Category Archives: Courts

Fakers and Floodgates

Source: Sandra Sperino, Suja A. Thomas, Stanford Journal of Civil Rights and Civil Liberties, No. 10, 2014

From the abstract:
There has always been the possibility of judicial skepticism about employment discrimination claims. Recently, the Supreme Court made this skepticism explicit. In University of Texas Southwestern Medical Center v. Nassar, the Supreme Court expressed concern about fake claims and floodgates of litigation. It then used these arguments to tip the substantive law against retaliation claims. This article responds to this explicit skepticism about discrimination claims. First, it shows that the Court created reasons to limit retaliation claims that are not tied to congressional intent. Second, the factual claims that the Court makes are not grounded in evidence, and available information suggests the opposite conclusion. Third, a change to the substantive law will not prevent spurious claims. Fourth, the fakers and floodgates arguments could become accepted and embedded in judicial doctrine. Finally, it shows that Nassar is symptomatic of the broader issue that courts use procedure and substance to impede factually intensive civil rights claims.

Response: Conscious Congressional Overriding of the Supreme Court, Gridlock, and Partisan Politics

Source: James Buatti, Richard L. Hasen, University of California Irvine School of Law Research Paper No. 2014-67, November 24, 2014

From the abstract:
In a pathbreaking 1991 study of congressional overrides, Yale law professor William N. Eskridge found a rise during the 1970s and 1980s in the number of times that Congress consciously overrode Supreme Court interpretations of congressional statutes. As Eskridge explained his focus on deliberate congressional action, the term “override” does not “include statutes for which the legislative history — mainly committee reports and hearings — does not reveal a legislative focus on judicial decisions.” Replicating Eskridge’s methodology and updating the Eskridge study through 2012, we found that the number of conscious congressional overrides of Supreme Court statutory interpretations had fallen markedly after 1991 and had slowed during the Obama presidency to a trickle. The Hasen study suggested that increased party polarization in Congress was responsible for the decline in overrides since the Eskridge study, as well as for the shift from bipartisan overrides to more partisan overrides.

Now, in a fascinating and wide-ranging study published in the Texas Law Review, Matthew E. Christiansen and Professor Eskridge disagree with some of the conclusions of the Hasen study, both on the extent to which overrides have declined in the 1990s and also whether political polarization will likely keep the number of overrides low for the foreseeable future during periods of divided government.

The Christiansen-Eskridge study offers important and counterintuitive insights on the nature of congressional legislation enacted following Supreme Court statutory interpretation. However, as well explained by Professor Deborah Widiss in her perceptive analysis, the Christiansen-Eskridge study has shifted the meaning of “override” compared to the earlier Eskridge and Hasen studies. Instead of a study of conscious overrides, the Christiansen-Eskridge study uses new methodology to study cases in which congressional action consciously or unconsciously changed the understanding of a congressional statute as the Supreme Court had interpreted it. While unconscious overrides can be important to study for many reasons, they are less relevant for purposes of studying the Congress-Supreme Court dialogue.

Importantly, however, the Christiansen-Eskridge methodology also provides a much better way of identifying conscious overrides than the methodology used in either the original Eskridge or Hasen studies, and it has led us to add 25 additional conscious overrides to the 1991-2012 period of the Hasen study. Nonetheless, looking only at conscious overrides identified in the Hasen study and augmented by the later Christiansen-Eskridge study, we conclude that the Christiansen-Eskridge study mostly supports the two main claims of the Hasen study: (1) conscious overrides are on the decline, precipitously so in recent years and (2) partisan polarization is to blame.

This short Response makes four points. First, for purposes of measuring Congress-Supreme Court relations, it makes sense to limit a study of overrides to conscious overrides. Second, the Hasen study and Christiansen-Eskridge study, while differing in their particulars, are consistent in finding a marked decline in conscious overrides, especially during the Obama administration — a trend which has continued through 2014. Third, committee reports and legislative history surprisingly do not appear to have become a less reliable way of identifying overrides. Fourth, political polarization best explains the decline in conscious overrides, and there is good reason to believe the trend will continue during periods of divided government, with spurts of (conscious) overriding during periods of united government, until political polarization diminishes.

Making Schools More Separate and Unequal: Parents Involved in Community Schools v. Seattle School District No. 1

Source: Erwin Chemerinsky, University of California Irvine School of Law Research Paper No. 2014-59, November 20, 2014

From the abstract:
American public schools are increasingly separate and unequal. By every measure public schools are more becoming more racially segregated. The Supreme Court deserves a great deal of the blame for this. There has not been a single Supreme Court decision since Rodriguez in 1973 that has furthered desegregation or enhanced the equality of American public education. The Supreme Court’s major cases on equal educational opportunity – including Rodriguez, Milliken, Dowell, – have limited the ability of courts to create equal educational opportunity. But many schools boards on their own implemented plans to enhance racial diversity and desegregate their schools. In 2007, Parents Involved in Community Schools v. Seattle School Dist. No. 1, imposed significant, new limits on the ability of school systems to adopt such voluntary desegregation programs. Part I of this essay describes the Court’s decision in Parents Involved. Part II describes the effects of the decision on American public education. Part III explains why the decision is fundamentally flawed in its premises and its conclusions. Parents Involved must be understood in the context of now 40 years of Supreme Court decisions that have contributed to their being increasingly separate and unequal schools.

State Judicial Elections and Environmental Law: Case Studies of Montana, North Carolina, Washington and Wisconsin

Source: John D. Echeverria, Vermont Law School Research Paper No. 19-14, October 12, 2014

From the abstract:
This paper presents case studies of the judicial electoral process and its implications for environmental legal protections in four states: Montana, North Carolina, Washington, and Wisconsin. The paper builds on prior scholarship on judicial elections and on the efforts of special interests to secure the election or defeat of candidates for judicial office. It attempts to determine whether successful efforts to change the personnel sitting on specific state courts have, in fact, influenced subsequent rulings by these courts in environmental law cases. The paper concludes that the ideological orientation of a majority of the judges on a state’s highest court has a powerful influence on the court’s rulings in environmental law cases. In each of the four states studied, the outcomes of recent elections have had a demonstrable effect on the outcomes of subsequent environmental law cases.

10 U.S. Supreme Court Cases That Matter for State and Local Governments

Source: J.B. Wogan, Governing, October 3, 2014

The U.S. Supreme Court will hear cases this term related to religious freedom in state prisons, taxes on railway carriers, traffic stops and more. … The State and Local Legal Center (SLLC) has identified 10 cases, including Holt’s, that might affect state and local government. …
Related:
U.S. Supreme Court Questions Out-of-State Income Taxes
Source: Liz Farmer, Governing, November 12, 2014

The justices heard arguments Wednesday in a case that could cause localities across the country to lose millions in annual tax revenue.

Intrinsic Motivation in Public Service: Theory and Evidence from State Supreme Courts

Source: Elliott Ash, W. Bentley MacLeod, National Bureau of Economic Research (NBER), NBER Working Paper No. 20664, November 2014
(subscription required)

From the abstract:
This paper provides a theoretical and empirical analysis of the intrinsic preferences of state appellate court judges. We construct a panel data set using published decisions from state supreme court cases merged with institutional and biographical information on all (1,700) state supreme court judges for the 50 states of the United States from 1947 to 1994. We exploit variation in the employment conditions of judges over this period of time to measure the effect of these changes on a number of measures of judicial performance. The results are consistent with the hypothesis that judges are intrinsically motivated to provide high-quality decisions, and that at the margin they prefer quality over quantity. When judges face less time pressure, they write more well-researched opinions that are cited more often by later judges. When judges are up for election then performance falls, consistent with the hypothesis that election politics is time-consuming. These effects are strongest when judges have more discretion to select their case portfolio, consistent with psychological theories that posit a negative effect of contingency on motivation (e.g. Deci, 1971). Finally, the intrinsic preference for quality appears to be higher among judges selected by non-partisan elections than among those selected by partisan elections.

HOT TOPIC: Elections

Source: Capitol Ideas, Vol. 57 No. 5, September/October 2014

Articles include:
States Make Changes to Get Out the Vote
By Mary Branham
Ten states this year passed laws that would expand voter access, according to the Brennan Center for Justice. The most common improvements have been in online voter registration and other measures to modernize the voter registration system, as well as increasing early voting.

Voting System Technology a ‘Ticking Time Bomb’
By Kamanzi Kalisa
Voters want technology that matches what they are doing in their everyday lives. Current voting technology has become obsolete and, according to former Kentucky Secretary of State Trey Grayson, it’s “a ticking time bomb.”

Faceoff on Voter IDs
By Jennifer Horne
Since 2010, 13 states have passed more restrictive voter ID laws. With a 2013 Supreme Court ruling invalidating Section 5 of the 1965 Voting Rights Acts, challenges to these types of voter ID laws have moved to a new section of the act. Experts believe states should prepare for more lawsuits.

Going the Extra Mile for Military Voters
By Kim Wyman
Washington state currently has almost 4 million active registered voters. Nearly 65,000 of them are military or overseas voters. As secretary of state, it is my highest priority to make sure all of our registered voters have a chance to take part in our elections, no matter if they live in my state or serve in the most remote corners of the world. I have made advocacy of our military families a signature issue.

State Campaign Finance Laws: Show Me the Money
By Jennifer Ginn
Court challenges to national campaign finance laws, in the past, made few changes as to how and what politicians had to disclose. Supreme Court cases decided in the past seven years, however, are having a dramatic effect on campaign finance law. Many states are taking action on their own to ensure their voters know who is funding political races in their state.

Restoring the Right to Vote for Felons
By Liam Julian
The idea of disenfranchising felons has a long history in the United States, going all the way back to the colonies in the 1600s. Although a few states passed legislation in the past two years that make it harder for convicted felons to regain the right to vote, people in general and legislators specifically appear to be leaning toward making felony disenfranchisement laws more permissive.

Elections 101
By John G. Matsusaka
Ballot propositions are among the most visible features of American democracy. Since 2000, voters have decided 1,692 state-level ballot propositions covering a wide array of issues, including same-sex marriage, education, primary elections and marijuana legalization.

U.S. Elections: High Public Confidence, Low Voter Turnout
By David Carroll
Over the last 25 years, the Carter Center has observed nearly 100 elections in 38 countries around the world. These experiences have generated a wealth of information about electoral practices across the globe. In addition, they provide an interesting basis to compare how elections are conducted in the U.S.

Justice Should be Accessible by All
By Cheri Beasley
North Carolina is one of 22 states that elect trial judges by judicial district and appellate judges and justices in statewide elections. Judicial elections in the state were partisan until 2002; now, all judicial elections are nonpartisan by popular vote. North Carolina is at a crossroads. In nonpartisan judicial elections, advancement of a partisan or ideological agenda has no place in the fair application of the rule of law. Special interest money spent to determine the outcome of cases before the court is abominable and the people of North Carolina deserve better.

Global Measures of Electoral Credibility: Voter Turnout, Finance
By Ayesha Chugh and Hani Zainulbhai
Global measures of electoral credibility include voter participation and political finance. While these variables are useful, electoral credibility is ultimately a nuanced concept that requires consideration of the full context of an election.

10 Questions–Oregon Works to Make Every Voice Heard
By Mary Branham
Kate Brown believes “your vote is your voice,” and she’s taken steps as secretary of state to ensure every voice in Oregon is heard. The state has a relatively high voter turnout, but Brown thinks it should be higher.

By the Book–State Elections Performance
Nearly 60 percent of eligible voters cast ballots in the 2012 presidential elections, below the high mark in 2008 but still above most presidential elections. Five of the 10 states with the highest turnout have election day registration.

Models for Change: Systems Reform in Juvenile Justice

Source: Justice Policy Institute, 2014

Launched in 2004, Models for Change is a multi-state initiative working to guide and accelerate advances to make juvenile justice systems more fair, effective, rational and developmentally appropriate. Capitalizing on a unique historic opportunity to regenerate juvenile justice in America, the initiative promotes a broader movement of reform based in research and evidence of what works to improve outcomes for kids and communities, while holding young people accountable for their behavior.
Models for Change supports a network of government and court officials, legal advocates, educators, community leaders, and families working together to ensure that kids who make mistakes are held accountable and treated fairly throughout the juvenile justice process.Through modelsforchange.net, the initiative provides research-based tools and techniques to make juvenile justice more fair, effective, rational and developmentally appropriate.

Reform areas:
Targeted juvenile justice leverage points where success triggers broader reforms. Work in the reform areas has been the focus of the initiative’s original core states, action networks and resource centers.

Aftercare
Community-based alternatives
Dual status youth
Evidence-based practices
Juvenile indigent defense
Mental health
Status offense reform
Racial and ethnic fairness/Disproportionate minority contact

Related:
Why Juvenile Justice Matters To County Human Services Agencies
Source: National Association of Counties (NACo), July 2014

Cost-Benefit Analysis of Adult Drug Courts

Source: Iowa Legislative Services Agency (LSA), Fiscal Services Division, Issue Review, December 20, 2013

This Issue Review provides a summary of national and Iowa research on the effectiveness of Adult Drug Courts, an overview of these programs currently operating in Iowa, including a description of offenders served and funding mechanisms, an analysis of the costs and benefits of the Adult Drug Courts operated by Community-Based Corrections, and the estimated need for funding. … The DOC issued a report in May 2012, Return on Investment: Evidence-Based Options to Improve Outcomes. The report reviews Adult Drug Courts that use the judicial model and indicates these have a positive return on investment; every $1.00 spent on the program returns a $9.61 benefit over a ten year time frame. These calculations are in 2011 dollars and are based on high risk offenders being diverted from prison. …

Cumulative Disadvantage: Examining Racial And Ethnic Disparity In Prosecution And Sentencing

Source: Besiki L. Kutateladze, Nancy R. Andiloro, Brian D. Johnson and Cassia C. Spohn, Issue
Criminology, Vol. 52 no. 3, August 2014

(subscription required)

From the abstract:
Current research on criminal case processing typically examines a single decision-making point, so drawing reliable conclusions about the impact that factors such as defendants’ race or ethnicity exert across successive stages of the justice system is difficult. Using data from the New York County District Attorney’s Office that tracks 185,275 diverse criminal cases, this study assesses racial and ethnic disparity for multiple discretionary points of prosecution and sentencing. Findings from multivariate logistic regression analyses demonstrate that the effects of race and ethnicity vary by discretionary point and offense category. Black and Latino defendants were more likely than White defendants to be detained, to receive a custodial plea offer, and to be incarcerated—and they received especially punitive outcomes for person offenses—but were more likely to benefit from case dismissals. The findings for Asian defendants were less consistent but suggest they were the least likely to be detained, to receive custodial offers, and to be incarcerated. These findings are discussed in the context of contemporary theoretical perspectives on racial bias and cumulative disadvantage in the justice system.