Copyright (c) 2009 University of San Diego All rights reserved. http://works.bepress.com/usdlaw Recent documents in University of San Diego School of Law en-us Sun, 22 Nov 2009 10:15:40 PST 3600 http://works.bepress.com/david_law/18 http://works.bepress.com/david_law/18 Tue, 01 Sep 2009 08:06:10 PDT Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court's use of a particular interpretive technique - namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed every opinion in every Supreme Court statutory interpretation case from 1953 through 2006 that involved a frequently interpreted federal statute. We also collected original data on the characteristics of each statute, including its age, length, complexity, obscurity, and the number of times that it had been amended. We then used logit regression analysis to evaluate the impact of these characteristics, as well as the ideological tilt of the justices and their opinions, on the likelihood that a justice would cite legislative history in a given opinion.We find overall that the use of legislative history is driven by a combination of legal and ideological factors. On the whole, the legal variables have a significantly larger impact on the likelihood of legislative history usage than the ideological variables, but the impact of the ideological variables cannot be dismissed. Statutes that are longer or more complex increase the likelihood of legislative history usage, whereas frequent amendment of a statute decreases that likelihood. The age of the statute also matters, but its effect is neither linear nor monotonic: very new and very old statutes are more likely to elicit legislative history usage than statutes of intermediate age. Majority opinions are significantly more likely to cite legislative history than dissenting opinions, which are in turn more than twice as likely to cite legislative history as concurring opinions. The evidence also suggests that the use of legislative history by one justice prompts other justices to respond in kind with legislative history arguments of their own.With respect to the impact of ideological factors, liberal justices are generally more likely than conservative justices to cite legislative history. We found no support, however, for the proposition that justices use legislative history instrumentally in order to reach their ideologically preferred outcomes: legislative history usage does not affect the likelihood that a justice will arrive at his or her preferred outcome. Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal justices who were inclined to cite legislative history have been replaced by conservative justices who are not inclined to do so. David S. Law Administrative Law Courts Judges Legislation Politics Public Law and Legal Theory http://works.bepress.com/david_law/17 http://works.bepress.com/david_law/17 Wed, 19 Aug 2009 21:59:37 PDT Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court's use of a particular interpretive technique - namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed every opinion in every Supreme Court statutory interpretation case from 1953 through 2006 that involved a frequently interpreted federal statute. We also collected original data on the characteristics of each statute, including its age, length, complexity, obscurity, and the number of times that it had been amended. We then used logit regression analysis to evaluate the impact of these characteristics, as well as the ideological tilt of the justices and their opinions, on the likelihood that a justice would cite legislative history in a given opinion. We find overall that the use of legislative history is driven by a combination of legal and ideological factors. On the whole, the legal variables have a significantly larger impact on the likelihood of legislative history usage than the ideological variables, but the impact of the ideological variables cannot be dismissed. Statutes that are longer or more complex increase the likelihood of legislative history usage, whereas frequent amendment of a statute decreases that likelihood. The age of the statute also matters, but its effect is neither linear nor monotonic: very new and very old statutes are more likely to elicit legislative history usage than statutes of intermediate age. Majority opinions are significantly more likely to cite legislative history than dissenting opinions, which are in turn more than twice as likely to cite legislative history as concurring opinions. The evidence also suggests that the use of legislative history by one justice prompts other justices to respond in kind with legislative history arguments of their own. With respect to the impact of ideological factors, liberal justices are generally more likely than conservative justices to cite legislative history. We found no support, however, for the proposition that justices use legislative history instrumentally in order to reach their ideologically preferred outcomes: legislative history usage does not affect the likelihood that a justice will arrive at his or her preferred outcome. Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal justices who were inclined to cite legislative history have been replaced by conservative justices who are not inclined to do so. David S. Law Courts Judges Public Law and Legal Theory Law and Economics Legislation Administrative Law Politics http://works.bepress.com/david_law/16 http://works.bepress.com/david_law/16 Tue, 18 Aug 2009 23:08:54 PDT Much of the social science literature on judicial behavior has focused on the impact of ideology on how judges vote. For the most part, however, legal scholars have been reluctant to embrace empirical scholarship that fails to address the impact of legal constraints and the means by which judges reason their way to particular outcomes. This Article attempts to integrate and address the concerns of both audiences by way of an empirical examination of the Supreme Court's use of a particular interpretive technique - namely, the use of legislative history to determine the purpose and meaning of a statute. We analyzed every opinion in every Supreme Court statutory interpretation case from 1953 through 2006 that involved a frequently interpreted federal statute. We also collected original data on the characteristics of each statute, including its age, length, complexity, obscurity, and the number of times that it had been amended. We then used logit regression analysis to evaluate the impact of these characteristics, as well as the ideological tilt of the justices and their opinions, on the likelihood that a justice would cite legislative history in a given opinion. We find overall that the use of legislative history is driven by a combination of legal and ideological factors. On the whole, the legal variables have a significantly larger impact on the likelihood of legislative history usage than the ideological variables, but the impact of the ideological variables cannot be dismissed. Statutes that are longer or more complex increase the likelihood of legislative history usage, whereas frequent amendment of a statute decreases that likelihood. The age of the statute also matters, but its effect is neither linear nor monotonic: very new and very old statutes are more likely to elicit legislative history usage than statutes of intermediate age. Majority opinions are significantly more likely to cite legislative history than dissenting opinions, which are in turn more than twice as likely to cite legislative history as concurring opinions. The evidence also suggests that the use of legislative history by one justice prompts other justices to respond in kind with legislative history arguments of their own. With respect to the impact of ideological factors, liberal justices are generally more likely than conservative justices to cite legislative history. We found no support, however, for the proposition that justices use legislative history instrumentally in order to reach their ideologically preferred outcomes: legislative history usage does not affect the likelihood that a justice will arrive at his or her preferred outcome. Moreover, contrary to what some scholars have suggested, we also found no evidence that Justice Scalia has persuaded other justices to refrain from citing legislative history in their own opinions. Rather, the decline in the overall use of legislative history since the mid-1980s reflects a rightward shift in the ideological composition of the Court, as liberal justices who were inclined to cite legislative history have been replaced by conservative justices who are not inclined to do so. David S. Law Courts General Law Judges Public Law and Legal Theory Judicial Appointment & Behavior Judicial Politics Statutory Interpretation, Legislation http://works.bepress.com/jacqueline_mccormack/1 http://works.bepress.com/jacqueline_mccormack/1 Tue, 14 Jul 2009 20:25:59 PDT As the emerging markets of the Middle East continue to grow, the ability to trade goods internationally will help to solidify these ever increasing economic ties. This paper attempts to explain the theories and thought processes surrounding contracts for the sale of goods in Muslim countries. My purpose is to address the important similarities and differences between commercial contracts in the United States and commercial contracts in Muslim countries of the Middle East. Hopefully, by forging ever stronger trade relationships between the United States and the Middle East, these two culturally rich regions will learn to tolerate each other's differences while embracing each other's similarities. Jacqueline McCormack http://works.bepress.com/david_law/15 http://works.bepress.com/david_law/15 Sun, 17 May 2009 15:39:18 PDT The Supreme Court of Japan is widely considered the most conservative constitutional court in the world, and for good reason: in over fifty years of operation, it has struck down only eight laws on constitutional grounds. Drawing on interviews conducted in Japan with a variety of judges, officials, and scholars-including seven current and former members of the Supreme Court itself-this Article offers a political and institutional account of why the Court has failed to take an active role in the enforcement of Japan's postwar constitution. This account of the Court's behavior also yields a number of insights into the relationship between judicial politics and electoral politics and the role of institutional design in mediating between the two.The fact that the Court is conservative is perhaps only to be expected given its longtime immersion in a conservative political environment: the Liberal Democratic Party (LDP), Japan's center-right ruling party, has held power almost without interruption for half a century. Much of the LDP's influence over the Court is disguised, however, by the institutional design of the judiciary, which appears to enjoy a considerable degree of autonomy to manage its own affairs and even to decide who will serve on the Supreme Court. What the LDP has done is, in effect, to delegate political control of the judiciary to ideologically reliable agents within the judiciary itself-namely, the enormously powerful Chief Justice and his aides in the Court's administrative arm, the General Secretariat. Like the Chief Justice, the leaders of the General Secretariat are reliably orthodox jurists who have reached positions of power via a lifelong process of ideological vetting that all career judges must undergo. This group of judicial bureaucrats performs a wide range of sensitive activities ranging from the training and screening of new judges to the selection of Supreme Court law clerks, who are themselves successful career judges and exert a decidedly conservative influence on the Court.The Japanese experience holds valuable lessons for students of judicial politics and institutional design. There is no plausible way of designing or structuring a court so as to insulate it entirely from political influence. The institutional characteristics of the court can, however, determine how responsive it will be to its political environment. An obviously relevant characteristic is the frequency with which political actors-be they elected officials, voters, or some combination of the two-have the opportunity to shape the composition of the court. A less obvious, but no less relevant, characteristic is the extent to which power within the court is centralized or diffuse. The Japanese Supreme Court illustrates the importance of these characteristics: its organization and structure render it highly unlikely to depart from the wishes of the government for any meaningful period of time. The sheer number of seats on the Court, combined with a deliberate strategy of appointing justices close to mandatory retirement age, ensure a high degree of turnover that gives the government opportunities to adjust and correct the ideological direction of the Court on an ongoing basis. Similarly, the concentration of power in the hands of a single individual who is subject to replacement at relatively frequent intervals-namely, the Chief Justice-makes unnecessary sustained and repeated efforts to influence the behavior of the Court. David S. Law Comparative Law Constitutional Law Courts Judges Public Law and Legal Theory Judicial Appointment & Behavior Judicial Politics http://works.bepress.com/gmorris/6 http://works.bepress.com/gmorris/6 Tue, 11 Nov 2008 15:33:24 PST Thirty years ago, I wrote an article on mental health conservatorships in California and the role of counsel for persons for whom a conservatorship has been proposed. Data was gathered on the performance of attorneys in court hearings conducted in San Diego County Superior Court. The data revealed that lawyers representing proposed conservatees were inactive and ineffective in representing their clients' interests. The lawyers did not consider themselves advocates in an adversary process in which conservatorship was to be avoided. A year after the article was published, the California Supreme Court, citing that article as authority for the "paternalistic attitude" exhibited by appointed counsel for proposed conservatees, ruled that proof beyond a reasonable doubt and jury unanimity are constitutionally mandated standards necessary to assure that mental health conservatorships are accurately established. I have now replicated that study to determine whether the California Supreme Court's critique of attorney performance has significantly improved the representation of persons who have been proposed for mental health conservatorships. The data reveal that the quality of legal representation for proposed conservatees has not improved significantly. Stated simply, paternalism persists. The article explores reasons why the paternalistic model of legal representation continues today, despite the California Supreme Court's disapproval of such model in these cases 29 years ago, and what changes are needed to assure that individuals for whom a conservatorship has been proposed receive effective assistance of counsel in proceedings to establish a conservatorship. Grant H. Morris Civil Rights Constitutional Law Courts Health Law and Policy Human Rights Law Law and Society Medical Jurisprudence Professional Ethics Psychology and Psychiatry Law and Psychiatry http://works.bepress.com/sai_prakash/4 http://works.bepress.com/sai_prakash/4 Wed, 29 Oct 2008 08:06:06 PDT This paper argues that the Incompatibility Clause applies to the President. This precludes either Senator Obama or Senator McCain from becoming President and retaining a Senate seat. If they wish to become President, they must resign the Senate Saikrishna Prakash Constitutional Law http://works.bepress.com/sai_prakash/3 http://works.bepress.com/sai_prakash/3 Wed, 29 Oct 2008 07:58:59 PDT In the Constitution's earliest days, members of the House engaged in one of the nation's most momentous constitutional debates. While deliberating on the Department of Foreign Affairs bill, representatives considered the mechanisms for removing executive officers. The final Act conveyed no removal authority but discussed what would happen when the president removed the Secretary of Foreign Affairs. The traditional view of the Decision, voiced by James Madison, Alexander Hamilton, and William Howard Taft, is that because the Act conveyed no removal authority and laid out what would happen when the president removed, the Act presumed that the president had a preexisting constitutional power to remove executive officers. But there has long been a revisionist view that the Decision did not decide any constitutional question, certainly not in any definitive way. Citing a split in the House majority on a crucial amendment, Louis Brandeis, Edward Corwin, and others have claimed that the majority coalition that voted for the Foreign Affairs Act was deeply divided on constitutional principles. In particular, revisionists have asserted that about half of the majority that approved the Foreign Affairs bill rejected the view that the Constitution granted the president a removal power. Using evidence recently made accessible, this article argues that the traditional reading of the Decision is the correct one. A majority in the House and the Senate concluded that the Constitution's grant of executive power enabled the president to remove executive officers. Moreover, on two subsequent departmental bills, majorities in the House and the Senate voted to reaffirm the view that the executive power granted the president a removal power. The Decision of 1789 thus stands as the first significant legislative construction of the Constitution and as an exemplary episode when Congress approached its constitutional obligations with sophistication, sincerity, and deliberation. Sai Prakash Constitutional Law http://works.bepress.com/sai_prakash/2 http://works.bepress.com/sai_prakash/2 Wed, 29 Oct 2008 07:58:56 PDT This year marks the 200th anniversary of Marbury v. Madison, the case which is often taught in law schools as establishing judicial review. Despite the absence of any broader political controversy over the role of the Supreme Court, akin to that which existed during the Civil War or the New Deal periods, academics from both ends of the political spectrum have attacked the legitimacy of judicial review. Recent critics have even argued that the Constitution, as originally understood, did not authorize courts to refuse to enforce unconstitutional legislation.In this paper, we discuss the textual, structural, and historical roots of judicial review. First, we show that the constitutional text permits judicial review and we describe the severe difficulties associated with the claim that the Constitution is not law to be applied in the courts. Second, we explain that the constitutional structure requires the judiciary refuse to enforce laws that violate the Constitution due to its status as a coordinate branch of government. Simply put, the text and structure demand that the judiciary interpret and give effect to the Constitution in the course of performing its function of deciding Article III cases or controversies. Third, we refute the notion that the Founders did not understand the Constitution to establish judicial review. We trace how historical developments leading up to the ratification had made judicial review a familiar institution to the Founders, and we demonstrate that all those who discussed judicial review during ratification (there were dozens) agreed that the Constitution authorized judicial review. We conclude that those who argue that the Founders originally understood the Constitution to preclude judicial review have misread the historical record. John C. Yoo http://works.bepress.com/sai_prakash/1 http://works.bepress.com/sai_prakash/1 Wed, 29 Oct 2008 07:58:50 PDT Since Watergate, legal scholars have participated in a larger debate about the President's constitutional relationship to prosecutions. In particular, many legal scholars sought to debunk the received wisdom that prosecution was an executive function subject to presidential control. Revisionist scholars cited early statutes and practices meant to demonstrate that early presidents lacked control over prosecution. Among other things, scholars asserted that early presidents could not control either the federal district attorneys or the popular prosecutors who brought qui tam suits to enforce federal law. In fact, many of the revisionist claims are wrong and others are beside the point. Despite the lack of statutory authority over the district attorneys, early presidents directed the district attorneys in all sorts of prosecutorial matters. As authority for their superintendence, presidents cited their constitutional power over law execution. Moreover, there is no evidence that the statutes authorizing qui tams were meant to preclude presidential control over the qui tam suits. If English practice is any indication, the chief executive was understood to enjoy a great deal of control over popular prosecutors. Though there are many reasons to divorce the president from prosecution, this scheme does not have the imprimatur of early constitutional history. As a matter of the Constitution's original understanding, constitutional text, structure, and history establish that the President is the constitutional prosecutor of all federal offenses whether prosecuted by official or popular prosecutors. Sai Prakash Constitutional Law Jurisprudence Politics Public Law and Legal Theory