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A major focus of judicial politics research has been the extent to which ideological divergence between the Court and Congress can explain variation in Supreme Court decision making. However, conflicting theoretical and empirical findings have given rise to a significant discrepancy in the scholarship. Building on evidence from interviews with Supreme Court justices and former law clerks, I develop a formal model of judicial-congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court. An original dataset identifying all Court-curbing legislation proposed between 1877 and 2006 is then used to assess the influence of congressional hostility on the Court's use of judicial review. The evidence indicates that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self-restraint. When Congress is hostile, the Court uses judicial review to invalidate Acts of Congress less frequently than when Congress is not hostile towards the Court.

Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational-anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional-maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll-call votes to estimate support in the current Congress for the original legislation and the Court's preferences over that legislation. We find that the Court does not appear to consider the likelihood of override in constitutional cases, but it does back away from striking laws when it is ideologically distant from Congress.

Proper understanding of the Chinese judicial system is often made frustratingly difficult due to the clash of two equally prevalent rival views of the relationship between the Chinese Communist Party (CCP) and China's courts. According to the first, the CCP is a frequent violator of the law and makes its claim to establish the rule of law a farcical act, while on the second view, very often expressed in defense against the first, the CCP is portrayed as the only reliable guardian that can buttress the otherwise vulnerable courts and subsequently protect the law and order that it seeks to establish. In this article, I intend to present an integrated and coherent explanation of the relationship between the CCP and China's courts and to explore the root cause that has led to the perceived contradictory impacts of the former upon the latter. To achieve this goal, I will start by tracking and examining the institutional history of the Party Political-Legal Committees (PPLCs), followed by an investigation of the mechanisms through which PPLCs have conducted supervision over courts. My primary finding is that the relationship between the CCP and the courts is embedded in the institutional design of the partystate, under which the CCP and only the CCP has the authority to compel compliance by individual state institutions and by the state as a whole. As a result, courts are authorized to apply the law but lack the authority to compel compliance with the law by institutions of equal or higher rank in the power hierarchy defined by the CCP. The consequence of this arrangement exhibits two features, in fact two sides of the same coin. On the one hand, the CCP assumes a paternalistic role, obliged to provide courts with support to gain access to operational funds and other resources and to lend courts the necessary authority to compel compliance from institutions normally beyond the reach of the courts' own authority. On the other hand, the CCP is able to preserve the supreme authority of decision making in selected and prioritized areas, where it can determine judicial outcomes in an arbitrary fashion to advance its political agenda and goals through both or either of the macro and micro approaches.

Under universal jurisdiction, any state in the world may prosecute and try the core international crimes— crimes against humanity, genocide, torture, and war crimes—without any territorial, personal, or national-interest link to the crime in question whenit was committed.The jurisdictional claim is predicated on the atrocious nature of the crime and legally based on treaties or customary international law. Unlike the regime of international criminal tribunals created by the United Nations Security Council and the enforcement regime of the International Criminal Court (ICC), the regime of universal jurisdiction is completely decentralized.

The best case for judicial review in politically and morally healthy societies does not depend (as is commonly believed) on the idea that courts are more likely than legislatures to define vague rights correctly. It rests instead on the subtly different ground that legislatures and courts should both be enlisted to protect fundamental rights and, accordingly, that both should have veto powers over legislation that might reasonably be thought to violate such rights. In developing this case for judicial review, Professor Fallon proceeds by confronting recent, influential, philosophically probing arguments against judicial review by Professor Jeremy Waldron. Professor Fallon concedes arguendo that, as Professor Waldron argues, courts are no better than legislatures at defining rights correctly, but maintains that the crucial question is not whether courts or legislatures are less likely to err, but which kinds of errors are most important to avoid--those that result in rights being overprotected or those that result in rights being infringed. Insofar as judicial review can be designed to prevent errors in just one direction, involving failures to protect rights adequately, then judicial review may be supportable even if courts are no better than legislatures at identifying rights correctly. Professor Fallon also argues, contra Professor Waldron, that judicial review can actually contribute to the political legitimacy of an otherwise democratic scheme of government when the demands of political legitimacy are understood correctly. Professor Fallon's revised justification for judicial review, which does not presume courts to be better than legislatures at identifying fundamental rights, has important implications for how judicial review should be practiced. It implies a diminished role for courts in cases in which fundamental rights are pitted against one another, such that the overenforcement of one entails the underenforcement of the other. It also implies that courts should withhold review when legislatures conscientiously seek to protect one fundamental right without plausibly threatening another.

Institutional legitimacy is perhaps the most important political capital courts possess. Many believe, however, that the legitimacy of elected state courts is being threatened by the rise of politicized judicial election campaigns and the breakdown of judicial impartiality. Three features of such campaigns, the argument goes, are dangerous to the perceived impartiality of courts: campaign contributions, attack ads, and policy pronouncements by candidates for judicial office. By means of an experimental vignette embedded in a representative survey, I investigate whether these factors in fact compromise the legitimacy of courts. The survey data indicate that campaign contributions and attack ads do indeed lead to a diminution of legitimacy, in courts just as in legislatures. However, policy pronouncements, even those promising to make decisions in certain ways, have no impact whatsoever on the legitimacy of courts and judges. These results are strongly reinforced by the experiment's ability to compare the effects of these campaign factors across institutions (a state Supreme Court and a state legislature). Thus, this analysis demonstrates that legitimacy is not obdurate and that campaign activity can indeed deplete the reservoir of goodwill courts typically enjoy, even if the culprit is not the free-speech rights the U.S. Supreme Court announced in 2002.

Independent courts render current policy more durable (by raising the cost of future policy changes) but may also engage in policy-making of their own. This paper asks: Is there an optimal level of judicial independence from the perspective of incumbent officials in the other branches ? To answer that question, the paper develops a model of strategic institutional choice, and tests it on the judicial institutions of the American states. Consistent with the model's predictions, the most independence-enhancing institutions are found where political competition between rival parties is tightest and differences between party platforms are largest.

There is a growing consensus that parliamentary systems with recently enacted bills of rights constitute a new model of constitutionalism that serves as a middle ground between parliamentary sovereignty and judicial supremacy. One of the key features often discussed in relation to this 'weak-form' or 'Commonwealth' model of judicial review is the notion of an inter-branch dialogue about rights that permits legislatures to respond to court rulings about the policies at stake. This article develops a framework for empirically assessing whether and how dialogue operates in practice. A systematic examination of legislative responses to Supreme Court rulings affecting legislation in Canada finds that relatively little genuine dialogue occurs in practice because legislatures rarely respond in a manner that departs from the dictates of the Court's rulings. The article then explores the implications this type of empirical assessment might have for other parliamentary systems. Il existe un consensus croissant sur le fait que des systèmes parlementaires ayant récemment promulgués des projets de loi relatifs aux droits présentent un nouveau modèle de constitutionnalisme qui offre un terrain à mi-chemin entre la souveraineté parlementaire et la suprématie juridique. Une des caractéristiques clés souvent discutées par rapport à cette « forme faible » ou « modéle du Commonwealth » de contrôle juridique est la notion d'un dialogue interprofessionnel sur les droits qui permet aux législatures de répondre aux décisions juridiques sur les politiques concernées. Cet article développe un cadre pour évaluer empiriquement comment le dialogue opère en pratique. Un examen systématique des réponses législatives aux décisions de la Cour suprême affectant la législation au Canada révèle relativement peu de dialogue franc, car les parlementaires réagissent rarement en fonction des préceptes des décisions de la Cour. L'article explore alors les implications que ce type d'évaluation empirique pourrait avoir pour d'autres systèmes parlementaires. Existe un consenso creciente acerca de que los sistemas parlamentarios con nuevas cartas de derechos constituyen un nuevo modelo de constitucionalismo que sirve de punto medio entre la soberanía parlamentaria y la supremacía judicial. Uno de los aspectos clave, a menudo en discusión, se refiere a esta 'forma débil' o modelo 'Commonwealth' para evaluar la acción legislativa basada en la noción de un diálogo entre las distintas ramas de la judicatura el cual les permite responder a los fallos judiciales acerca de las políticas en cuestión. Este artículo desarrolla un marco para evaluar empíricamente, sí, y, cómo funciona este diálogo en la práctica. Un examen sistemático de las respuestas legislativas a los dictámenes de la Corte Suprema en Canadá da cuenta que un diálogo genuino ocurre en forma muy limitada en la práctica debido a que las legislaturas rara vez se apartan de los dictados de sentencia de la Corte. Luego, el artículo examina las implicancias de este tipo de evaluación empírica para otros sistemas parlamentarios.

Federal statutes do not come with instructions, but maybe they should. For as long has there have been statutes, lawyers and laymen have puzzled over their inevitable ambiguities. The central, unquestioned premise in this field is that the judiciary is the proper branch to design and implement tools of statutory interpretation. This article challenges that assumption. It asks whether Congress can and should help select the tools for interpreting federal statutes. It concludes that Congress has the constitutional power to do so, and that it would be wise to exercise this power.

This article develops a simple signaling game in which a Legislature and a Court interact in seeking their own policy goals. The Legislature faces two sources of uncertainty when legislating. First, it knows only probabilistically whether the Court's preferences converge or diverge from its own on the proposed law. Second, its knows only probabilistically the true state of the world and, hence, does not know with certainty whether the law will reasonably achieve its intended outcome if enacted. For institutional and sequential reasons, the Court has more information regarding the actual consequences of an enacted law than the Legislature did when initially considering it. As a result, the Court's exercise of the judicial veto may (but not necessarily will) be informationally productive. The possibility of informative judicial review affects the quantity and informational quality of legislation enacted by the Legislature relative to legislation that would be enacted in the absence of judicial review. Further, an informational component to judicial review alters the incentive that the Court has to act strategically relative to incentives for strategic behavior in purely distributive models of legislative-judicial interaction. Finally, because of the possibility of informative judicial review, the model accounts endogenously for the creation and maintenance of an independent judiciary by a Legislature that solely values achieving its preferred policy outcomes.