Relationship Of Court Research Articles

Originalism as Faithfulness

Eric Segall's Originalism as Faith is a quick, easily-digestible summary of the conventional wisdom about the Supreme Court's relationship to original meaning for large portions of the legal academy. Prominent textbook authors like Deans Erwin Chemerinsky and Geoffrey Stone tout it as masterful and persuasive. Originalism is false, Segall contends, because its adherents on the Court apply it selectively at best. If even the justices who most prominently claim to follow original meaning don't take it as binding, why should anyone else? The of which Segall's title speaks is a in the Supreme Court to govern its decisions by historical standards: a faith that some combination of text, originalist-era evidence, and history can constrain Supreme Court decision making. This is misplaced, because the Court cannot do so. Originalism as Faith has one big virtue but four main flaws. Segall properly points out elements of hypocrisy from originalists on the Court, but draws the wrong lesson from that hypocrisy, and muddies three crucial distinctions in constitutional law: between Court and Constitution, between epistemology and ontology, and between application and meaning.

Note: Rights or Benefits? The Indian Supreme Court and Criminal Procedure

This short comment suggests that the recent decisions by the Indian Supreme Court in Mohan Lal v. State of Punjab, and Varinder Kumar v. State of H.P., are perhaps indicative of a more pervasive trend. This trend is one where the Supreme Court creates new procedural rights as tools through the vehicle of Article 21 - India's due process clause - as a tool to redress deeper systemic issues presented in cases brought by oppressed litigants. These drastic circumstances make the Court forget that a procedural applies to all cases, and answer basic questions such as the remedy for a breach of these new rights. Ultimately, when cases involving seemingly undeserving litigants come before the Court, it signals a retreat and transforms the right into a benefit that it can dole out in cases it deems fit. This trend warrants further investigation, to help arrive at a more nuanced take on the Indian Supreme Court's relationship with criminal procedure.

The Supreme Court compendium: data, decisions, and developments

Supreme Court Compendium is the only reference that presents historical and statistical information on every important aspect of the U.S. Supreme Court, including its history, development as an institution, the justices' backgrounds, nominations, and confirmations, and the Court's relationship with the public and other governmental and judicial bodies. The newest edition of this comprehensive reference includes important new perspective on the legacy of the Rehnquist court. Readers will also find: An institutional overview of the Court's history including a chronology of important events from 1787-2006, important Congressional legislation relating to the Supreme Court, internet sites relating to law and courts, and much more; background information on all the justices such as family backgrounds, childhood environments, marital status, educational and employment histories, political experiences and trends in voting agreement; and the political and legal environment of the Court is presented including the success rate of the United States as a party before the Supreme Court, the rates of success of various administrative agencies, and state participation in court litigation with success rates. new edition includes more than 180 tables and charts and is updated to cover Supreme Court events through the 2005-2006 term. This reference is an invaluable resource to judicial scholars, students, and those interested in the history of the Supreme Court.

The Romanian Constitutional Court's Relationship with the Ordinary Courts: What Are Some of the Causes of Its High Caseload?

AbstractThis article examines the recent high caseload of the Romanian Constitutional Court from a comparative perspective. In investigating possible causes of this phenomenon, the author has created several aggregated data sets based on the primary data available on the website of the Romanian Constitutional Court (over 20,000 referrals since 1992) and has examined the following hypotheses, most of which concern relations between the Constitutional Court and the ordinary courts: automatic suspension of proceedings as a delaying tactic, the ordinary courts as a filter, and the possibility of mass litigation as a storm flood caused by the strict ex nunc effects of the decisions of the Constitutional Court. The author has concluded that, while mass litigation is a substantial factor (responsible for three-quarters of the caseload in 2009), there was an underlying upward trend that can be explained by other causes. The available data are not particularly conclusive, but a recent legislative amendment could—in the near future—provide a test of the 'automatic suspension as a delaying tactic' hypothesis. The author also has evaluated the extent to which the Court may have been overwhelmed by the number of cases. Surprisingly, the Court has adjusted rather well to the exponential increase in its caseload since it was established in 1992. While its backlog has increased, the lower number of referrals submitted in 2010 and 2011 should relieve part of the pressure. Furthermore, the author assesses whether key cases involving politicians have been delayed by the Court. The available data seem to indicate that such cases are not being excessively delayed.

The Search for Coherence in the Use of Foreign Court Judgements by the Supreme Court of Ireland

The reference to foreign court judgments by the US Supreme Courts - particularly in cases involving the US Constitution - has sparked controversy. This controversy flared in Lawrence v. Texas, where Justice Scalia criticized Justice Kennedy for reference to judgments by the European Court of Human Rights in Justice Kennedy's majority opinion striking down the Texas sodomy statute. This article examines the issue from a different perspective: references to 'foreign' court judgments (including US Supreme Court opinions) by the Supreme Court of Ireland. The article examines the Irish Supreme Court's use of judgments from the European Court of Justice, the European Court of Human Rights and the US Supreme Court. The article argues that the Irish Supreme Court's attitude to reference to 'foreign' court judgments depends upon whether the Irish Court occupies a vertical or horizontal position with respect to the other court. Where the Irish Court's relationship is horizontal (meaning in essence that the other court cannot overrule or directly criticize the Irish Court), the Irish Court is less reluctant to refer to the foreign judgment. When the relationship is vertical (in the sense that the other court can criticize or overrule the Irish court), the Irish Court is more reluctant to refer to the foreign judgment. The article examines a number of Irish cases in support of this thesis. It concludes that because the relationship with the European Court of Human rights is vertical, the Irish Court is reluctant to refer to these cases in the Irish Court's opinion. On the other hand, because the relationship with the US Supreme Court is horizontal, the Irish Court shows less reluctance in citing US Supreme Court opinions.

Interpreting the Women's Movement

Reva Siegel's fine lecture is both illuminating and provocative.' Illuminating: She convincingly establishes a striking parallelism be tween the doctrinal positions elaborated by the Supreme Court and those developed by the proponents of the Equal Rights Amendment (ERA) in their struggle for ratification. As she explains, the women's movement did not really lose the ERA-the big loser was Article V, which failed to regis ter the movement's triumph, and the big winner was the Supreme Court, which reinterpreted the Equal Protection Clause in a way that created a de facto ERA. Provocative: She suggests that her case study poses a big problem for theories-like mine and Nino Scalia's (and countless others)-that defend a fundamental distinction between higher lawmaking and constitutional interpretation. We old fogies think that higher lawmaking is a matter for the People, interpretation is a matter for the Court. She urges us to dissolve the distinction between lawmaking and adjudication by confronting cases-like the one she describes-in which the Court seems to be re sponding directly to bottom-up movements by reinterpreting the Constitution. The women's movement, speaking for the People, did not make new higher law through Article V (Scalia). Nor did it make new law by gaining control of the political branches, and transforming the Court's personnel, in the manner of New Deal liberalism (me). It made new law by convincing the Court to change its interpretations of the Fourteenth Amendment in precisely the manner contemplated by the ERA. So good bye to the grand old distinction between lawmaking and interpretation, hello to postmodern fluidity. As Siegel recognizes, her essay suffices only to raise her provocative challenge, not to resolve it. To assess her thesis, we must move beyond a single case study to consider the Court's relationship to other social movements and see whether Siegel's claims are vindicated more

Constitutional Rules and Institutional Roles: Lessons from the Equal Protection Class of One

This Article examines the Supreme Court's recent equal protection case, Engquist v. Oregon Department of Agriculture, where the Court held that the class-of-one equal protection theory did not apply in the government workplace. The Article concludes that Engquist reflects an implicit balancing of employees' equal protection rights and government's legitimate interests in a flexible workplace and avoidance of litigation, with the Court imposing a categorical rule favoring the government's side of the balance. This Article critiques this categorical balancing. It argues that as a substantive matter such a categorical rule is generally inappropriate where interests of constitutional stature exist on both sides of the balance. However, it is the Engquist Court's method that carries with it the most troubling implications for equal protection and constitutional rights generally. Engquist disregards the sub-constitutional decision rules that lower courts developed to apply the constitutional principle the Court announced when it officially endorsed the class-of-one theory in 2000. Those rules were designed to honor both sides of the balance described above, and drew on trial courts' ability to impose appropriate pleading requirements, sift carefully through facts and thus cull meritless claims at early stages of litigation while allowing potentially meritorious claims to progress. The Court's disregard of the doctrinal rules developed by the lower courts hearkens back to its analogous disregard of congressional factfinding supporting legislation enforcing the Fourteenth Amendment. While the Court's relationship to the lower courts is quite different from its relationship to Congress, the lower courts nevertheless have unique talents useful to the project of applying constitutional principles. Engquist's exclusion of the lower courts from the task of applying Court-announced constitutional principles suggests that the Court will also greet with skepticism future congressional attempts to participate in that project. Indeed, Engquist's method is quite consistent with the most restrictive versions of the modern Court's approach to congressional enforcement legislation. Given that equality claims in the future will likely feature conduct that is subtler and more socially embedded than the more open and obvious unconstitutional conduct of the past, any unwillingness by the Court's to accept Congress as a partner in uncovering and remedying equal protection violations constitutes an ominous portent for advocates of equality. Engquist, while certainly not a conclusive indicator of the Court's likely direction on this issue, gives cause for concern.

Courtly Song in Late Sixteenth-Century France

In the late sixteenth century, the French royal court was mobile. To distinguish itself from the rest of society, it depended more on its cultural practices and attitudes than on the royal and aristocratic palaces it inhabited. Using courtly song-or the air de cour-as a window, Jeanice Brooks offers an unprecedented look into the culture of this itinerant institution. Brooks concentrates on a period in which the court's importance in projecting the symbolic centrality of monarchy was growing rapidly and considers the role of the air in defining patronage hierarchies at court and in enhancing courtly visions of masculine and feminine virtue. Her study illuminates the court's relationship to the world beyond its own confines, represented first by Italy, then by the countryside. In addition to the 40 editions of airs de cour printed between 1559 and 1589, Brooks draws on memoirs, literary works, and iconographic evidence to present a rounded vision of French Renaissance culture. The first book-length examination of the history of air de cour, this work also sheds important new light on a formative moment in French history

The Supreme Court and Progressivism: Bickel and Schmidt's History of the Supreme Court

During the early twentieth century the Progressives grappled with issues that continue to confront Americans today. The Supreme Court was central to the Progressive Era's response to big business, race relations, and environmental conservation; and the interplay between Progressivism and the Court shaped the nation's experience with these issues throughout the entire century.' In The Judiciary and Responsible Government, 1910-1921, Alexander M. Bickel and Benno C. Schmidt make an invaluable contribution to the study of the Supreme Court during the Progressive Era. In addition to a useful synthesis of wide-ranging primary and secondary sources, the authors raise important interpretive questions concerning the role of the Court within the Progressive Movement. Above all Bickel and Schmidt consider the extent to which the Court during a crucial period resisted or facilitated the development of socially-responsive government.2 Views of the Court's relationship to Progressivism have paralleled the varied interpretations of Progressivism itself. Most current scholarship rejects the textbook image of Progressives as crusading reformers. This work places the Progressive Movement within the broader organizational response to industrialization and managerial capitalism emerging during the late nineteenth and early twentieth century. There is considerable disagreement, however, about whether the organizational transformation repre-

The Supreme Court's Impact on the Law of Libel: Compliance by Lower Federal Courts

EGAL SCHOLARS traditionally analogized the federal judiciary to a pyramid, with the Supreme Court at the apex, the courts of appeals in the middle, and the district courts at the base. The scholars focused their attention upon the Supreme Court, because they believed that this was where the authoritative decisions were made. For them, the study of public law revolved around analysis of Supreme Court decisions; it was essentially the study of constitutional law. The scholars did not focus much of their attention upon the lower courts, because they assumed that these courts obeyed the dictates of the Supreme Court. short, the scholars subscribed to a hierarchical model to explain the Supreme Court's relationship with the lower courts. But beginning in the 1950s, and continuing through the 1960s and 1970s, revisionist scholars criticized this model. They said it reflected an myth' and therefore provided an unsatisfactory explanation of the Supreme Court's relationship with the lower courts. Jerome Frank wrote, In legal mythology one of the most popular and most harmful myths is the upper-court myth, the myth that upper courts are the heart of courthouse government .... considerable part, this belief arises from the fallacious notion that the legal rules, supervised by the upper courts, control decisions.2