Online research in philosophy

Recent critics of the Roberts Court chide it for its lack of regard for precedent. Fred Schauer faults these critics for erroneously assuming that a rule of stare decisis formerly played a significant role in the Supreme Court's decision-making. In fact, it has long played only a rare and weak role in the Court's work. Nonetheless, according to Schauer, the critics are to be thanked for invigorating a needed debate about the importance of "stability, consistency, settlement, reliance, notice, and predictability" in the Court's decisions. This article argues that Schauer exaggerates the weakness of stare decisis in the Court's practices; and that his call for a public debate on the merits of the norm of stare decisis can only weaken it.

Although the ethical and legal worlds are often at odds, a wealth of information is gained by evaluating legal decisions from an ethical perspective. Evaluating court decisions from an ethical viewpoint, increases our knowledge, and helps to beneficially influence future court precedent. Of particular importance to the relationship between the law, business, and ethics, is the ideal of beneficence and non-maleficence. It is the court’s role to protect the rights of individuals, especially with regards to their health care provision. These issues are especially present in conflicts that relate to the availability and access to health care and insurance coverage. Patient autonomy, physician malpractice and informed consent are all influenced by such current court precedent as addressed bythe Employee Retirement Income and Security Act of 1974 (ERISA). This leads us to the central theme of this discussion on the ethical implications of the Supreme Court precedent on ERISA.

Since the enactment of the Canadian Charter of Rights and Freedoms, Canadians have played out an American-style debate about judicial activism at an accelerated pace. Throughout the 1980s, a number of commentators on the left expressed concerns that the Court was interpreting the Charter in a manner that would thwart legislative attempts to assist the disadvantaged and strike down progressive social legislation as occurred in the United States in the Lochner era: During the next decade, commentators on the right duplicated American criticisms of the Warren Court by arguing that the Supreme Court was exercising too much power by inventing rights not found in the Constitution, and by enforcing the rights of minorities and criminals against the wishes of the majority and their elected representatives. Despite their different politics, these critics of judicial activism share much. They all believe that judges can read their personal preferences into the Charter; they are all skeptical about the rights asserted in Charter litigation; and they all have faith in majoritarian forms of democracy and legislative supremacy.In this essay, I will argue that the term judicial activism is ultimately not a helpful way to structure debate about judicial review under the Charter or other modern bills of rights that allow rights as interpreted by the Court to be limited and overridden by ordinary legislation. The label judicial activism obscures more than it illuminates and allows commentators to criticize the Court and the Charter without really explaining their reasons for doing so. It hints at, if not judicial impropriety, at least judicial overreaching, while hiding often controversial assumptions made by the critics of judicial activism about judging, rights and democracy. Such assumptions need to be revealed and unpacked for all the world to see.

Lloyd's Underwriters v. Cominco Ltd., is a potentially seminal case, currently pending before the Supreme Court of Canada. The case involves the issue of whether Canadian courts should stay litigation in the face of duplicative foreign proceedings. This reply responds to Vaughan Black's and John Swan's comment on the Lloyd's case, which was published in volume 46 of the Canadian Business Law Journal. The reply argues that although Black and Swan have important insights into judgment enforcement when competing, inconsistent decisions exist, their analysis too readily skips over the first-to-file rule and underestimates the costs of reactive litigation. Canadian courts should embrace a nuanced version of the first-to-file rule because avoiding the costs of duplicative, reactive litigation is in Canada's best interest. The reply argues that Canadian courts should treat the issues of parallel proceedings and judgment enforcement symmetrically. Once a Canadian court finds that the same case has already been filed in a court of appropriate adjudicatory jurisdiction (consistent with Canadian jurisdictional principles), it should stay its proceedings unless the party opposing the stay can demonstrate that a clear injustice would occur if the stay is granted. The court should enter a stay, even if a Canadian province has greater connections with the dispute, so long as the foreign forum has real and substantial connections. It concludes by arguing that the Canadian Supreme Court would be wise to reverse the lower courts' decisions and find that the wastes inherent in duplicative litigation favors a stay in the Lloyd's case.

In this article, the author discusses the Marriage Cases opinion issued by the California Supreme Court in May of 2008. In that decision, a majority of the justices of the California Supreme Court found that the California Constitution requires affording the designation of marriage to same-sex couples. Though the article focuses on California, the article is equally applicable to other opinions discussing same-sex marriage. (The views expressed in the article do not necessarily represent the views of the agency or the U.S.).

One of the chief arguments against a constitutional Bill of Rights is that it gives judges too much power. The courts interpret the constitution, and from the highest court there is no appeal (though the Constitution can be amended -- a difficult process). As Americans sometimes say, "The US Constitution is whatever the Supreme Court says it is". In many cases the Supreme Court has interpreted the Bill of Rights by means of wire drawn reasoning, reflecting the judges' political and social views. For a survey of Supreme Court Cases on the Bill of Rights see M. Konvitz, Fundamental Liberties of a Free People . The Supreme Court's power to interpret the constitution has made the appointment of judges a political issue, and in 1937 President Roosevelt sought to appoint additional judges (to "pack" the Court) so as to change the court's attitude (the US Constitution does not fix the number of judges). A President is expected to nominate judges ideologically acceptable to his supporters, and the Congress scrutinises these nominations in a partisan way. See article on George W. Bush's nominations. Since judges hold office for life, a President's nominations may make a long term difference to the interpretation of the constitution.

The decision of the Supreme Court of Canada in Canadian Western Bank v. Alberta (2007) was quickly hailed as the most important federalism ruling in 20 years. The decision has already been the subject of considerable academic commentary, but that academic commentary has been focussed, almost exclusively, on the doctrinal implications of the decision; there has been very little discussion of the underlying theory of federalism described in the decision. This paper will fill that gap. I will argue that, in Canadian Western Bank, the Supreme Court clearly outlines the theory of judicial review that has been animating its decision-making in division of powers cases, at times explicitly, but mostly implicitly, for at least the last ten years. Under this theory, the Supreme Court encourages the political branches to take the lead in defining the scope of the division of powers; the Supreme Court limits itself to facilitating an intergovernmental dialogue about the scope of the division of powers, and managing the conflict that results where the political branches fail to reach agreement.

Since former President Soeharto was forced to resign in 1998, the Indonesian judiciary has been significantly reformed. A Judicial Commission was established to monitor its performance. A Constitutional Court was also created; one of its tasks is to decide disputes between state institutions and to review the constitutionality of statutes. This paper discusses the Constitutional Court case in which several Supreme Court judges alleged that the Constitution’s guarantee of judicial independence precluded the Judicial Commission from supervising the Supreme Court’s performance by critically analysing its decisions. The Constitutional Court accepted this argument, declaring that the Indonesian Constitution prohibited the Judicial Commission from performing this function. This paper discusses this case and its potential ramifications.

In this paper, I have analyzed the right to trial by jury in civil cases as reflected in decisions of the Michigan Supreme Court over approximately a 20 year period dealing with three areas affecting the right to trial by jury in civil cases: (1) entitlement to a jury trial; (2) summary disposition; and (3) directed verdicts. The study was constructed to cover cases over a substantial period of time, so that it would be possible to analyze whether the changing composition of the Michigan Supreme Court, beginning in the late 1990's, impacted on the Court's decisions in these three areas.The conclusion that emerges from the is that the Court, as currently constituted, has diminished the right to trial by jury in civil cases in Michigan. The Court is more inclined than it was prior to 1999 to hold in more cases that there is no genuine issue of material fact, justifying summary disposition, and has now heard cases in which it has held that the defendant is entitled to a directed verdict. And the fact that the Court is more inclined to uphold the granting of summary disposition and directed verdicts is likely to have a demonstrable impact on these kinds cases when they are presented to the Court of Appeals and the trial courts. These courts, following the precedents of the Supreme Court and the results of the cases coming before that Court, will be more likely to rule in favor of granting motions for summary disposition and motions for directed verdicts.Given the Court's view of the diminished role of the jury in resolving factual disputes in civil cases, litigating lawyers must make the best of a bad situation and do everything that they can in order to protect the right to trial by jury in civil cases. They must try to ensure in the early stages of the litigation that their cases are strong enough to survive a motion for summary disposition and get to the jury, and at the trial they must make a determined effort to present sufficient evidence to survive a directed verdict. Hopefully the Court's view of the diminished role of the jury will not have dealt a fatal blow to the right to trial by jury in civil cases in Michigan. Time will tell how well the lawyers of Michigan have succeeded in preserving this fundamental constitutional right.

Highly experienced Supreme Court advocates are frequently believed to be influential in argument before the Court in a way that far outstrips the run-of-the-mill advocate. This paper tests that hypothesis with regard to a particular subset of "public law" or "public interest" cases. It finds that highly experienced advocates have become an enormous influence on the Court's public law cases, and offers a game-theoretic rationale for this influence - that the use of highly-experienced counsel serves as a "signal" to the Court that the preferable result is the one that the advocate is pushing. It also examines the effect on civil rights law (as a case study) that the Supreme Court Bar, as they're called, has, and proposes some possible solutions.