The Preemptive Power of State Supreme Courts: Adoption of Abortion and Death Penalty Legislation

We offer a theory about public policy adoption that depicts a game between state supreme courts and state policymakers. We hypothesize that court ideological hostility or friendliness operates to discourage or encourage policy enactment, with the likelihood of subsequent court intervention magnifying the relationship. To test the argument we examine the influence of court ideology on the enactment of state abortion and death penalty laws since the 1970s. Empirical analyses provide strong support for our theory, indicating that court ideological hostility or friendliness significantly influenced state abortion and death penalty policy enactments. In addition, the likelihood of court intervention conditioned this relationship, with the most pronounced effect occurring where subsequent court review was mandatory. The findings reveal courts exert important preemptive influence on law without hearing a case. This facet of judicial influence expands the traditional view of actors involved in the policymaking process.     

Court-day crowds in colonial Virginia

ABSTRACT

For a generation, legal historians investigating colonial Virginia have emphasized the dramaturgy of court day. According to the dramaturgical school of interpretation, administrative and judicial activities of county court officials amounted to theatrical performances that simultaneously enforced economic order and stabilized traditional social relationships. Such interpretations assume a large audience routinely attended county courts to observe legal dramas. Often, however, only a small number of persons can be documented as present during court day. The independence theorem from probability theory suggests that the number of documentable attendees is a useful and easily calculated estimate for actual total crowd size. If so, some Virginia court sessions were attended by hundreds of people, while others drew only a few participants. A variety of factors apparently inhibited court attendance in older Virginia counties. By contrast, in newer frontier counties, mid-eighteenth-century revisions of court calendars produced heavy attendance at court day. Regardless of the number of people in attendance, any Virginia county court could still effectively enforce credit contracts.     

Checking Executive Power: A Simulation Model of Unilateral Executive Behavior

Abstract

What systematic influence does the court exert on unilateral authority? Though questions relating to the expansion and the exercise of unilateral executive power remain a perennial concern in political science, existing studies of the unilateral presidency generally focus on relations between the executive and the legislature, with less attention paid to the impact of the judiciary on executive behavior. Using a system of differential equations to model executive unilateralism and judicial constraints, simulation results identified four broad patterns of unilateral executive behavior and judicial influence. Overall, presidents strategically anticipate reactions from the courts and employ unilateral actions accordingly. Although they are cognizant of the court’s ability to strike down their actions, and thereby harming their preferred policy preferences and legacies, presidents nonetheless act unilaterally, albeit at a lower level. Results add to existing studies in separation of powers and constraints on unilateral executive behavior.     

Protecting Human Rights Through Constitutional Adjudication ‐ Jordan as a Case Study

This article aims at defining the role of constitutional courts in protecting the fundamental human rights of individuals, by relating the importance of constitutional judicial review and the established international standards related to the way it is performed. The study also provides an in‐depth analysis of the structure and working mechanism of the new constitutional court in Jordan with regard to its main functions described in the constitution of providing oversight of the constitutionality of laws and regulations in power, and interpreting provisions of the constitution. The study concludes that current statutory provisions with respect to the court proceedings and the method of undertaking its judicial work serve as safeguards that strengthen the role of the court in promoting individuals’ human rights. The study defines a vision of what is anticipated from the new constitutional court of Jordan and other courts in the field of defending human rights from the contemporary threats the world is facing, which only serve to increase fears among individuals that their basic rights are subject to serious attacks and violations.     

Tradeoffs between Local Taxes and Government Spending as Determinants of Business Location*

Abstract. This paper investigates the effects of local fiscal policy on the location decisions of 3,763 establishments that began operations in Maine between 1993 and 1995. Empirical results, estimated from Poisson and negative binomial regression models, indicate that businesses favor municipalities that spend high amounts on public goods and services, even when these expenditures are financed by an increase in local taxes. This suggests that a local fiscal policy of reduced government spending, to balance a tax cut, may attract fewer new businesses than a policy featuring additional spending and higher taxes.     

Spatial Tactics in Criminal Courts and the Politics of Legal Technicalities

This paper documents court‐imposed bail and sentencing conditions with spatial dimensions, such as red zones, no contact conditions, curfews and prohibitions to demonstrate, issued in the context of criminal proceedings. These conditional orders, which are growing in importance and have a significant impact on the lives of marginalized groups of people, have not received the attention they deserve in the literature. As opposed to better publicized forms of spatial regulation such as legislation or policing strategies, these conditional orders are a distinctive form of spatial tactic that rely on ancient and routinized rules of criminal procedure and the practices of the courts. In order to understand this spatial tactic, and its impact on marginalized people's rights and uses of spaces, we argue that it is necessary to pay attention to the legal rationalities, knowledge and practices that sustain them.     

Punishing convicted ravishers: statutory strictures and actual practice in thirteenth and fourteenth-century England

Several thirteenth-century English statutes provided increasing sanctions for ravishment or abduction of wards and wives. The penalty for conviction as a ravisher came to include a term of “penal servitude”, as well as the payment of damages to the plaintiff and an amercement to the crown. The evidence of the cases decided in the common law courts indicates that the payment of damages precluded penal servitude and that arrangements to pay made while in jail effected the prisoner's release before the term ended. Disregard of the ‘penal’ provisions and the continued use of jail or its threat to ‘coerce’ a defendant into compliance with the award of the court illustrate the disjunction between legislation and legal practice. That statutes about ravishment cannot be taken as self-enforcing contributes to the growing body of scholarship reminding us that history cannot be written from the statute books alone.     

Punishing convicted ravishers: statutory strictures and actual practice in thirteenth and fourteenth-century England

Several thirteenth-century English statutes provided increasing sanctions for ravishment or abduction of wards and wives. The penalty for conviction as a ravisher came to include a term of “penal servitude”, as well as the payment of damages to the plaintiff and an amercement to the crown. The evidence of the cases decided in the common law courts indicates that the payment of damages precluded penal servitude and that arrangements to pay made while in jail effected the prisoner's release before the term ended. Disregard of the ‘penal’ provisions and the continued use of jail or its threat to ‘coerce’ a defendant into compliance with the award of the court illustrate the disjunction between legislation and legal practice. That statutes about ravishment cannot be taken as self-enforcing contributes to the growing body of scholarship reminding us that history cannot be written from the statute books alone.     

Federal Aid and Rural County Highway Spending: A Review of the 1980

The Reagan/Bush Administrations cut back federal support for state and local governments during the 1980s, causing total real resources available to finance local roads and bridges to increase very slowly between 1977 and 1989. The effect of federal aid on spending for infrastructure has been subject to debate for many years. Some studies have indicated that federal aid is stimulative, while others report that federal aid substitutes for local resources. This article examines the effect of state and federal aid on county highway spending. The analysis demonstrates that, in 1987, federal aid was stimulative but state aid was not. In light of changes brought about by the Surface Transportation Efficiency Act of 1991 (ISTEA), we can expect federal aid to have a stronger relationship with local highway spending.     

ALTERNATIVE MODELS FOR ORGANIZATION OF STATE COURT SYSTEMS*

The dominant theme in court reorganization has been to state judiciaries by consolidating trial courts and centralizing their administration in a state level office. This article suggests that the debate over the relative merits of a centralized vs. a decentralized (or fragmented) court system ignores the rich variety of organizational structures used in other fields. The potential judicial implications of three models-franchise, corporate, and federal-are examined in detail. Their underlying assumptions are compared with those of the centralization approach. The argument is made that none of the models is appropriate for all circumstances. Each approach to court organization emphasizes a particular set of objectives at the expense of another set. An effort is made to identify what each approach has to offer.     

唐代行州行县补考续论

唐代的“行州行县”,是指脱胎于正州正县,治所寄驻他地的一种权置的特殊政区。综合郭声波《中国行政区划通史·唐代卷》的考证与笔者的补考(行雄州、行蔡州、行南扶州、行昌州、行翼州、行成州,行龙泉县、行潘原县、行洋源县、行黄金县、行朗池县、行将利县),唐代至少设置过37个行州、42个行县。唐代行州行县的设置,时间上以初唐和中晚唐为多,分布上以剑南道、关内道、河北道、陇右道为多,地点上则往往“依险为治”,这显示了唐代行州行县诸多方面的“现实功效”。至于寄驻正州正县界内的行州行县,会使原本正常的地方行政发生窒碍;管理职责归属部落首领的部分行州,会削弱中央朝廷对边疆地方的掌控力度,影响其循序渐进为正州的过程;行州行县的寄驻与升(还)正,会导致地名尤其是政区地名的名实混淆,如此等等,也是唐代设置行州行县所产生的负面影响。     

Trade Liberalization and the Fiscal Squeeze: Implications for Public Investment

This article examines the impact of trade liberalization on the level and structure of government expenditures across countries, with particular emphasis on low income countries. It develops the argument that the policies employed during trade liberalization have resulted in a fiscal squeeze as a result of declining tax revenues and rising interest expenditures. To surmount this fiscal hurdle, expenditures on physical capital, which have negligible political ramifications, have been reduced. Other more politically sensitive expenditures, such as spending on social capital, have been financed by incurring additional debt. However, additional debt has exerted upward pressure on interest payments, further exacerbating the fiscal situation. The statistical analysis carried out to examine the evidence uses panel data for eighty developing and industrialized countries over the period 1970–98 and employs a fixed–effects regression framework to account for country–specific characteristics. The results indicate that trade liberalization has indeed resulted in declining revenues and higher interest expenditures and that these factors have contributed to the observed decline in infrastructure spending.     

Judicial Review of Agency Interpretation of Statutes: Deference Doctrines in Comparative Perspective

Examined in this article are the deference doctrines developed by courts in the United States, Canada, Britain, Australia and South Africa. Deference doctrines determine when and if courts are to defer to an agency's reasonable interpretation of the ambiguous terms of the statute that the agency administers. The study of deference doctrines in comparative perspective reveals much about the need for agency autonomy in the modern administrative state and the capacity of courts to maintain the delicate balance and remedy abuses of discretion. It also provides an opportunity to determine how well the leading theories of judicial decision making explain the variety of judicial responses to the common problem of deference to agency interpretation of statues.     

The Shifting Fortunes of War: Patronage of the Wurttemberg Hofkapelle during the Thirty Years War

German courts have long been renowned for their support of music.How long could this support continue in times of war? This articleconsiders the fate of the Württemberg Hofkapelle duringthe Thirty Years War (1618-48), a conflict that forced manydistinguished Hofkapellen to close their doors for much of thewar's duration. The Hofkapelle (literally ‘court chapel’or music ensemble) was the focus of much music patronage atearly modern German courts, and typically consisted of an orchestraof strings, horns, and percussion, as well as adult male singersand a boys’ choir. Based on an analysis of church councilaccounts that list all expenditure for court music throughoutthe war, the article asserts that demand for music during religiousservices under both Protestant and Catholic control of the duchyremained relatively constant. This demand enabled the Hofkapelleto continue musical performances, despite the enormous constraintsthe war placed on court expenditure. Music patronage was significant in several ways. Payment forperformers and composers could be highly competitive among Germancourts, with the best musicians earning salaries often far exceedingthose of other officials. Foreign musicians were much in demandin Württemberg as elsewhere, such as English lutenist JohnPrice, who founded a group of English lutenists at the Württembergcourt in 1618 that lasted until the death of Duke Johann Friedricha decade later. While the hardship of wartime effectively endedthe payment of large salaries, forcing many top performers toleave, members of the court still called for music at church,even if they had to pay for performances themselves. A studyof music patronage during the Thirty Years War thus revealsnot only the extent to which the court sought to support thearts, but also how that support reflected the shifting fortunesof war.     

The Wapentake Courts of The Honour of Pontefract, 1427–1877

Wapentake courts continued to play an important role in the administration of the West Riding throughout the early-modern period and for much of the nineteenth century. This can be demonstrated from the surviving court records of the six wapentake courts of the honour of Pontefract. These show that wapentake courts, acting as sheriff's tourns, performed a central function in early-modern local administration. All the township officers within their jurisdictions, including constables, sworn men (bye-law men) and pinders, were sworn into office at sittings of these courts. The roles of these different township officers are made clear. These courts and the seigneurial courts with jurisdiction over civil suits were inter-dependant, as were the wapentake courts and the courts of quarter sessions. Evolutionary changes in the sittings and functions of these courts are described. The wapentake courts were undermined by nineteenth century reforms of policing and to courts for debt litigation, which eventually led to the final abandonment of these courts despite local support for their continuation.     

Legal geographies and ecological invisibility: The environmental myopia of evidence

This study shows how legal evidentiary rules intended to make trials fair also enable biodiversity loss, even in courts charged with environmental protection. The common law is premised on two types of rules. The first, substantive laws, set rules for how society should function—obstructing and punishing some behaviours while enabling and rewarding others. In contrast, procedural laws are intended to level the playing field when there is a dispute over substantive rules during litigation. This case study concerns a routine environmental dispute over land development in Sydney, Australia. It demonstrates how, by enabling courts to determine what evidence will and will not be considered, procedural rules and practices drive substantive outcomes by rendering certain places, dynamics, and connections visible and capable of judicial action while obscuring others. Specifically, the court’s efforts to use evidentiary tools to make litigation more efficient drove substantive outcomes in two ways. First, work to narrow evidence to address factual disputes also narrowed the court’s geographic scale of analysis to the property boundaries of the site, thus obscuring broader threats to a critically endangered ecological community. Second, these procedural evidentiary decisions drove substantive outcomes undermining biodiversity protection, while concealing their inherently substantive nature. Combined with the tendency of the court to use procedural informality to promote compromise between the parties, and a broader juridical treatment of intact ecological communities as species that can largely be moved at will, the evidentiary rules enabled an environmentally focused court to enable the victory of development over species protection.     

When the rule of law met rule by the party: the conflicts between Baptist schools and the local Guomindang in Republican Suzhou

ABSTRACT

This study examines the relationship between the Guomindang (GMD) and the courts by focusing on the 1929 conflicts between the Suzhou Baptist schools and the local GMD party apparatus. The GMD regime supported the principle of rule by the party. At the local level, the GMD’s rise was often stymied by the independent judiciary whose judgments were based on the principle of the rule of law. The local party might not have been able to control the local court in the early years of the GMD regime, but it did steadily alter state-society relationships, as it could benefit from the local court’s commitment to the rule of law. For instance, the district court in Suzhou actively defended the principle of rule by the party in conflicts between Baptist schools and the local party because the GMD had made that principle the law of the land.     

LOCAL PUBLIC SERVICES COSTS AND THE GEOGRAPHY OF DEVELOPMENT: EVIDENCE FROM FLORIDA COUNTIES

Theory suggests that the spatial distribution of development within a local jurisdiction affects the costs of providing local public services. We use GINI coefficients to characterize these distributions at the county level and estimate the effects on real per capita expenditures from reductions in the spatial concentration of all buildings and nine alternative types of development. We also estimate the effect on expenditures from expansions in the developed area of a county. The results obtained from a panel of Florida counties confirm our theory and suggest that the geography of development within a county affects public services costs.     

Land,Law and Courts in India: Tracing Land Rights Debates through Processes of Judicial Decision Making

The pace of industrial and allied infrastructure development in India is encumbered by scarcity in the supply of land. As a result, the state in India has frequently resorted to expropriation of land through conversion of land away from its traditional uses and through displacement of communities. Consequently, land acquisition in the country is mired in disputes over human rights and environmental rights violations. In the face of continued political support for infrastructure‐led development in India, those who stand to lose their land have often resorted to judicial recourse for pressing their rights. This article draws on empirical evidence from court cases related to two urban development projects in the states of Karnataka and Kerala to examine how courts have responded to the question of violation of land rights and appeals against land acquisition for the two projects. The author argues that the courts, while responding to the claims against the two projects, have refrained from holding the implementing agencies or the state governments accountable even in cases where there were recognizable incidents of malfeasance. The article illustrates that the inability of the courts to confront the state lends a tacit assent to the development agenda of the state.     

Demographic and budgetary influence on the geography of the poll tax: alarm or false alarm?

"The paper examines the influence of demographic change and the adaptation of local authority budgets on the level of poll tax between local authorities. The changes introduced by the Local Government Finance Act [in the United Kingdom] are argued to make almost all the possible variation between areas depend upon demography and local decisions on expenditure. Means of assessing local expenditure need are outlined and a consistent measure is developed which is used to estimate the relative contributions of changing need, tax base, new expenditures and grants over the period 1974-85 and up to 1991. 'New realism' in local authority spending is argued to combine with demographic change to allow radically reduced potential poll tax levies to be estimated than have been forecast by other sources. The reductions are particularly significant in inner London and many metropolitan districts."