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Public Opinion As a Meager Influence in Shaping Contemporary Supreme Court Decision Making
Michigan Law Review Volume 109 Issue 6 2011 But How Will the People Know? Public Opinion as a Meager Influence in Shaping Contemporary Supreme Court Decision Making Tom Goldstein SCOTUSblog Amy Howe SCOTUSblog Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Constitutional Law Commons, Judges Commons, Law and Society Commons, Legal History Commons, and the Supreme Court of the United States Commons Recommended Citation Tom Goldstein & Amy Howe, But How Will the People Know? Public Opinion as a Meager Influence in Shaping Contemporary Supreme Court Decision Making, 109 MICH. L. REV. 963 (2011). Available at: https://repository.law.umich.edu/mlr/vol109/iss6/7 This Review is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. BUT HOW WILL THE PEOPLE KNOW? PUBLIC OPINION AS A MEAGER INFLUENCE IN SHAPING CONTEMPORARY SUPREME COURT DECISION MAKING Tom Goldstein* Amy Howe** THE WILL OF THE PEOPLE: How PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION. By Barry Friedman.New York: Farrar, Straus and Giroux. 2009. Pp. 614. $35. INTRODUCTION Chief Justice John Roberts famously described the ideal Supreme Court Justice as analogous to a baseball umpire, who simply "applies" the rules, rather than -
Notes and Sources for Evil Geniuses: the Unmaking of America: a Recent History
Notes and Sources for Evil Geniuses: The Unmaking of America: A Recent History Introduction xiv “If infectious greed is the virus” Kurt Andersen, “City of Schemes,” The New York Times, Oct. 6, 2002. xvi “run of pedal-to-the-medal hypercapitalism” Kurt Andersen, “American Roulette,” New York, December 22, 2006. xx “People of the same trade” Adam Smith, The Wealth of Nations, ed. Andrew Skinner, 1776 (London: Penguin, 1999) Book I, Chapter X. Chapter 1 4 “The discovery of America offered” Alexis de Tocqueville, Democracy In America, trans. Arthur Goldhammer (New York: Library of America, 2012), Book One, Introductory Chapter. 4 “A new science of politics” Tocqueville, Democracy In America, Book One, Introductory Chapter. 4 “The inhabitants of the United States” Tocqueville, Democracy In America, Book One, Chapter XVIII. 5 “there was virtually no economic growth” Robert J Gordon. “Is US economic growth over? Faltering innovation confronts the six headwinds.” Policy Insight No. 63. Centre for Economic Policy Research, September, 2012. --Thomas Piketty, “World Growth from the Antiquity (growth rate per period),” Quandl. 6 each citizen’s share of the economy Richard H. Steckel, “A History of the Standard of Living in the United States,” in EH.net (Economic History Association, 2020). --Andrew McAfee and Erik Brynjolfsson, The Second Machine Age: Work, Progress, and Prosperity in a Time of Brilliant Technologies (New York: W.W. Norton, 2016), p. 98. 6 “Constant revolutionizing of production” Friedrich Engels and Karl Marx, Manifesto of the Communist Party (Moscow: Progress Publishers, 1969), Chapter I. 7 from the early 1840s to 1860 Tomas Nonnenmacher, “History of the U.S. -
Presidential Signing Statements: Will Congress Pick up the Gauntlet?
June 26, 2006 PRESIDENTIAL SIGNING STATEMENTS: WILL CONGRESS PICK UP THE GAUNTLET? David H. Remes Gerard J. Waldron ∗ Shannon A. Lang Presidential “signing statements” – formal expressions of the views of a President regarding legislation that he has just signed into law – are nearly as old as the Republic. Although previous Presidents issued signing statements, not until the Reagan Administration did they begin using such statements system- atically to influence judicial interpretation or, most recently, to declare legisla- tion non-binding on the Executive. The use of presidential signing statements to influence judicial interpreta- tion, pioneered by President Reagan, has proven ineffectual: Judges who look to legislative history at all place little weight on signing statements. The use of signing statements to deny effect to legislation, however, immediately alters the relationship between the Executive, on the one hand, and Congress and the judi- ciary, on the other. Article I of the Constitution gives Congress the last word as to whether a law will take effect, subject to judicial review, by empowering Congress to over- ride a presidential veto. When the President issues a signing statement refusing to give effect to a law, the President usurps the powers of Congress by circum- venting the Constitution’s provision for overriding presidential vetoes, and by effectively asserting unilateral power to repeal and amend legislation. Similarly, when the President denies effect to legislation because he con- siders it unconstitutional, the President displaces the judiciary as the final ex- positor of the Constitution and undermines the principle of judicial review that is crucial to our system of checks and balances. -
Episode 55 Emily Bazelon Hello and Welcome to Episode 55 of The
Episode 55 Emily Bazelon Hello and welcome to Episode 55 of the Decarceration Nation podcast, a podcast about radically reimagining America's criminal justice system. I'm Josh Hoe, among other things, I'm formerly incarcerated a freelance writer, a criminal justice reform advocate and the author of the book, writing your own best story addiction and living hope. We'll get to my interview with Emily basil on in just a second. But first, the news: I have not told many people this but I'll share this with you here first. I've just been offered and taken a new position as the policy analyst was safe and just Michigan. This was a job I just could not say no to. I believe we can create change that affects the largest number of people here at the state level. And Michigan is and has been for a long time my home. I'm very excited to start working this month with safe and just Michigan. Nothing will change about the podcasts and they are luckily fully supportive of me continuing this work. I'm really thrilled to be starting this new adventure. And just a few months, it'll be six years since release, it took a long time to get back to a full time job. Thanks again to safe and just Michigan for giving me this opportunity and all the people and it would take an hour for me to thank everybody who has supported me over the last you know, almost six years since my release. -
Jurisprudence Diagramming Sentences by Emily Bazelon
Print jurisprudence Diagramming Sentences The Supreme Court's war on sentencing guidelines. By Emily Bazelon Posted Tuesday, Jan. 23, 2007, at 6:43 PM ET Sentencing is supposed to be the straightforward moment in a criminal trial—easy arithmetic compared to the subjective assessments of jurors and attorneys. But ever since the Supreme Court got into the sentencing biz back in 2000, sentencing has been a mess. The court struck down federal mandatory sentencing guidelines in 2005, and some state guidelines have fallen as well. And in a 6-3 decision Monday, the justices killed the California sentencing guidelines. The California case is the latest battle in a strange war that has turned natural judicial enemies into allies, set Congress against the courts, and given law professors a new life's work. Some of the justices probably have had their eye on easing the sentencing load on defendants, more and more of whom have been getting locked up for longer and longer periods. But the court can't make pro-defendant reform its explicit aim—that sort of policy decision is the legislature's job, after all, and in any case the cobbled- together majority behind the recent decisions would never hold together. So, for now, at least, the court's war on sentencing has enraged the lower courts and left the law in a shambles. These cases showcase destruction—this is what it looks like when the Supreme Court lays waste. The 2000 case that got the court started, Apprendi v. New Jersey, seemed to unveil a new constitutional right. -
Angry Judges
Angry Judges Terry A. Maroney* Abstract Judges get angry. Law, however, is of two minds as to whether they should; more importantly, it is of two minds as to whether judges’ anger should influence their behavior and decision making. On the one hand, anger is the quintessentially judicial emotion. It involves appraisal of wrongdoing, attribution of blame, and assignment of punishment—precisely what we ask of judges. On the other, anger is associated with aggression, impulsivity, and irrationality. Aristotle, through his concept of virtue, proposed reconciling this conflict by asking whether a person is angry at the right people, for the right reasons, and in the right way. Modern affective psychology, for its part, offers empirical tools with which to determine whether and when anger conforms to Aristotelian virtue. This Article weaves these strands together to propose a new model of judicial anger: that of the righteously angry judge. The righteously angry judge is angry for good reasons; experiences and expresses that anger in a well-regulated manner; and uses her anger to motivate and carry out the tasks within her delegated authority. Offering not only the first comprehensive descriptive account of judicial anger but also first theoretical model for how such anger ought to be evaluated, the Article demonstrates how judicial behavior and decision making can benefit by harnessing anger—the most common and potent judicial emotion—in service of righteousness. Introduction................................................................................................................................ -
Recommendations for the New Supreme Court Pro Bono Bar and Public Interest Practice Communities
\\jciprod01\productn\N\NYU\86-1\NYU103.txt unknown Seq: 1 29-MAR-11 18:27 COUNTERBALANCING DISTORTED INCENTIVES IN SUPREME COURT PRO BONO PRACTICE: RECOMMENDATIONS FOR THE NEW SUPREME COURT PRO BONO BAR AND PUBLIC INTEREST PRACTICE COMMUNITIES NANCY MORAWETZ* The emergence of a new Supreme Court Pro Bono Bar, made up of specialty prac- tices and law school Supreme Court clinics, has altered the dynamic of litigation related to public interest issues. The new Bar often brings expertise in Supreme Court litigation to cases where there may otherwise be a dearth of resources to support high quality lawyering. But at the same time, this new Bar is subject to market pressures that have important consequences. This Article shows how mem- bers of this new Bar are engaged in a race for opportunities to handle Supreme Court cases on the merits. At the certiorari stage, this Bar can be expected to engage in truncated case analysis, avoid coordination with lawyers handling similar cases, and otherwise make decisions that are influenced by each firm’s interest in being in a position to handle cases on the merits before the Supreme Court. Moreover, throughout the litigation, this Bar may be influenced by the merits opportunity that provided the incentive to take the case in the first place. This Article explores the implications of this new dynamic in Supreme Court litigation for both pro bono practices and public interest practice communities. With respect to pro bono prac- tices, this Article proposes principles that firms could adopt, including those that relate to the selection of cases for free representation and those that relate to the nature of representation that the pro bono practices provide once the firm has taken on representation. -
Truthiness and the Marble Palace
Emory Law Scholarly Commons Emory Law Journal Online Journals 2016 Truthiness and the Marble Palace Chad M. Oldfather Todd C. Peppers Follow this and additional works at: https://scholarlycommons.law.emory.edu/elj-online Recommended Citation Chad M. Oldfather & Todd C. Peppers, Truthiness and the Marble Palace, 65 Emory L. J. Online 2001 (2016). Available at: https://scholarlycommons.law.emory.edu/elj-online/17 This Essay is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory Law Journal Online by an authorized administrator of Emory Law Scholarly Commons. For more information, please contact [email protected]. OLDFATHER_PEPPERS GALLEYSFINAL 1/13/2016 10:12 AM TRUTHINESS AND THE MARBLE PALACE Chad M. Oldfather* Todd C. Peppers** INTRODUCTION Tucked inside the title page of David Lat’s Supreme Ambitions, just after a note giving credit for the cover design and before the copyright notice, sits a standard disclaimer of the sort that appears in all novels: “This is a work of fiction. Names, characters, places, and events either are the products of the author’s imagination or are used fictitiously. Any resemblance to actual persons, living or dead, events or locales is entirely coincidental.”1 These may be the most truly fictional words in the entire book. Its judicial characters are recognizable as versions of real judges, including, among others, Alex Kozinski, Goodwin Liu, Stephen Reinhardt, Antonin Scalia, and Clarence Thomas. Real-life bloggers including Tom Goldstein and Howard Bashman appear as themselves,2 and a blog called Beneath Their Robes, a clear reference to the blog that was Lat’s initial claim to fame3 (this time run by one of the protagonist’s bitter rivals) play a pivotal role in the plot.4 Supreme Ambitions’ observations about judging, clerking, prestige and the culture of elite law schools likewise reflect core truths, albeit via storylines and characters that are often exaggerated almost to the point of caricature. -
The Roles of Litigation in American Democracy
Emory Law Journal Volume 65 Issue 6 The 2015 Pound Symposium — The "War" on the U.S. Civil Justice System (Co- Sponsored by the Pound Civil Justice Institute and Emory University School of Law) 2016 The Roles of Litigation in American Democracy Alexandra D. Lahav Follow this and additional works at: https://scholarlycommons.law.emory.edu/elj Recommended Citation Alexandra D. Lahav, The Roles of Litigation in American Democracy, 65 Emory L. J. 1657 (2016). Available at: https://scholarlycommons.law.emory.edu/elj/vol65/iss6/12 This Articles & Essays is brought to you for free and open access by the Journals at Emory Law Scholarly Commons. It has been accepted for inclusion in Emory Law Journal by an authorized editor of Emory Law Scholarly Commons. For more information, please contact [email protected]. LAHAV GALLEYSPROOFS2 6/13/2016 1:15 PM THE ROLES OF LITIGATION IN AMERICAN DEMOCRACY ∗ Alexandra D. Lahav ABSTRACT Adjudication is usually understood as having two functions: dispute resolution and law declaration. This Article presents the process of litigation as a third, equally important function and explains how in litigation, participants perform rule of law values. Performativity in litigation operates in five ways. First, litigation allows individuals, even the most downtrodden, to obtain recognition from a governmental officer (a judge) of their claims. Second, it promotes the production of reasoned arguments about legal questions and presentation of proofs in public, subject to cross-examination and debate. Third, it promotes transparency by forcing information required to present proofs and arguments to be revealed. Fourth, it aids in the enforcement of the law in two ways: by requiring wrongdoers to answer for their conduct to the tribunal and by revealing information that is used by other actors to enforce or change existing regulatory regimes. -
The Future of Reputation: Gossip, Rumor, and Privacy on the Internet
GW Law Faculty Publications & Other Works Faculty Scholarship 2007 The Future of Reputation: Gossip, Rumor, and Privacy on the Internet Daniel J. Solove George Washington University Law School, [email protected] Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Solove, Daniel J., The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (October 24, 2007). The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, Yale University Press (2007); GWU Law School Public Law Research Paper 2017-4; GWU Legal Studies Research Paper 2017-4. Available at SSRN: https://ssrn.com/abstract=2899125 This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. Electronic copy available at: https://ssrn.com/ abstract=2899125 The Future of Reputation Electronic copy available at: https://ssrn.com/ abstract=2899125 This page intentionally left blank Electronic copy available at: https://ssrn.com/ abstract=2899125 The Future of Reputation Gossip, Rumor, and Privacy on the Internet Daniel J. Solove Yale University Press New Haven and London To Papa Nat A Caravan book. For more information, visit www.caravanbooks.org Copyright © 2007 by Daniel J. Solove. All rights reserved. This book may not be reproduced, in whole or in part, including illustrations, in any form (beyond that copying permitted by Sections 107 and 108 of the U.S. -
Social Norms, Shame, and Regulation in an Internet Age Kate Klonick
Maryland Law Review Volume 75 | Issue 4 Article 4 Re-Shaming the Debate: Social Norms, Shame, and Regulation in an Internet Age Kate Klonick Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Internet Law Commons, and the Law and Society Commons Recommended Citation 75 Md. L. Rev. 1029 (2016) This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. RE-SHAMING THE DEBATE: SOCIAL NORMS, SHAME, AND REGULATION IN AN INTERNET AGE * KATE KLONICK Advances in technological communication have dramatically changed the ways in which social norm enforcement is used to constrain behavior. Nowhere is this more powerfully demonstrated than through current events around online shaming and cyber harassment. Low cost, anonymous, instant, and ubiquitous access to the Internet has removed most—if not all—of the natural checks on shaming. The result is norm enforcement that is indeterminate, uncalibrated, and often tips into behavior punishable in its own right—thus generating a debate over whether the state should intervene to curb online shaming and cyber harassment. A few years before this change in technology, a group of legal scholars debated just the opposite, discussing the value of harnessing the power of social norm enforcement through shaming by using state shaming sanctions as a more efficient means of criminal punishment. Though the idea was discarded, many of their concerns were prescient and can inform today’s inverted new inquiry: whether the state should create limits on shaming and cyber bullying. -
On Being a Black Lawyer 2013 Power
2013 SALUTES THE MOSTBLACK INFLUENTIAL LAWYERS IN THE NATION 100 AND DIVERSITY ADVOCATES CONGRATULATIONS TO OUR POWER 100 HONOREES WE SALUTE OUR AFRICAN AMERICAN PARTNERS We salute Chief Diversity Officer Theresa Cropper and Firmwide Executive Committee Chair Laura Neebling for being recognized as Power 100 honorees. As a Pipeline Builder, Ms. Cropper has invested in the diversity pipeline throughout her career and prepared students at every level to pursue their dreams. As an Advocate, Ms. Neebling has championed diversity and inclusion at the firm and lent her leadership to initiatives that advance the cause. Perkins Coie is proud of their contributions and extends warmest congratulations to them both. ALLEN CANNON III DENNIS HOPKINS SEAN KNOWLES RICHARD ROSS Government Contracts, Washington, D.C. Commercial Litigation, New York Commercial Litigation, Seattle Business, New York PHILIP THOMPSON LINDA WALTON JAMES WILLIAMS BOBBIE WILSON Labor, Bellevue Labor, Seattle Commercial Litigation, Seattle Commercial Litigation, San Francisco THERESA CROPPER LAURA NEEBLING Chief Diversity Officer Chair, Firmwide Executive Committee At Perkins Coie, we believe that diversity is a key ingredient to success. We benefit from diverse perspectives that allow us to deliver excellent counsel to our clients. At Perkins Coie, Diversity is a Key Ingredient. We support On Being a Black Lawyer in recognizing the contributions of the Power 100 (2013) honorees. ANCHORAGE · BEIJING · BELLEVUE · BOISE · CHICAGO · DALLAS · DENVER ANCHORAGE · BEIJING · BELLEVUE · BOISE · CHICAGO · DALLAS · DENVER LOS ANGELES · MADISON · NEW YORK · PALO ALTO · PHOENIX · PORTLAND LOS ANGELES · MADISON · NEW YORK · PALO ALTO · PHOENIX · PORTLAND SAN DIEGO · SAN FRANCISCO · SEATTLE · SHANGHAI · TAIPEI · WASHINGTON, D.C. SAN DIEGO · SAN FRANCISCO · SEATTLE · SHANGHAI · TAIPEI · WASHINGTON, D.C.