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Secularization of th...
Journal Article
M. M. Lasley
Revista Hispánica Moderna
A?o 34, No. 1/2, Homenaje a Federico de Onís () Volumen I (Jan. - Apr., 1968), pp. 330-337
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Stable URL: http://www.jstor.org/stable/
Page Count: 8
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Secularization
Religious poetry
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AbstractIn this Article, we offer a fuller jurisprudential analysis of the gatekeeping choices that the Justices make as they set the direction in which the Court will proceed. Using more recent data that we gathered from the docket books of Justices Brennan and Marshall, we show that rule-based and strategic factors, while undeniably important, cannot adequately account for the Justices’ voting behavior at the certiorari stage. Although the Justices consider the very same cases and materials, in light of the same criteria set out in the Court’s rule, they come to quite different conclusions about which cases merit plenary review. Even Justices closely aligned in decisions on the merits often have dramatically different voting records on certiorari. We suggest that other, more jurisprudential considerations also affect the individual Justices’ judgments about the quantity and content of the Court’s proper workload. In particular, we contend that a Justice’s views about what role the Supreme Court should play in the judicial system and American life—including his or her views on the nature of precedent, the importance of uniformity in federal law, and the Court’s appropriate role in effectuating social change—play a central role in shaping his or her decisions about case selection.Do you want to read the rest of this article?
CitationsCitations22ReferencesReferences3This may include & aggressive grants & and & defensive denials & of cases formally considered for certiorari as well as strategic maneuverings involving the Court's & discussion list. & With regard to the Court's case selection process, the justices have often been described as operating & nine little law firms & (see Cordray & Cordray 2004). ABSTRACT: In political science, the well-known “attitudinal model” of legal decision making dictates that judges' sincere policy preferences drive legal outcomes. In contrast, the celebrated “selection hypothesis” from the law and economics literature suggests that litigants carefully consider factors affecting potential case success (including judicial ideology) and accordingly choose, in the name of efficiency, to settle or not pursue cases in which legal outcomes can be readily predicted. Thus, judges end up adjudicating a nonrandom set of cases that, in the typical situation, should not lend themselves to ideological judicial decision making. From this perspective, the influence of Supreme Court justices' ideological preferences on outcomes could be obviated by the forward-thinking decisions of mindful litigants. We are left with two dominant theories on jurisprudential outcomes that appear to be at odds with each other. We endeavor to address this situation by incorporating litigation case sorting considerations into a basic attitudinal account of Supreme Court justice decision making in environmental cases. Our primary thesis is that the influence of judicial ideology on legal outcomes is conditioned on case sorting decisions (by both litigants and justices) that precede the justices' voting decisions on the merits. We augment our assessment of this thesis by evaluating our basic model on a subset of cases involving the Court's most formidable litigator—the federal government. We find that in both scenarios, the influence of justices' attitudes on their merits voting is indeed conditioned on case sorting. We conclude that the effect of justices' attitudes on Supreme Court policy making likely works in both direct and indirect ways in that their known ideological proclivities may lead to the strategic sorting of cases for Supreme Court adjudication. Full-text · Article · Dec 2013 The Supreme Court has discretion over the cases it hears. Before the Supreme Court reviews a lower court's (e.g., a U.S. Circuit Court of Appeals) decision, a certiorari petition must be filed and granted (Cordray & Cordray, 2004) In their Eleventh Circuit petition, the United States asked the Supreme Court to consider whether Congress had the constitutional authority to enact the mandate. A second question was whether the challenges to the individual mandate should be barred by the Anti- Injunction Act—a federal law that would block any cases challenging the individual mandate until after 2014, when the penalties are actually assessed. ABSTRACT: The Patient Protection and Affordable Care Act (ACA) of 2010 is landmark legislation designed to expand access to health care for virtually all legal U.S. residents. A vital but controversial provision of the ACA requires individuals to maintain health insurance coverage or face a tax penalty-the individual mandate. We examine the constitutionality of the individual mandate by analyzing relevant court decisions. A critical issue has been defining the &activities& Congress is authorized to regulate. Some judges determined that the mandate was constitutional because the decision to go without health insurance, that is, to self-insure, is an activity with substantial economic effects within the overall scheme of the ACA. Opponents suggest that Congress overstepped its authority by regulating &inactivity,& that is, compelling people to purchase insurance when they otherwise would not. The U.S. Supreme Court is set to review the issues and the final ruling will shape the effectiveness of health reform. Full-text · Article · Mar 2012 The key point here is that justices' strategic thinking is not limited to the cooperation problem the dispositional majority will face. They are rational, and will thus also consider their potential influence on the solution to the coordination problem and its doctrinal implications, and cast their cert vote accordingly (Cordray and Cordray, 2004). When the Court exercises its gate keeping function, the individual justices act in a rational fashion – they consider their future goals, including opinion writing, before casting their vote on certiorari. ABSTRACT: Justices on the US Supreme Court are rational and therefore strategic policymakers. Yet, how rational are they? How far into the future would their strategic considerations reach? Due to potential influence on both policy and doctrine, ceteris paribus they find opinion
when selecting cases, in addition to thinking about legal issues and the final disposition, justices strategically consider opinion crafting. To overcome the measurement error inherent to the estimation of rational behavior of the type proposed here, the Simulation Extrapolation protocol is introduced. There is strong support for the notion of doctrine-minded justices at cert. The social implications of such rational behavior are far- employing this strategy, over the course of her time in office, a justice would be able to considerably influence several policy and legal issues. In closing, implications of strategic behavior on the individual-justice level for the constitutional position of the Court within American society are discussed. Full-text · Article · Nov 2011 ABSTRACT: A supreme discretion and a passivity conundrum: Strategic agenda-setting on the US Supreme CourtArticle · Washington and Lee law reviewABSTRACT: Every year, the United States Supreme Court decides a small handful of high-profile cases that tend to define the Court's Term, and also disproportionately shape its perceived role in American life. These cases, which may present critical struggles over the distribution of political power, as well as socially divisive issues such as religious freedom, free speech, property rights, abortion, and civil rights, not only determine how the public views the Court, but can also frame the broader cultural debate by pushing these issues to the forefront of political discourse. The Court's decisions on whether and when to review these more politically charged cases thus have significant ramifications for the Court and for the country's social agenda. When the Court decides to hear a case involving gay rights, for example, the Court immediately raises the salience of that issue, and potentially places it in the center of the political debate. Quite apart from the Court's eventual resolution of that particular case on its merits, the very determination to hear oral argument and decide the case stands as an influential landmark in its own right. In this Article, we consider whether the Justices act differently in deciding to grant these high-profile cases than they do in more ordinary cases. In reviewing petitions for certiorari, the Justices undoubtedly recognize that certain types of cases present more ideologically charged *Article · Washington and Lee law reviewABSTRACT: Throughout its history, the Supreme Court has struggled to control its caseload and to avoid becoming a court of error correction. Instead, it applies its resources to matters of particular national importance and to promoting uniformity in the law. This Article argues that the Court's approach to maintaining uniformity fails to provide adequate guidance to the lower courts. The Court focuses on resolving disagreements among the lower courts over what rules and standards to apply. But the Court largely ignores the question of whether those directives are applied in a consistent or predictable way. As a result, there are areas of law, particularly areas governed by standards (as opposed to rules), that are chaotic and unpredictable. This Article explains the historic and institutional reasons for the Court's approach and discusses its consequences. Specifically, the Article demonstrates that without guidance about how to apply standards, lower court judges, particularly in fact-intensive areas of law with large numbers of cases, may find it difficult or impossible to identify all factually analogous precedents, leading to incoherent and inconsistent results. The Article uses the law of summary judgment in employment discrimination as an extended example of this phenomenon. Finally, the Article proposes a new approach for the Supreme Court. The Article explores three particular mechanisms, each of which requires the Court to apply standards itself. These mechanisms rely on some of the traditional strengths of common law judging, and they provide the Court with valuable tools to promote the rule of law values of uniformity and predictability in the lower courts.Article · Jul 2006 ArticleEvery year, the United States Supreme Court decides a small handful of high-profile cases that tend to define the Court's Term, and also disproportionately shape its perceived role in American life. These cases, which may present critical struggles over the distribution of political power, as well as socially divisive issues such as religious freedom, free speech, property rights, abortion,... ArticleArticleJanuary 2010Over the last two decades, as the Supreme Court has sharply cut back its case load, the Solicitor General has wielded the tremendous influence that comes with being the Court’s most frequent and successful litigant in new ways. In this Article, the authors examine both the causes and consequences of these changes, which have diminished the Solicitor General’s role at the certiorari stage and... ArticleJune 2008Commentators frequently criticize the rules governing appellate review of interlocutory orders in the federal courts. Many have contended that the existing regime - consisting of statutory, rule-based, and judge-made exceptions to the final judgment rule - is incoherent and inefficient. The fashionable response to these perceived woes is to vest in the circuit courts discretion to decide which... Data provided are for informational purposes only. Although carefully collected, accuracy cannot be guaranteed. Publisher conditions are provided by RoMEO. 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