), supplemented by limited field study, and analyzed using a qualitative juridical method to formulate answers to the existing legal issues. The research findings indicate that the Supreme Court's (MA) decision regarding the age limit for candidacy registration in the 2024 National Simultaneous Regional Head Elections (Pilkada) lacks binding legal force and there's no legal basis for the MA to review provisions stipulated by Law No. 10/2016 concerning Pilkada. In this instance, the MA has exceeded its authority. Consequently, the legal validity of the MA's decision, in light of the Constitutional Court's (MK) decision on the age limit for Pilkada candidacy registration, is deemed legally invalid under applicable laws and regulations. Therefore, with the MA's decision being invalid, the Constitutional Court's decision is the one that prevails.

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.

Whether American courts either do or should represent public opinion is a long‐debated issue. Some court rulings agree with nationwide public opinion polls, while others do not. Overall, does the appeals process bring judicial policy‐making more closely into line with American public opinion? Evidence from nationwide polls since the mid‐1930s suggests that U.S. Supreme Court decisions and federal appeals courts decisions better represent American public opinion than do the decisions of federal district courts or of state courts. A lower‐level court decision that agrees with nationwide public opinion is much more likely to be upheld upon appeal by an upper‐level court. The Supreme Court's certiorari decisions disproportionately select for review lower court decisions that disagree with nationwide polls. Five reasons for this pattern are offered.

The State of Constitutional Theory in U.S. Law Schools in the 2000s Mark Tushnet (bio) For a period running from the late 1960s to the early 1990s, constitutional theory in U.S. law schools dealt almost entirely with constitutional interpretation by the courts. Legal scholars' obsession with interpretive theory arose from the political circumstances of their scholarship. Conservative legal activists cast their challenge to the Warren Court's liberal decisions not (simply) in terms of disagreement with the results, but in terms of the illegitimacy of the interpretive techniques the Warren Court used. According to conservatives, the only method of constitutional interpretation that could confer legitimacy on the Court's decisions was one that focused almost entirely on the original meaning or understanding of the Constitution's words.1 The Warren Court (and then the Burger Court, to their dismay) did not follow the conservatives' prescription. Liberal constitutional theorists developed two responses to the conservative challenge.2 First, they directly took originalism on. One popular argument was that originalists could not provide a decent account of how the understandings held by individuals were aggregated into a single understanding that later courts could apply. Another was that originalist examinations of particular provisions were typically extremely simple-minded, of a sort derided by historians as "law office history." The liberals were attracted to the argument that serious examination of the framing era disclosed an extremely complicated intellectual universe, riven by serious conceptual disagreements that went to the proper understanding of particular constitutional provisions. In light of those disagreements, liberals said, there simply was no original understanding that later courts could apply. A third popular response to conservative originalism emphasized the impossibility of directly applying original understandings to changed circumstances. Instead, liberals argued, courts today should invoke the values that underlay the Constitution's provisions to see how contemporary statutes measured up against those values. The liberals' second response to conservative originalism was to develop alternative interpretive approaches that, they argued, made judicial decisions legitimate. Two such approaches were particularly attractive. The first was John Hart Ely's revival and rearticulation of the "Carolene Products footnote 4" approach. Under that approach, courts were to identify and rectify obstructions in the processes of democratic representation, and then stand aside. According to Ely, this approach reconciled vigorous judicial review — within its proper domain — with democratic self-governance, by using the courts to purify the processes of democratic representation without supervising the outcome of truly democratic processes. The second popular approach was Ronald Dworkin's invocation of moral and political philosophy to interpret the Constitution's rights-protecting provisions, which, after all, did use terms familiar to philosophers. The disputes between the liberals and the conservatives became increasingly arcane. Conservatives acknowledged that some constitutional provisions were understood when adopted to refer to somewhat abstract rights, but criticized liberals for manipulating the level of generality on which they interpreted those provisions and rights. They modified their position to deal with the problem of aggregation, but claimed that revised originalist approaches remained plausible. Liberals acknowledged that American political traditions required recourse to some sort of originalism to justify judicial interpretations, but insisted that such recourse need not be as rigid as conservatives insisted. Eventually the fights over originalism petered out in the law schools, though they remained important in the rhetoric of conservative political activists who focused on the courts. Conservatives discovered that the Rehnquist Court did well enough by their lights without adopting a purely originalist approach, and indeed did so by deploying some of the techniques conservatives criticized when liberals used them.3 The legal academy generally concluded that there was something wrong with an analysis that led to the conclusion that essentially all of the Supreme Court's work in the twentieth century, if not before, was somehow illegitimate. It was hard to say that the Court's decisions lacked democratic legitimacy in a world where the Court's decisions were routinely endorsed by the American public. In the end, constitutional theorizing in U.S. law schools about constitutional interpretation ended with the acknowledgement that the Court in fact deployed a number of interpretive approaches, and properly so. Originalism of some sort — at least...

This article examines the Supreme Court's recent decision in Illinois Tool Works v. Independent Ink. In that decision, the Court extended its remarkable run of pro-defendant decisions in antitrust cases, holding that plaintiffs in patent tying cases must prove and not presume market power. The Court's rejection of the presumption of market power in the presence of a patent, as well as a special per se rule of illegality for patent ties is consistent with the broad consensus that views patents as distinct from monopolies, and recognizes the pro-competitive uses of tying. While this is a positive step, the Court's decision may be limited by the flawed and outdated modified per se rule used to evaluate tying arrangements generally. Moreover, while the Court undermined the underlying rationale for the modified per se rule against tying, it chose not to revisit this issue. In addition, while the Court's opinion implicitly adopts a robust standard for market power, it failed to address its contradictory holding in Kodak v. ITS, its most recent decision evaluating a tying arrangement.

Spilled Ink or Economic Progress? The Supreme Court's Decision in Illinois Tool Works v. Independent Ink

There are several decisions of the Constitutional Court (MK) regarding judicial review which are not only difficult to implement in practice but also followed-up in a variety of ways. Several norms in the Criminal Code (KUHP) and the Criminal Procedure Code (KUHAP), are some of those that are often petitioned for review at the Constitutional Court. There are two main problems in this paper, first, how is the implementation of the Constitutional Court decision in a criminal case followed-up by the Supreme Court (MA)? Second, how should the Supreme Court's decision follow-up in criminal cases? This study concludes, first, the follow-up after the Constitutional Court's decision (especially judicial review) in criminal cases by the Supreme Court in the form of Supreme Court Circular Letter (SEMA), Supreme Court Regulations (PERMA), and there are even those who ignore the Constitutional Court's decision because the Supreme Court’s decision still rests on the provisions that have been canceled by the Court. Second, to follow-up on the Constitutional Court's decision by the Supreme Court in a criminal case, a legal product in the form of a Supreme Court Regulation must be issued. This is necessary for the smooth running of the judiciary or to fill legal gaps and loopholes resulting from the Constitutional Court's decision. For this reason, the People's Representative Council (DPR) and the Government should immediately revise the Criminal Code and Criminal Procedure Code so as not to create a legal vacuum, so as to provide justice and legal certainty for the community.

The development of techniques for newborn screening and for prenatal diagnosis of sickle hemoglobin and other hemoglobinopathies will have a profound effect on public health policy to a greater extent than did mass population testing that was initiated in the early 1970s. The subject of this conference is newborn screening; however, there is an old aphorism: "One cannot do one thing." Accordingly, when newborn screening for hemoglobinopathies is instituted on a large scale, the public policy consequences will extend far beyond newborn screening. We cannot anticipate all of the effects of such a policy, but some aftermaths may be predicted with near certainty. To understand the possible outcomes of a large-scale newborn screening program for sickle cell disease, some prior court and legislative decisions are pertinent. Legislation, court decisions, state and federal genetics programs, and scholars in the social sciences, humanities, law, medicine, and genetics support discoveries in genetics that now facilitate genetic testing, prenatal diagnosis and selective abortion of fetuses with genetic and other disorders, artificial insemination, and in vitro fertilization. Arguments for and against these procedures are reminiscent of debates about the use of the limited tools of the old eugenics to prevent the birth of children who were considered to be physically, mentally, or socially defective. Some examples of these court and legislative decisions follow: the Supreme Court verdict in Munn v Illinois established that the public interest supercedes the private interests of individuals; Buck v Bell, another Supreme Court ruling, upheld the constitutionality of mandatory sterilization.

The reconsideration is an extraordinary legal remedy to the decision of Court that have legally binding (inkracht van gewisjde). The Decision of the Constitutional Court No. 34/PUU-XI/2013 stated that extraordinary legal remedy aims to obtain justice and truth material, so the provisions of Article 268 paragraph (3) Criminal Procedure Code states that, “request reconsideration of a decision can only be done once only” contrary to the 1945 Constitution and does not have binding force. The decision of Constitutional Court raises the pros and cons, on one side there are statements that reconsideration more than once is an effort to protect the rights of the public in obtaining justice, but on the other side there are statements that reconsideration is more than once is a violation of the principle of legal certainty. After analyzing the decision of the Constitutional Court No. 34/PUU-XI/2013 it could be concluded that, first, the reconsideration is more than once in accordance with the public interest to obtain justice in law enforcement, because in obtaining justice and truth material can not be limited by time. Second, the decision of the Constitutional Court are final and binding, despite raises the pros and cons, then all are required to implement the decision of the Constitutional Court. Therefore, the Supreme Court is expected to soon complete the Regulation of the Supreme Court about filing reconsideration in criminal cases by adjusting the decision of the Constitutional Court.

Unequal reproductive justice under the law

The long-standing dispute between the Constitutional Court and the Supreme Court over the binding force of limited unconstitutionality decision is more than just a theoretical disagreement; it sometimes results in serious harm to taxpayers, as is the case with the targeting decision discussed in this paper. This case involved a long and complicated process of tax assessment - first instance dismissal of the plaintiff's claim - appellate decision upholding the plaintiff's claim - the Supreme Court‘s remand - appellate decision after remand - limited unconstitutionality decision - reconsideration dismissal - reconsideration appeal dismissal. The claimant of the target decision sought a constitutional challenge of ① the reversal of the decision to dismiss the reconsideration and the reversal of the decision to dismiss the appeal of reconsideration, ② the reversal of the Supreme Court's decision to remand the case and the reversal of the decision which is the target of reconsideration, and ③ the cancel of the tax disposition of the case. The Constitutional Court dismissed the first case, and dismissed the second case on the grounds that it did not constitute a ‘trial against the binding effect of an unconstitutionality decision on the law,’ and also dismissed the third case on the grounds that canceling the third case without canceling the second case would conflict with the trial’s binding effect. In cases such as this one, where a court violates the fundamental rights of the people by failing to recognize the effectiveness of a limited unconstitutionality decision, the Constitutional Court needs to actively recognize a petition for constitutional review of the original administrative decision in exceptional cases in order to secure the effectiveness of the unconstitutional decision, correct the legal order of constitutional supremacy that has been undermined by the court, and promptly and efficiently remedy the fundamental rights of the people. For the decision in this case to be meaningful, it should have reversed the judgment dismissing the petitioner's request for reconsideration by denying the binding effect of the limited constitutionality decision and also reversed the tax assessment in this case. It is troubling that the Constitutional Court could have done so, but instead chose to stick to a formalistic logic and ignored the taxpayer's remedy. In the future, we hope that the Supreme Court will first recognize the binding force of the Constitutional Court's limited constitutionality decision, and if the Supreme Court does not change its attitude, the Constitutional Court will take a more proactive stance in relieving taxpayers' rights, and the legislature should hurry to amend the Constitutional Court Act to fundamentally solve the problem.