Sortition, i.e. random appointment for public duty, has been employed by societies throughout the years as a firewall designated to prevent illegitimate interference between parties in a legal case and agents of the legal system. In judicial systems of modern western countries, random procedures are mainly employed to select the jury, the court and/or the judge in charge of judging a legal case. Therefore, these random procedures play an important role in the course of a case, and should comply (...) with some principles, such as transparency and complete auditability. Nevertheless, these principles are neglected by random procedures in some judicial systems, which are performed in secrecy and are not auditable by the involved parties. The assignment of cases in the Brazilian Supreme Court is an example of such a procedure, for it is performed using procedures unknown to the parties involved in the judicial cases. This article presents a review of how sortition has been historically employed by societies and discusses how Mathematical Statistics may be applied to random procedures of the judicial system, as it has been applied for almost a century on clinical trials, for example. A statistical model for assessing randomness in case assignment is proposed and applied to the Brazilian Supreme Court. As final remarks, guidelines for the development of good randomization procedures are outlined. (shrink)

This Article discusses the impact of the international financial crisis on Brazilian capital markets. While the banking industry was not severely affected, leading nonfinancial corporations experienced severe financial turmoil. Two Brazilian corporations cross-listed in the United States - Sadia S.A. and Aracruz Celulose S.A. - suffered billion-dollar losses when the Brazilian real unexpectedly plummeted in relation to the dollar. Despite earlier disclosure that these companies had engaged only in pure hedging activity, these great losses were found to (...) be the result of their highly speculative trading in currencyderivatives. Consequently, several private lawsuits were filed both in the United States and in Brazil. This Article takes a novel approach to the transnational securities litigation debate by examining the particular consequences of private litigation in a developed and in an emerging country. It compares the types of lawsuits filed and their final outcomes. Despite substantially similar alleged wrongdoing, the outcomes for securities holders in each jurisdiction contrast strikingly. Only U.S. investors of both companies were able to obtain substantial financial recoveries; Brazilian investors obtained none. This Article examines the reasons behind these discrepant results and the consequent economic distributional effects on global securities markets after the U.S. Supreme Court decision in Morrison. The Article argues that Morrison aggravates such shareholder cross-border non pro rata compensation and transfers of company value from foreign to U.S. investors. It identifies a set of costs borne by foreign investors, and so far neglected by scholars, as a consequence of the current status of U.S. and international securities law regimes. These costs are the result not only of the typical “circularity problem” in securities litigation, but also of a “double circularity problem” as they fall on foreign shareholders who also suffered equivalent damages to those experienced by the U.S. class being compensated. The Article then discusses potential policy reforms for fixing transnational securities litigation. (shrink)

ABSTRACTThis paper discusses the Brazilian Supreme Court ruling on the case of anencephaly. In Brazil, abortion is a crime against the life of a fetus, and selective abortion of non‐viable fetuses is prohibited. Following a paradigmatic case discussed by the Brazilian Supreme Court in 2004, the use of abortion was authorized in the case of a fetus with anencephaly. The objective of this paper is to analyze the ethical arguments of the case, in particular (...) the strategy of avoiding the moral status of the fetus, the cornerstone thesis of the Catholic Church. (shrink)

Este artigo apresenta um panorama da jurisprudência do Supremo Tribunal Federal sobre o controle judicial do orçamento público e a proteção dos direitos humanos enquanto fim do Estado e do direito, especialmente considerando a recente tese fixada sobre o assunto. A questão de saber se é possível conciliar a atividade judicial com o controle de constitucionalidade dos orçamentos públicos é complexa e polêmica. Diante disso, para além de analisar as implicações orçamentárias decorrentes da judicialização dos direitos sociais positivos, o objetivo (...) do presente estudo é analisar a postura do Poder Judiciário (STF) com relação ao próprio orçamento.AbstractThis article presents the evolution on the Brazilian Supreme Court jurisprudence involving public budget review, in the light of the human and fundamental rights promotion as a state’s goal – specially regarding the most recent court’s ruling on this issue. The question regarding the possibility to reconcile judicial review with public budget control is a complex one. In analyzing its complexity, this study aims at the effects that litigation over economic and social rights produces on public budget and what kind of attitude should we expect from the Judiciary regarding public budget planning. (shrink)

A Constituição Federal brasileira fixou um desenho estrutural de competências que permite uma ampla atuação do Supremo Tribunal Federal sobre a vida social e os ramos de governo. No entanto, a análise da teoria institucionalista estratégica sobre os julgados relativos ao processo legislativo federal demonstra que não há um panorama assimétrico entre os departamentos estatais. Na verdade, o jogo entre poderes pode criar cenários conjunturais que libertam decisões baseadas na preferência individual dos julgadores ou que restringem a autonomia da Corte (...) quando críticas ou retaliações externas ameaçam sua permanência e autoridade. (shrink)

The UK Supreme Court’s recent judgement inMcCulloch v Forth Valley Health Boardclarifies the standard for the identification of ‘reasonable’ alternative medical treatments. The required standard is that of a reasonable doctor: treatments that would be accepted as proper by a responsible body of medical opinion. Accordingly, the assessment of consent involves a two-stage test: first, a ‘reasonable doctor’ test for identifying alternative treatments; followed by a ‘reasonable person in the patient’s position’ test for identifying the material risks of (...) these reasonable alternative treatments. The separation of consent into two stages is consistent with not only a certain conception of freedom but also a nuanced construct of respect for autonomy that has a normative base. Furthermore, reliance on a reasonable doctor in the first stage is in keeping with a sociological account of medical professionalism, which posits that only doctors, and none others, can determine what is a proper treatment. Yet, reliance on a reasonable doctor permits a plurality of standards for reasonableness, because differences in opinion among doctors are pervasive. The reasons for some differences might be acceptable as unavoidable imperfections in medical decision-making to a reasonable person. But reasons for other differences might be objectionable; and the resultant inequalities in medical treatments would be considered unfair. One solution is to make the plurality of reasonable alternatives available to the patient, but this would introduce practical uncertainty and it is rejected by the Court. The Court’s approach may be pragmatic; however, it seems to allow avoidable injustice in healthcare. (shrink)

In another tumultuous term of the United States Supreme Court in 2022-2023 a series of critical cases implicate instant and forthcoming changes in multiple fronts that collectively shift the national public health law and policy environment.

The most remarkable thing about the U.S. Supreme Court's 1998 decision in Bragdon v. Abbott was that it was necessary at all. Seventeen years into the epidemic of the acquired immunodeficiency syndrome, the Supreme Court, by a mere 5-4 majority, finally affirmed what most public health officials, health providers, and lawyers working with people with human immunodeficiency virus believed all along: that individuals with HIV infection are entitled to the protections of antidiscrimination law, and that health (...) care providers must respond to a patient's infection based on reason and science, not fear and prejudice. For individuals with HIV, and for those with other disabilities, the Court's ruling was a critical victory. But the very fact that the issues had to be decided by the Supreme Court and that only five justices joined the majority, shows the fragility of legal rights pertaining to HIV as well as the wide gulf between the perspectives of public health and those of public law. (shrink)

ABSTRACTThe idea of public reason requires that citizens in their public deliberation employ considerations stemming from a shared conception of justice. One worry is that public reason's content will be incomplete, in that it does not contain sufficient material for adequate public debate. Rawls has a way of expanding the content of public reason to address such concerns—by including in public reason all those things you and I say in our justification of the conception of justice. After arguing that this (...) strategy fails, a new way of expanding public reason's content is proposed. Instead of understanding the Supreme Court—which Rawls famously calls the “exemplar” of public reason—as an institution that appeals to exogenously determined public reasons, we should understand the judicial authority in a liberal democratic society as an endogenous fountain of public reason. (shrink)

The Native American Church is examined as an illustrative example in the political anthropology of consciousness. Specific attention is paid to the Supreme Court's ignoring of accepted research on this tradition and its sacrament, Peyote, in the case of Employment Division of Oregon v. Smith. An anthropological reaction to the Smith decision is constructed, focusing on ethnographic findings regarding Peyote that contradict the Supreme Court's ethnocentric assumptions. This paper argues that Peyote's Schedule I status is not (...) supported by the ethnographic findings. Peyote, as used in the Native American Church, is recognized as safe and therapeutic. It is also argued that the Supreme Court's rationale for denying Peyotist religious freedom is not supported by the ethnographic findings nor by legal precedent. Not only is the Native American's right to use Peyote a matter of freedom of religion, it also involves other rights such as the right to raise one's children in one's own culture and the right to be treated using a culturally relevant therapeutic modality. (shrink)

Animals in Brazil: Economic, Legal and Ethical Perspectives presents a broad overview of the complicated role of animals in Brazilian society. Its four substantive chapters survey the landscape of animal agriculture, animal protection laws, recent animal jurisprudence, and the underlying cultural factors that have shaped the Brazilian people's relationship with and treatment of animals. Despite the book's title, there is no chapter addressing economics. However, it represents the first book in English addressing the plight of animals in Brazil (...) and makes a marked contribution to animal ethics in Latin America. At its best, it is very good, and overall, the volume is a worthwhile addition to the bookshelf of anyone interested in Brazilian animal law.The introduction by the book's editor, Carlos Naconecy, does exactly what an introduction should do: it succinctly describes the content of the chapters to follow. My quibble is that while Naconecy has excellent English and expresses himself well, the essay badly needed the editorial scrutiny of a native English speaker. The succeeding chapters each begin with an abstract, a simple but useful aid to any scholar who might not be interested in all of the issues the book covers.Chapter 1, “Food Animals in Brazil: Five Decades of Transformation,” ably describes Brazil's progression from a primarily subsistence-based agrarian culture to its full-scale embrace of industrial agriculture with all of its incumbent horrors. In just 50 years, Brazil has gone from a net importer to the world's second-largest exporter.The story of the country's transition to confinement, meat-based agriculture is all too familiar. It wrought havoc on community and family ties and overwrote traditional dietary practices, leading to widespread obesity, disease, and nutrient deficiencies. It also made indifference toward agricultural animals a new national norm. The level of cruelty that is both legal and common in Brazilian industrial agriculture would strain credulity if it weren't so similar to those of so many other countries. Indeed, the authors’ discussion of the systemic animal mistreatment, devastating environmental consequences, and accompanying cultural erosion in Brazil could easily have been cut and pasted into a chapter surveying the last 50 years in the United States.The second chapter is the strongest in the collection. “The Legal Protection of Animals in Brazil: An Overview” summarizes the country's animal-legal framework and situates it within the context of Brazil's constitutional prohibition against animal cruelty. The authors explain why the constitution offers little practical protection. Under the prevailing view, only those acts undertaken for the purpose of causing needless suffering constitute cruelty. Since much animal cruelty is ostensibly done for other reasons (food, science, etc.), the cruelty prohibition does not reach the majority of offenses.The authors next construct a syllogistic argument that the current legal classification of animals as “things” rather than beings who are the subjects of rights is logically and ethically flawed. Since cruelty involves suffering, and objects cannot suffer, and since animals suffer (otherwise animal cruelty laws would be pointless), then animals must be subjects of the law. Phrased differently, animals must be rights-holders. This leads into a compelling argument that the constitution not only supports but requires such an interpretation.“Cases and Debates in the Brazilian Animal Rights Arena” does exactly what its title suggests. It looks at recent animal-related judicial developments and situates them within a broader cultural and legal context. For example, the Supreme Court recently held that the Vaquejada, a rodeo-like event involving chasing and tackling terrified cows, was unconstitutional.Immediately following the decision, the legislature amended the constitution to classify the Vaquejada as an important cultural activity and thus protected under a different constitutional provision. The courts are currently considering whether that constitutional amendment is itself unconstitutional. We are further told about movements against foie gras and vivisection and about recent developments regarding custody disputes over domestic animal companions.The final chapter, “Factors That Influence the Brazilian Ethos Regarding Animals” is a broad discussion of the ways Brazilian history and culture have impacted attitudes toward animals. It is argued that because Brazil was the last Western country to eliminate slavery, Brazilians are more prone to treat animals like property and that the Brazilian temperament makes them more likely to be passionate than pragmatic. We also learn that a cultural reluctance to protest against social wrongs enables Brazilians to remain silent in the face of animal injustice and that the country's Catholic tradition instilled the idea that only people were made in the image of God and that animals therefore matter less. These observations strike me as overbroad and problematic. For example, millions of Brazilians have spent much of the past decade protesting government corruption, and the country has an impassioned animal advocacy movement. Furthermore, it is not clear that Brazilians necessarily treat animals differently than people from other countries with very different histories.Overall, Animals in Brazil begins the work of new scholarship in English on animals in the Brazilian context. The fact that some chapters are more informative and useful than others is an inevitable by-product of an edited volume and should not deter those interested in Brazilian animal law from reading it. The excellence of the first two chapters alone makes the book worthwhile. (shrink)

On April 26, 1995, the United States Supreme Court limited the reach of the preemption provision of ERISA in New York State Conference of Blue Cross & Blue Shield Plans v. Tavelers Insurance Co. ). In Travelers, the Supreme Court upheld the validity of a New York statute requiring hospitals to collect surcharges from patients covered by commercial insurers and requiring health maintenance organizations to pay a surcharge to the state's general fund that varies depending on (...) the number of Medicaid-eligible HMO members enrolled. Neither patients insured by Blue Cross/Blue Shield plans nor the plans themselves are similarly charged under the statute. Several commercial insurers and HMOs claimed the surcharges should be preempted under ERISA because they are levied on patients whose insurance or HMO membership premiums are purchased by an ERISA plan.The ERISA preemption clause means that federal regulation, or lack thereof, supersedes state regulation that is related to employee pension and benefit plans. This preemption clause prevents states from changing health care and benefit law for a significant portion of state residents. (shrink)

The Israeli Supreme Court has become increasingly polarized between liberal and conservative judges. This phenomenon is relatively new to the Israeli Supreme Court and follows the much older and more well-known example of the U.S. Supreme Court. This article surveys both U.S. and Israeli court polarization and shows the history, reasons, and special features of polarization of both courts, including the important differences between them. It also adds a distinction to existing literature on (...) court polarization—the distinction between court polarization and politicization, and especially the distinction between “regular” polarization and “one-side” polarization. Regular court polarization happens when the court is divided roughly equally between the two main political contenders. One-side polarization happens when there is a clear advantage to one side of the political map in the make-up of the court. The current U.S. Supreme Court, with six conservative justices and only three liberal justices, is an example of one-side court polarization that is tilted to the right. The current Israeli Supreme Court is an example for one-side court polarization tilted to the left; there are 10 liberal judges and only five conservative judges on the court. The article’s main argument is that one-side court polarization presents a particularly vexing problem for the legitimacy of the court, even more so than “regular” polarization. The article concludes with a survey of possible solutions to help Israel retract itself from one-side court polarization. (shrink)

In a “mixed bag” 2023-2024 session, the U.S. Supreme Court issued a series of decisions both favorable and antithetical to public health and safety. Taking on tough constitutional issues implicating gun control, misinformation, and homelessness, the Court also avoided substantive reviews in favor of procedural dismissals in key cases involving reproductive rights and government censorship.

In Barrett v. Danbury Hospital ), the Supreme Court of Connecticut held that the fear of contracting or transmitting HIV or any other blood-borne pathogens is not a compensable injury and does not give rise to a negligence or a medical malpractice claim. The court's decision affirmed the holding of a Connecticut trial court.In June 1990, Allen Barrett was admitted to Danbury Hospital complaining of abdominal pain. He had a history of gall bladder trouble. Barrett was (...) placed on a stretcher in the emergency room. The attending physician diagnosed Barrett's pain as a gallstone condition. During the course of his examination, the doctor noticed that Barrett was sitting in blood. The physician subsequently performed a rectal examination of Barrett to locate the source of the blood. The physician determined that the patient was not bleeding, but that the blood was in fact coming from two slits in the vinyl pad that covered the stretcher on which Barrett sat. (shrink)

In a dynamic term of the United States Supreme Court in 2021-2022 a series of critical cases raise manifold changes and impacts on individual and communal health through 10 key areas ranging from abortions to vaccinations.

On June 16, 2003, the Supreme Court ruled that forced administration of antipsychotic drugs to a defendant facing serious criminal charges is appropriate in order to render that defendant competent to stand trial, but only in limited circumstances. The treatment must be medically appropriate, substantially unlikely to have side effects that may undermine the fairness of the trial, and necessary to significantly further important government interests, after taking account of less-intrusive alternatives.Charles Sell, a former dentist, had a long (...) history of mental illness. He had been hospitalized twice, in 1982 and 1984, after expressing paranoid ideas to law enforcement officials. In May 1997, Sell was charged with fifty-six counts of mail fraud, six counts of Medicaid fraud, and one count of money laundering. He was released on bail after a magistrate determined that he was currently competent to stand trial. (shrink)

This was one of SCSS President Stephen M. Krason’s “Neither Left nor Right, but Catholic” columns that appeared during 2015 in Crisismagazine.com and The Wanderer and at his blog site. It discusses the U.S. Supreme Court’s landmark 2015 decision on same-sex “marriage,” Obergefell v. Hodges, and its likely implications for religious liberty, true marriage, and children. He says it is the latest expression of concocted rights under the Court’s “substantive-due-process” doctrine. He suggests ways to respond to the (...) decision politically and legally—by citizens, organizations, and the use of executive power by a sound president in the near future, and by the Church. (shrink)

The Supreme Court against the Criminal Jury critiques the Supreme Court’s decisions to allow reduced jury sizes and less than unanimous jury verdicts to determine guilt. John A. Murley and Sean D. Sutton challenges the Court’s decisions by examining its incomplete understanding of the purpose of trial by jury and evaluating its use of inaccurate and unreliable studies as support for its decisions.

Looking at discrimination, education, environment, health and crime, this volume analyses United States Supreme Court rulings on several legal issues and proposed libertarian solutions to each problem. Setting their own liberal theory of law, each chapter discusses the law at hand, what it should be, and what it would be if their political economic philosophy were the justification of the legal practice. Covering issues such as sexual harassment, religion, markets in human organs, drug prohibition and abortion, this book (...) is a timely contribution to classical liberal debate on law and economics. (shrink)

On January 18, 2006, the United States Supreme Court unanimously held that the constitutional challenge to New Hampshire's Parental Notification Prior to Abortion Act would be remanded to the United States Court of Appeals for the First Circuit, to determine whether the Court of Appeals could, consistent with New Hampshire's legislative intent, formulate a narrower remedy than a permanent injunction against enforcement of the parental notification law in its entirety.In 2003, New Hampshire enacted the Parental Notification (...) Prior to Abortion Act. The Act specifies, in pertinent part, that “No abortion shall be performed upon an unemancipated minor or upon a female for whom a guardian or conservator has been appointed… until at least 48 hours after written notice of the pending abortion has been delivered....” The Act allows for three exceptions where a physician may perform an abortion on a minor child without parental or guardian notification. (shrink)

This paper suggests a way of thinking about the legal reasoning done by conscientious judges working in a legal system during periods when those judges believed that their Supreme Court was malfunctioning. Seeing a legal system as a shared cooperative activity allows us to best understand how legal decision-making can remain consistent when it contains elements at the highest level which are believed not to be functioning properly.

January 21, 2010 will go down as a dark day in the history of American democracy, and its decline. The editors of the New York Times did not exaggerate when they wrote that the Supreme Court decision that day “strikes at the heart of democracy” by having “paved the way for corporations to use their vast treasuries to overwhelm elections and intimidate elected officials into doing their bidding” – more explicitly, for permitting corporate managers to do so, since (...) current laws permit them to spend shareholder money without consent. (shrink)

'An excellent commentary on and an insightful contribution to the current debate on constitutional interpretation.'-Walter F. Murphy, Princeton University.

What are things like the Supreme Court? Gabriel Uzquiano has defended that they are groups, entities which are somehow composed of members (at certain times) but which, unlike sets (or pluralities), allow for fluctuation in membership. The main alternative holds that 'the Supreme Court' refers (at any time) to the set (or plurality) of their members (at the time). Uzquiano motivates his view by posing a metaphysical puzzle for this reductive alternative. I argue that a parallel (...) reasoning would also find a corresponding 'puzzle' in the case of singular terms like 'The Chief Supreme Court Justice'. (shrink)

The aim of this paper is to analyze a selection of arguments used by the Argentine Supreme Court to reduce the sentence of individuals convicted of crimes against humanity. The focus will be primarily centered on “Muiña´s case”, in which a lenient outdated ruling was made. The questions that this work will try to answer revolve around the court´s merit in issuing this lenient ruling to Muiña´s case and its justification. First, Muiña´s case is analyzed in depth. (...) Then, a critical analysis about the ruling and a decision concerning the existence of a true justification will be developed. Finally, we will discuss the appropriateness of the Court’s decision in Muiña´s case as opposed to the decision made in “Batalla´s case”, in which a less beneficial law was applied retroactively. (shrink)

Examining the psychology of Supreme Court decision-making, this book seeks to understand almost all aspects of the Supreme Court's functioning from a psychological perspective. It addresses many factors of influence, including the background of the justices, how they are nominated and appointed, the role of their law clerks, and more.

The legal language of lawyers and judges is generally dry and factual but an examination of the rulings of Israeli Supreme Court justices shows that at least some of them use very picturesque speech to support their positions. This paper describes the use of figurative language as employed by Israeli Supreme Court justices in their writing of verdicts. Examples of the use of metaphors, metonymy, word play, imagery, oxymorons, parables and allegory are cited and discussed.

In California Dental Association v. FTC, 119 S. Ct. 1604, the U.S. Supreme Court reviewed a decision by the U.S. Court of Appeals for the Ninth Circuit that a nonprofit affiliation of dentists violated section 5 of the Federal Trade Commission Act, 15 U.S.C.A. § 45, which prohibits unfair competition. The Court examined two issues: the Federal Trade Commission's jurisdiction over the California Dental Association ; and the proper scope of antitrust analysis. The Court unanimously (...) held that CDA was subject to FTC's jurisdiction, but split 5-4 in its finding that the district court's use of abbreviated rule-of-reason analysis was inappropriate.CDA is a voluntary, nonprofit association of local dental societies. It boasts approximately 19,000 members, who constitute roughly threequarters of the dentists practicing in California. Although a nonprofit, CDA includes for-profit subsidiaries that financially benefit CDA members. CDA gives its members access to insurance and business financing, and lobbies and litigates on their behalf. Members also benefit from CDA marketing and public relations campaigns. (shrink)

The Supreme Court of California held, in Delaney v. Baker, 82 Cal. Rptr. 2d 610, that the heightened remedies available under the Elder Abuse Act, Cal. Welf. & Inst. Code, §§ 15657,15657.2, apply to health care providers who engage in reckless neglect of an elder adult. The court interpreted two sections of the Act: section 15657, which provides for enhanced remedies for reckless neglect; and section 15657.2, which limits recovery for actions based on “professional negligence.” The (...) class='Hi'>court held that reckless neglect is distinct from professional negligence and therefore the restrictions on remedies against health care providers for professional negligence are inapplicable.Kay Delaney sued Meadowood, a skilled nursing facility, after a resident, her mother, died. Evidence at trial indicated that Rose Wallien, the decedent, was left lying in her own urine and feces for extended periods of time and had stage I11 and IV pressure sores on her ankles, feet, and buttocks at the time of her death. (shrink)

The Supreme Court frequently uses two tools to gather information about which cases to hear following a petition for writ of certiorari: the call for response and the call for the views of the Solicitor General. To date, there has been no empirical analysis of how the Supreme Court deploys these tools and little qualitative study. This Article fills in basic gaps in the literature by providing concrete answers to common questions regarding these two tools and (...) offers detailed analysis of how and why states, private parties, and the United States (through the Solicitor General) respond to petitions. In addition, the Article provides much-needed data for litigators and litigants to be able to estimate the probability of their case being heard by the Court, and provides insight on how to react when the Court calls for a response or calls for the views of the Solicitor General. To reach these conclusions, the Article relies on detailed, quantitative analysis of a novel, 30,000-petition dataset, as well as interviews with top Supreme Court litigators, former Supreme Court clerks, and former staff of the Clerk’s office. (shrink)

English philosopher John Stuart Mill's understanding of the freedom of speech has been increasingly adopted over the last century into the US Supreme Court's interpretation of the First Amendment, beginning with Justice Oliver Wendell Holmes Jr.'s use of an analogy that is now known as the 'marketplace of ideas'.

Almost everyone involved in the legal profession today is aware of the wide, and perhaps insurmountable, chasm between the scholarly research that takes place in elite law schools and the actual work of practicing lawyers and judges. To a greater extent than other academic professions like medicine and public health, law professors too often have little to say to working lawyers and judges, even those judges on the U.S. Supreme Court. Perhaps this has been the case from the (...) beginning, but the gap appears more dramatic in recent decades, as legal scholarship has departed from traditional doctrinal analysis and moved in more interdisciplinary and abstract theoretical directions. (shrink)

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. (shrink)

Proceduralists hold that democracy has a non-instrumental value consisting in the ideal of equality incorporated by fair procedures. Yet, proceduralism does not imply that every outcome of a democratic procedure is fair per se. In the non-ideal setting of constitutional democracies, government and legislative decisions may result from factional conflicts, or depend on majoritarian dictatorships. In these circumstances, Supreme Courts provide a guardianship against contested outcomes by enacting mechanisms of checks and balances, constitutional interpretation and judicial review. Yet, in (...) virtue of this role, Supreme Courts exercise a form of epistocratic power, which rests at odds with the ideal of political equality. We analyse this dilemma and propose a solution, arguing that Supreme Courts do not run unrestrained decisions; rather their decisional power is bound to the protective function of fundamental rights, in which their constitutional mandate ultimately consists. (shrink)