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Collegial Courts: Panel Decision Making and the U.S. Courts of Appeals  

Pamela C. Corley and Wendy L. Martinek

The three-judge panel mechanism by which the courts of appeals process almost all (though not quite all) of their cases affords scholars unique opportunities to explore how appellate court decision making may transcend being merely the sum of its parts. Specifically, court of appeals judges pursue their decision-making responsibilities as part of a collegial group, and thus it is important to understand how being a member of a multimember court influences their behavior.

Article

Comparative Abortion Law and Politics  

Udi Sommer and Aliza Forman-Rabinovici

Public debate rages around the world as to if and when a woman has a right to access abortion services. Though abortion policy has become more permissive over time in various places, there are still many countries with severe restrictions. The variety in state abortion policies at the state and regional levels reflects the different religious, cultural, and political attitudes toward this issue. Literature on this topic engages with larger theoretical debates within the study of public policy. That includes definitions of morality policy and determinants of feminist policy. Researchers continue to search for the ideal way to compare permissiveness of abortion policy in light of the extensive variation, conditions, and caveats that exist within abortion legislation. A number of variables, including female political representation, dominant religious groups in the country, and women’s movements have emerged as central correlates with permissiveness of abortion policy. The difference between de jure abortion law and de facto access also constitutes an important part of abortion policy research.

Article

Global (Distributive) Justice  

Siba Harb

Most philosophers agree that it is unjust for one’s life prospects to be determined by one’s race, gender, or social class. And most think that there are demanding duties on members of the same political community (co-citizens) to reduce inequalities that track these features of individuals. But philosophers strongly disagree about how to evaluate inequalities that track the country one is born in. Are global inequalities (inequalities among individuals living in different countries) as problematic and for the same reasons as domestic inequalities (inequalities among co-citizens)? The question of whether egalitarian principles of distributive justice extend globally, beyond the domestic sphere, has been the central question in the debate on global distributive justice. Statists argue that there is something normatively significant about the state, but not the global institutional order, which grounds one’s concerns with domestic inequalities, but not global inequalities. Global egalitarians argue that global inequalities are as unjust to the same extent and for the same reasons as domestic inequalities. The disagreement between both camps can be traced back to different normative, empirical, and methodological assumptions. Statists and global egalitarians can, however, converge on a number of important issues, and the debate can be advanced beyond the stalemate it has reached by investigating these issues of convergence. Significantly, statists can agree with global egalitarians that global justice requires equality of concern (the requirement that interests of all individuals have equal weight), and global egalitarians have reasons to take states seriously to the extent that having a world of states (or multiple political communities) can be shown to be compatible with the requirement of equal concern. Thus, it is important to work out whether individuals have a fundamental interest in being members of political communities, how that interest compares to their interests in opportunities, income, and wealth, and which institutional arraignments can advance these interests according to the right balance.

Article

Judicial Legitimacy, Political Polarization, and How the Public Views the Supreme Court  

Michael Zilis and Rachael Blandau

As of late 2020, the makeup of the U.S. Supreme Court consists of six generally conservative Republican appointees and three generally liberal Democratic appointees, one of the first times such a configuration has occurred in decades. In addition, contentious recent confirmation battles may have fundamentally altered public views about the Supreme Court. When it comes to public opinion about the Supreme Court, understanding the institution’s legitimacy and its relationship with political polarization is critical. Institutional legitimacy is a key currency for political bodies—and courts in particular—even as scholarly conceptions of legitimacy differ from popular commentary on the topic. To understand the nature of public opinion toward the Court in a polarized era, one must distinguish between specific support, a type of short-term satisfaction or approval, and diffuse support, commonly known as institutional legitimacy. Recent developments, including controversial confirmation battles and rulings, suggest that partisan and ideological cleavages may increasingly shape the Court’s legitimacy. Scholarship must continue to grapple with Supreme Court legitimacy in a time of political polarization.

Article

Prosecutors: A Cross-National Political Perspective  

Stefan Voigt

Over the past decades, prosecutors have become more and more powerful within criminal justice systems. Yet, there is still relatively little empirical research on prosecutors. Most of the literature focuses on the analysis of the prosecutorial system of a single country. Cross-country analyses are close to nonexistent. From a comparative perspective, the various possible means to establish the independence of prosecutors from government and at the same time securing their accountability to the law are of paramount interest. Regarding the former, appointment procedures, possible career paths, and the degree to which prosecutors are subject to orders both from within the prosecution agency as well as from without (e.g., the ministry of justice) are of special concern. With regard to prosecutorial accountability, it is the legality principle (also known as mandatory prosecution), the issue whether prosecutors enjoy a monopoly in the prosecution of criminals, whether decisions not to prosecute a suspect are subject to judicial review, and the transparency of the behavior of prosecutors that are key. Regarding the organizational design choices of prosecution agencies that have been implemented across countries, four different clusters can be identified. The four clusters perform markedly different in terms of the rule of law levels associated with them. The consequences of institutional design choices are surprisingly small. The de facto organization of prosecutors turns out to be far more relevant for outcomes than what is prescribed de jure. Countries in which prosecutors enjoy a high degree of de facto independence suffer significantly less from corruption than countries in which this is not the case. Given that the institutional design choices of prosecutors are of limited relevance for their de facto situation, the question is: What factors determine the de facto independence and accountability of prosecutors? It turns out that some rather stable and immutable factors are decisive: Common law legal systems do better than those belonging to the civil law legal families. Generalized trust also plays an important role. If most people believe that others can be trusted, very specific rules for the behavior of prosecutors may seem unnecessary. A number of trends regarding the organization of prosecutors can be observed in many countries, among them the increased reliance on trial waiver systems, bonus payments to incentivize prosecutors, the founding of prosecutorial councils, and prosecutorial activism. It is questionable whether the first three of these trends will increase the efficiency of prosecution agencies; rather, they are likely to lead to a deterioration in the overall rule of law score of those countries relying on them.

Article

Revolutions and Constitutional Crisis  

Johannes Vüllers

Revolutionary actions and constitutional crises are closely linked. However, research mainly looks at the two phenomena as distinct from each other. While studies on revolutionary actions are interested in the agency and the impact of the actions on the country’s institutions, legal research focuses on the constitution itself. The separation of the two strands leads to a limited understanding of their dynamics and complexity. What do we know about the relationship between revolutionary actions and constitutional crisis, and vice versa? The first question is how revolutionary actions trigger constitutional crisis, defined as a moment in which decision makers are unwilling or unable to manage the societal conflicts within the confinement of the constitutionally provided boundaries. Different types of revolutionary behavior—such as elite-led military coups, civil wars, and nonviolent resistance movements—trigger constitutional crises in many cases. They can lead to a new constitution with diverse implications for the political system. Whether the opposition or the old regime prevails in the constitutional crisis is a question of the power resources of both parties to the conflict. In some cases, the opposition movements succeed in making the political system more democratic. However, there are also cases where the constitutional crisis ultimately leads to more power for the ruling class. The relationship also works vice versa: a constitutional crisis can trigger revolutionary actions. Constitutional coups, and processes of democratic backsliding and constitutional rot, can trigger violent and nonviolent revolutionary actions. Political elites can try to change constitutional norms for their own benefit, such as extending the presidential term of office. This often leads to a storm of public protest and can become a real threat to the regime’s survival. A constitution can enter a crisis phase for a long time if it no longer serves the needs of parts of society. The injustices that thus arise within society can be a strong motive for revolutions. The combination of agency and constitutional processes is a promising avenue for future research that could help analyze the complex relationship between constitutional crises and revolutionary actions. In addition to innovative theoretical approaches, new empirical data is needed to examine the process of constitutional negotiation in more detail.

Article

Attitudes Toward LGB Families: International Policies and LGB Family Planning  

Pedro Alexandre Costa

According to recent U.S. census data, there are over 700,000 same-gender couples, of which 114,00 have children. U.K. census data further revealed over 200,000 same-gender parented families, and there is evidence that these numbers have been increasing in the last few decades. Between the late 1980s and early 1990s, research on the psychosocial well-being of LGB families was established with a focus on the potential impact of parents’ sexual orientation on the psychological adjustment of their children. Interest in LGB families was evidenced by the growing political and public attention, and became a central issue within the LGBT+ movement across the Western world, especially in Europe and the United States. However, attitudes toward LGB family policies have not evolved in a linear fashion insofar as they have accompanied the constant back and forth in LGB family policies and legislation. Negative attitudes toward LGB family policies are rooted in the negative evaluations of LGB individuals based on beliefs that LGB people are less fit as parents or unable to form and sustain healthy relationships because of their sexual or gender identity. However, these negative beliefs differ according to heterosexual individuals’ characteristics. Research has shown that men, older, less educated, non-White, politically conservative, highly religious, and authoritarian, as well as those who believe that homosexuality is controllable, strictly adhere to traditional gender roles and authorities, and do not have frequent or close contact with LGB individuals, hold higher levels of sexual prejudice toward LGB individuals and LGB family policies. As of January 2020, same-gender marriage and parenthood are recognized in around 30 countries worldwide, although some countries recognize some forms of same-gender unions, but not marriage, whereas others recognize the right of LGB individuals to have children but not to marry. LGB family policies have progressed mostly through two different pathways: (a) the judicial pathway, which has involved litigation and court rulings on specific matters related to same-gender relationships and parenthood and which was undertaken in the United States, and (b) the legislative pathway, which has relied on political discussion and policy initiatives and was undertaken in the Iberian Peninsula (Portugal and Spain). The different pathways to equality in LGB family policies have different impacts for LGB individuals. In particular, the constant negative messages regarding same-gender couples as being unable to have healthy relationships have been shown to contribute to chronic minority stress and psychological distress among LGB individuals. By contrast, the legalization of same-gender marriage and parenthood provide important benefits and protections for LGB families in addition to promoting their well-being. Examining the evolution of attitudes and legislation regarding LGB family policies is important to inform further initiatives aimed at correcting inequalities for LGB families.

Article

Courts and Same-Sex Marriage in Latin America  

Maximiliano Campana and Juan Marco Vaggione

Same-sex marriage has become one of the LGBT movement’s main demands in Latin America in the past decade. Argentina was the first Latin American country to recognize same-sex marriage in 2010, and it has been replicated in other countries such as Brazil, Uruguay, Colombia, Ecuador, Costa Rica, and Mexico. In all these cases, the courts have been an important ally of the LGBT movement, generating the constitutional grounds and decisions for the recognition and expansion of the rights of same-sex couples. In this sense, litigation has proved to be a powerful strategy for LGBT groups for their demands of recognition, and in the analyzed cases, the judiciary has been receptive to these petitions and claims assuming different roles. The litigation experience in Latin America has been shaped by the U.S. litigation model for the advancements of civil rights, a model that has had an impact in the LGBT campaigns for same-sex marriage, and as a result it is possible to identify different roles that the Latin-American courts have played in protecting same-sex couples and legally recognizing their partnerships in the region. Thus the historical developments of the strategic litigation have been crucial for the recognition and advancement of rights, generating a type of litigation that was originated in the United States and later replicated in Latin America, thanks to institutional changes and successful experiences of same-sex marriage litigation. However, the courts have assumed different roles when recognizing the right to marriage between same-sex couples in the region, according to the legal, social, political, and international context where they are inserted, showing that the “politization of the justice” and the “judicialization of politics” are two interconnected procceses that combine in different and complex manners when debating sexuality in the region.

Article

The EU Migration Crisis: A Crisis Analysis Case Study  

Peter Slominski

The European Union (EU) migration crisis has been part and parcel of a conglomerate of crises that have affected the EU since the late 2000s, as have the financial and sovereign debt crisis, “Brexit,” the Russia–Ukraine conflict, as well as tensions within transatlantic relations. Scholarship on the EU has devoted much attention in assessing what the migration crisis means for EU integration at large. In particular, EU scholars are interested why the migration crisis has led to political gridlock and a renationalization of border controls rather than a deepening of integration. While they differ in their explanations, these explanations shed light on different aspects of the crisis and are far from mutually exclusive. Scholars who are more interested in the area of EU Justice and Home Affairs (JHA) largely agree with EU theorists that the field suffers from an incomplete governance design, the dominance of EU member states, and weak supranational capacities. Their analysis also focuses on intra-EU dynamics but offers a more nuanced empirical assessment of relevant EU institutions and decision-making in the course of managing the migration crisis. This growing body of research produces valuable insights and largely confirms existing scholarship, including that on the growing securitization and externalization of EU asylum and migration policy. The EU’s understanding as a norm-based power is particularly challenged by the migratory movements in the wake of the crisis. A small but growing scholarship analyses how the EU is balancing its non-entrée policy with its legal obligation, and what kind of governance arrangements result from that. While this scholarship has enriched our understanding of the EU migration crisis, it has not generated a major refinement of the standard approaches of EU theorists and JHA scholars. To further enrich the literature on the migration crisis, scholars should go beyond studying the dynamics of EU decision-making and the role of EU institutions. Such an approach should engage more systematically with international actors and institutions that have the capacity to influence EU migration policy. At the same time, global phenomena such as war, poverty, or climate change should also be taken into account in assessing the EU’s room for maneuver in handling migratory pressures. Future research on the migration crisis as well as on migration challenges should thus not only connect with other subfields of political science, such as policy analysis or international relations, but also open up to other disciplines such as law, demography, or environmental studies.

Article

HIV/AIDS Politics and Policy in South Asia  

Nayani Rajapaksha and Chrishantha Abeysena

Human immunodeficiency virus (HIV) is a major global public health issue. In 2019, an estimated 38 million people worldwide were living with HIV. Of these, 2–3 million HIV cases were estimated to be in the South Asia region. In South Asia, India has the largest population (1.366 billion), whereas the Maldives has the smallest (0.54 million) population. In line with global strategies, most of the countries adapt strategies to end HIV in 2030. The rights-based approach is a guiding principle of HIV policy in most countries. Integrated HIV testing and counseling services are implemented through facility-based and community-based services. The percentage of people who are on Anti-Retroviral Treatment among the diagnosed, is highest (81%) in Nepal. The Maldives and Sri Lanka achieved elimination of mother-to-child transmission of HIV in 2019. Coverage for preventive programs is low in all the countries. Condom usage is low in all the key population groups in the region except India, Nepal, and Sri Lanka. Sex education is integrated into the school curriculum in Nepal and Sri Lanka. Knowledge of HIV prevention among the young population is low in all the countries. India, Nepal, and Pakistan provide both needle and syringe programs and opioid substitution therapy. A high percentage of people who are injecting drug users (IDUs) have safe injecting practices in all the countries. The prevalence of HIV is low in all the countries, but concentrated epidemics continue in some countries. A higher prevalence of HIV is reported among IDUs in all the countries except Bhutan. The prevalence of HIV is also higher among transgender people in Nepal and Pakistan. Since 2010, a declining trend in new HIV infections has been observed in Bhutan, India, Nepal, and Sri Lanka, and an increasing trend has been observed in Afghanistan, Bangladesh, and Pakistan. Some South Asian countries have many punitive laws, while others have introduced legal protection for key populations. Sex work is criminalized in all the countries. In Bhutan, when men who have sex with men and IDUs seek health services, the health worker is obliged to report them to the police. Nepal became the first South Asian country to identify the existence of “sexual and gender minorities” in its constitution. There is a protective legal environment for homosexuality in Nepal. India also has several laws protecting homosexuals, transgender people, and IDUs, and laws against sexual harassment in the workplace. India has become the first South Asian country to implement special protective laws on HIV/AIDS. India has criminalized discrimination against people living with HIV/AIDS. The presence of stigma and discrimination is a major critical factor for the national approach to HIV prevention in all South Asian countries. Stigma and discrimination are observed in healthcare facilities, within families, in employment, and in educational institutions, and many countries have developed antidiscrimination policies in response. Throughout the region, poverty, low literacy, outbound migration, tourism, internal displacement, disasters, poor infrastructure of healthcare systems, population size, and social and cultural values have hampered the response to HIV.