Free and Happy Bonds: Loving v. Virginia's Nineteenth-Century Precedent on Marriage and the Pursuit of Happiness

Loving v. Virginia declares that marriage contributes to the pursuit of happiness. It supports this claim by citing 19^th century precedent, precedent which itself drew upon a longstanding view of marriage and happiness's pursuit. This article examines that view in state and federal opinions from the decades surrounding 14^th Amendment ratification. The courts saw marriage as fulfilling the human need for community, thereby aiding in the private happiness of those marrying and the public happiness of the political society. Marriage supported private happiness by forming a bond that provided for physical, material, and emotional needs. Courts sought to aid these goals while also protecting spouses' rights. Marriage supported public happiness through creating and educating future citizens as well as cultivating virtuous habits among those married—goals which the courts also sought to protect. The article concludes by discussing the continuity and discontinuity between these 19^th century cases, Loving, and Obergefell.     

Mixed messages & bounded rationality: The perverse consequences of real ID for immigration policy

Policies concerning undocumented immigrants are inevitably ambivalent, creating uncertainty and confusion in the implementation process. We identify a clear example of this ambivalence —U.S. law setting standards for determining the credibility of asylum seekers—that resulted in an increase in asylum grants despite policymakers' intention to make it harder for individuals to obtain the status. We argue that this law, The REAL ID Act of 2005, sent mixed messages to immigration judges (IJs), street-level bureaucrats who implement immigration policy. It increased IJ discretion, but set vague limits. We theorize that IJs, behaving in a bounded rationality framework, use their professional legal training as a short-cut and look primarily to the courts for guidance. Our evidence supports our argument. After the passage of the REAL ID Act, IJ decision-making is more closely aligned with the preferences of their political and legal principals, and, in the final score, the federal circuit courts are the winners.     

Swift and Erie: The Trials of an Ephemeral Landmark Case

Like jazz improvisation, the meaning of Swift v. Tyson was elusive. ¹ Justice Joseph Story's 1842 opinion concerning an important commercial‐law issue arose from a jury trial. ² When the creditor plaintiff appealed, counsel for the winning debtor raised as a defense Section 34 of the 1789 Judiciary Act. The federal circuit court disagreed about the standing of commercial law under Section 34. Although profound conflicts otherwise divided nationalist and states'‐rights proponents, the Supreme Court endorsed Story's commercial‐law opinion unanimously. ³ New members of the Court and the increasing number of federal lower‐court judges steadily transformed the Swift doctrine; after the Civil War it agitated the federal judiciary, elite lawyers, and Congress. ⁴ Asserting contrary tenets of American constitutionalism, the Supreme Court overturned the ninety‐six‐year‐old precedent in Erie Railroad v. Tompkins (1938). ⁵ The Swift doctrine's resonance with changing times was forgotten. The Court and the legal profession established, transformed, and abandoned the doctrine though an adversarial process and judicial instrumentalism. Although the policy of each decision reflected its time, Story's opinion was more consistent with the federalism of the early Constitution than was Erie. ⁶     

Consensus and conflict among Australia's leaders∗

This paper reports and analyses survey data on the opinions of 353 top position‐holders in business, trade unions, federal and state politics, the Commonwealth Public Service, mass media, national voluntary associations, and major universities and research institutes during the latter half of 1975. Patterns of elite responses to 15 issue sets aggregating 46 separate opinion items are examined. The main focus is on the extent and configuration of elite conflict and consensus over economic policy, foreign and defence policy, industrial relations, social issues, and institutional structure. In general, substantial conflict between left‐of‐centre and right‐of‐centre elites in all major issue areas, save possibly that of social issues, is found. However, the extent of this conflict varies as between specific policies, over which it is relatively small, and the legitimacy or desirability of various group actions and major policy innovations, over which it is quite large. Whether conflict during 1975 was sufficiently great to threaten the fundamental unity of Australian elites is discussed.     

Aspects of continuity and change in the Italian placitum, 962-72: The nature and significance of courtroom procedures

During the first seventy-five years of the tenth century in Italy three distinct procedures existed for the purpose of resolving jurisdictional disputes over property. Together they comprise the activity of a special court known only by the general term placitum. The property court, the placitum under discussion here, employed three procedures: (1) a litigation, (2) confirmation to avert possible conflict between two parties over opposing claims, and (3) a request for the confirmation of a commercial transaction.My study considers two problems: what purpose did the courts serve and to whom were they useful; second, what was the nature and intent of the procedures that these courts employed? The answers require an investigation of the personnel who administered the courts and the persons who sought court judgments, since the status and interests of both groups had considerable impact on the legal and institutional developments of this tribunal. The participants were mostly members of the ecclesiastical hierarchy and some of the higher lay magnates; by and large they were members of the ruling hierarchy.The property hearing had a long chain of development that reached into the late eight century: over the years it developed distinct procedures and instruments to record the results. These procedures reflect the interface of German and Roman law. We see in the history of this court the development of thoughts about evidence, the validity of written instruments as witnesses, and the role of judges as investigators.     

The Prestige of Australian State Supreme Courts Over the 20th Century

This article measures the prestige of the Australian State supreme courts and examines competing explanations for differentials in their prestige over the course of the 20th century. The study finds that the prestige of the State supreme courts are positively correlated with the reputation of their Bench, proxied by the number of High Court judges from that State; socioeconomic diversity in that State, proxied by the State's population; and legal capital, proxied by the number of pages of the official law reports of the State supreme court.     

Intervention methods in land disputes

Archival data, survey and interviews were used to investigate mediation activities among judges in the Norwegian Land Consolidation Court. The court handles land issue disputes among farmers in rural Norway. Despite having both planning skill and court power the judges spend a considerable amount of time mediating the disputes. In fairly integrative planning disputes they increase their mediation efforts with conflict level, case size and complexity. Mediation helped to reduce objections to the plan implemented. In more distributive boundary disputes they mediated less, and to a lesser degree varied efforts with case characteristics. However, settlements were achieved in the less conflictive, smaller and less complex cases. Considerable variations in mediation styles were found among the judges. Those with settlement oriented behaviour achieved more settlements than those that focused on facilitating communication. Implications are discussed.     

清代道员职衔考述

道员,源自明代藩臬佐贰,各道设置之初,其独立性远不及后世,均各带参政、参议、副使、佥事等两司职衔守巡各地。入清后,仍沿其旧制,诸道职衔、品级各不相同。随着道制的完善,道员的地位、作用日趋固定,遂有乾隆十八年停直省守巡各道兼两司职衔之举,同时定其品秩为正四品。自此之后,道员不再是藩臬佐贰的统称,而成一独立职官名称。道员职衔经历了一个从各道坐定职衔,到以一定原则兼衔任缺,再到逐渐弱化兼衔意义,并最终去兼衔定品级的过程。     

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.     

INTEREST GROUP LITIGATION AND ENVIRONMENTAL POLICY

During the past decade federal courts have become an important forum for many environmental conflicts. In the early 1970s environmental groups initiated many of these cases, putting government agencies charged with enforcing environmental regulation on the defensive. By the beginning of the 1980s business interests had assumed the offensive, especially at the appellate levels, placing government agencies squarely in the crossfire of the two groups. Federal judges tended to treat the opposing interests even-handedly, although the plaintiff in a case tended to have an advantage. It appears that environmental groups will be pressed into assuming the offensive once more as federal agencies reduce their enforcement efforts under the Reagan Administration.     

The Politics of Judicial Selection

Some of Stuart Nagel's earliest work has a continuing significance to research on the selection of state court judges. His research provides answers to why partisan election of judges, in spite of the flaws of this selection system, remains a major system for selecting state court judges. And Nagel's early research offers important insight about contemporary issues in the selection of judges such as the differences between elected and appointed judges and the role of race and ethnicity in judicial decision-making.     

Beginning to Write Separately: The Origins and Development of Concurring Judicial Opinions

While political scientists and legal academics have both evinced a “fascination with disagreement on courts,” ¹ this scholarly concentration on conflict rather than consensus has tended to focus on dissent and dissenting opinions. As far as we can tell, there is no authoritative history of concurring opinions in the U.S. Supreme Court. This article is a first effort to correct that oversight by examining developments and change in concurring behavior from the founding through the White Court (1921). This period covers the emergence of an institutionally independent national judicial branch and ends before the start of the modern, policy‐making Court era, which we argue begins with the Taft Court and the creation of a fully discretionary docket.     

Judges and judging: truth and justice in northern Iberia on the eve of the millennium

This is a study of the functions of judges in courts in northern Iberia in the later ninth and tenth centuries; of their identities as individuals; and of the language of justice in the records of court proceedings. Judges ordered what was to happen next in the conduct of a case, made primary investigations, reviewed evidence and made decisions. At least 180 named individuals were involved in judging in this period, usually in panels, although more, unnamed, judges also participated in the process. The records are characterised by a rhetoric of truth and justice designed to effect closure.     

Regulating interpersonal debt in the bishop's court of Carpentras: litigation,litigators and the court, 1486 and 1487

Using notarial records, this article explains who sued whom at the bishop's court at Carpentras, why they did so and how the court managed people and their debt disputes. In 1486 and 1487, creditors pursued 240 suits over unpaid loans (about three-quarters of the court's business). Litigants spanned the social spectrum and included both Christians and Jews, suggesting that the court was well embedded in the local economy. This diversity, as well as the predominance of ‘horizontal lending’, matches regional trends. Drawing upon anecdotal evidence and quantitative work, the court's procedures, functions and appeal are explained. Since most loans were made orally, proving their existence was difficult. Cases rarely reached rulings and creditors could not expect from ecclesiastical judges the coercive innovations adopted by secular courts. Yet, this church court was a popular forum to authenticate debts, pressure debtors into confession and encourage peaceful, private concords.     

Maternalism, race, class and citizenship: aspects of illegitimate motherhood in Nazi Germany

This article juxtaposes three types of illegitimate motherhood that came in the wake of the Second World War in Nazi Germany. The first found institutional support in the Lebensborn project, an elite effort to raise the flagging birth-rates, which at the same time turned a new page in the history of sexuality. The second came before the lower courts in the form of paternity and guardianship suits that had a long precedent, and the third was a social practice that the regime considered a ‘mass crime' among its female citizenry: namely, forbidden unions between German women and prisoners of war. Through these cases the article addresses issues such as morality, sexuality, paternity, citizenship and welfarism. The flesh-and-blood stories have been culled from the Lebensborn Dossiers and Special Court files, as well as cases from the lower courts.     

Judicialization and Health Policy in Colombia: The Implications for Evidence‐Informed Policymaking

The existence of the tutela mechanism and the endemic weaknesses of the legislative and executive branches of the Colombian state have led to a de facto judicialization of health policymaking. The objective of evidence‐informed policy is to identify effective policy approaches and legitimize policy decisions. Questions arise about the basis on which judges take decisions with significant policy and budgetary consequences, and the forms of evidence they use to inform these. This article focuses on the extent to which courts take account of research evidence in judgements and assesses the implications for health policy in Colombia. We place these discussions in the context of a broader analysis of the ongoing reforms to the Colombian health system and the most recent literature on evidence‐informed policymaking. The judicialization of health policymaking offers a suboptimal means to achieve the objective of evidence‐informed policymaking. The emergence of a range of evidence advisory bodies in recent years is an attempt to address the issue of judicialization alongside the other constitutional and political weaknesses Colombia faces.     

‘Your work is of no use to us…’: Administrative interests in ethnographic research (West New Guinea, 1950–1962)

Abstract

The extent of customary land in Samoa and the laws pertaining to its protection create a presumption of state dependence on the regulation of custom in effecting state policies within local contexts. The principal means of regulating custom in Samoa has been and continues to be through state court adjudication of conflicts over customary land and chiefly titles. The transitive nature of ‘custom’ and conceptions of ‘custom’ in Samoa created an opening for court influence in the construction of custom, if not custom's partial reinvention through the agency of the courts. This occurred principally through the courts’ privileging principles of English common law in confirming asserted land rights generally considered unenforceable at the time of Samoa's political partition. The courts re‐interpreted as customary, conceptions of land rights the colonial state's influence attempted to effect within Samoan society. But the source of the changes, and the courts’ role in promoting them, tended not to be equally reflected upon. To the extent such influence is ignored in analyses of Samoan land tenure and customary law, and reproduced within state policies and court adjudication of conflict, custom's social construction is left unexamined, assumed to be more general than it is, and likely to exacerbate tensions and conflict within Samoan society rather than reduce them.     

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 Judicial Bookshelf

Almost anyone who can read would describe the Supreme Court of the United States as a legal body–an institution that says what the law is in the context of deciding cases. May the Court also be fairly described as a political institution? Even to pose the question raises eyebrows, because Americans commonly use the word “political” to refer to partisan politics—that persistent struggle between organized groups called political parties to control public offices, public resources, and the nation’s destiny. In this sense of the word, the federal courts are expected today to be “above politics,” meaning that judges are supposed to refrain from publicly taking sides in elections, from otherwise jumping into the arena of electoral combat, 2 or from deciding cases based on the popularity of the litigants.3 While democratic theory anticipates that elected officials will answer to the people, the rule of law envisions something different: an abiding and even‐handed application by the judiciary of the Constitution and statutes shaped by the people and their representatives.     

Law, Policymaking, and the Policy Process: Closing the Gaps

Public policy scholars and public Law scholars often study the same substantive issues and have similar theoretical interests Yet students of the public policy process rarely consider the courts as policymakers in the same manner as do their public law counterpart We seek to explain this difference in approaches between the two Subfield on the question of the courts as policymakers, and we ask. how models of the public policy process should incorporate the judiciary.