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The American Judicial Process and Why It Matters  

Lisa M. Holmes

The American judicial system is not a static, simple, or mechanical entity. Rather, it is a complex organization that is developed and staffed in response to changing caseload and societal pressures through a process that is inherently political. The key personnel who help the judiciary function bring varied backgrounds and perspectives with them that influence the work they do. As is the case with any political system, understanding American politics and policy making requires an understanding of the judiciary’s role in the American political system. In addition, on a daily basis, courts function to resolve disputes. While most cases have little direct impact on American policy or society broadly speaking, the resolution of these cases is important to those who turn to the courts of law to resolve their disputes.

Article

Europe’s Supranational Courts and LGBT Rights  

M. Joel Voss

Europe has some of the most powerful human rights legal institutions in the world including two supranational human rights courts—the Council of Europe’s European Court of Human Rights and the European Union’s Court of Justice (hereafter, together—the Courts). After decades of relative quiet, the Courts have begun hearing more cases concerning LGBT rights. Judgments of the Courts have advanced some facets of LGBT rights like anti-discrimination in the workplace while disappointing gay-rights advocates in other areas, for example family life and asylum. Scholarship on European courts and LGBT rights is not as developed as scholarship on norm advocacy or policy diffusion within states in Europe. The research that does exist looks at how decisions by the European Court of Human Rights and the European Court of Justice deal with current European law, how the institutions are designed, or how the supranational courts may act as agents of change or status quo institutions in shaping wider European behavior. This lack of newer research on the Courts presents ample opportunity for new avenues of research that examines not only how decisions are made at the Courts but also how states implement decisions and how states view the legitimacy of each Court.

Article

Judicial Controls Over the Bureaucracy  

Calliope Spanou

Judicial control over the bureaucracy is a means to defend the rule of law and important principles of democratic governance. It refers to the power of the courts to consider whether the actions of public authorities respect the limits prescribed by law. Regimes of judicial control vary in legal and administrative systems. Two major traditions can be mainly distinguished. The first characterizes continental Europe. It assigns judicial review to specialized administrative courts and involves a special branch of law, that is, administrative law. The second relies on ordinary courts and characterizes the Anglo-American system of common law. The two traditions also differ regarding the role of the courts and particularly their possibility to shape rules (common law tradition) or to apply rules (continental tradition). The expansion of state activities, including economic and social regulation and welfare service provision, has blurred the old politics–administration distinction since more and more decisions are delegated by parliaments to the administration, endowing it with wide discretionary powers. These developments have added a new meaning to the implementation of the rule of law. When the content of decisions is bound by a legal rule, legal compliance is more straightforward than when there is a margin of appreciation and choice. Circumscribing administrative discretion passes first and foremost from regulating the process of decision-making. Procedural standards have indeed been an area of primary concern for courts. Increasingly, nevertheless, substantive aspects of the administrative decision-making process and even service provision come under judicial scrutiny. Its extent inevitably differs from one legal system to another. The intensity of judicial review and its impact on (a) administrative operation and (b) policy decisions raise critical questions: how is it possible to achieve a balance between managerial flexibility, efficiency, and responsibility on the one hand and legal accountability on the other? To what extent may the courts substitute their own judgment for that of policymakers and the administrative or expert opinion underlying the decision under examination? How far do they go in scrutinizing policymaking and implementation? Judicial control involves constraining as well as constructive effects on the administration. It may contribute to an institution-building process (e.g., strengthening of Weberian-type features, increasing formalization, etc.) and to the agenda-building process, and it may influence policymaking. In certain contexts, courts even tend to become political actors. The reverse side is that they may step into matters of management and policymaking for which they are not prepared or institutionally responsible. This points to potential tensions between the administration (the executive) and the judiciary but also underlines the limitations of judicial control. Delicate issues regarding the separation of powers may emerge. Furthermore, cost, delays, the degree of administrative compliance with judicial decisions, and the ability of courts to integrate into their reasoning issues of efficiency and effectiveness constitute growing challenges to judicial control.

Article

LGBTI Transnational Law: Sex as Crime, Violence as Control  

Berta Esperanza Hernandez-Truyol

It is impossible to divorce the criminalization of LGBTI conduct from the social, institutional, and extra-legal violence to which individuals within this community are subjected, as laws are a mirror of a society’s values. The foundation for laws that punish non-hetero-normative sexualities and gender expressions are societal constructions of hetero-normativity. Lawmakers codify their generalized views about what roles persons should fulfill or perform based on preconceptions regarding the attributes, behaviors, or characteristics of a person, class, or group. Non-hetero-normative sexual orientations and gender identities challenge traditional notions of sexuality and gender. Violence is used as a way to control the bodies of those who exhibit non-heteronormative traits and values, as well as a form of social control to reinforce sexual and gender norms. The distinctions countries create in the targeted illegality of “male” and “female” homosexuality demonstrate the conflation of sex, gender identity, and sexual orientation. Laws that ban expressive conduct and effectively eliminate lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons from public discourse have historical roots in Christian and Muslim religious traditions. Whether codified or not, violence against LGBTI individuals is a consequence of deeply embedded gender inequality. Such inequality manifests in social and physical violence that ultimately punishes, controls, and erases LGBTI persons. Although international bodies have reacted against such violence by ratifying legal instruments to protect the LGBTI community, changing social conditions and preconceptions has proven to be the most effective route to protecting LGBTI persons’ human rights.

Article

Justice and Home Affairs in the European Union  

Florian Trauner and Ariadna Ripoll Servent

Justice and home affairs (JHA) is one of the most salient policy fields at European Union (EU) level. It deals with issues closely related to the sovereignty of member states including immigration, borders, and internal security. This article takes stock of the policy’s development and current academic debates. It argues that EU justice and home affairs is at a crossroads. Most EU actors underline the value added of European cooperation to tackle transnational threats such as terrorism and organized crime as well as the challenge of international migration. Indeed, the EU has increased its operational cooperation, data-sharing and legislative activities. The EU home affairs agencies, notably the European Police Office (Europol) and European Border and Coast Guard Agency (Frontex), have been substantially empowered. Yet JHA has also become a playing field for those attempting to politicize the European integration process. Therefore, recent years have seen major conflicts emerge that risk fragmenting the EU. These include controversies over the distribution of asylum seekers within the EU and the upholding of rule of law standards in some Eastern European states. Scholars have followed these developments with interest, contributing to a multifaceted and rich literature on aspects such as the dynamics of EU decision-making and the policy’s impact on the member states’ respect for fundamental rights and civil liberties. Promising avenues of further research include the implications of the politicization of the field and the consequences of ever more interconnected internal security databases and technologies.

Article

Transgender Law and Policy in the United States  

Shannon Gilreath

Transgender people have a complicated history in U.S. law and policy. Once thought of as a symptom of homosexuality, gender nonconformity has long been the subject of social disapprobation and legal sanction, including criminalization. Beginning in the 1950s, an emergent interest by the medical community in individuals suffering from “gender dysphoria” precipitated an identity politics primarily organized around a goal of access to competent medical care and treatment for transsexual individuals. In ways both significant and ironic, this medicalization both promoted a binary ideology of gender, most obvious in concepts like male-to-female or female-to-male transsexualism, and created space for more transformative concepts of gender fluidity and transgender identity to emerge. Long conceptualized as a kind of subsidiary of the gay and lesbian rights movement in the United States, a status that entailed considerable turmoil, the transgender movement, especially since the 1990s, has emerged as a vocal and relatively effective rights lobby in its own right. The advent of the Trump administration presents a pivotal moment that will likely test not only the durability of recent policy gains but also whether those gains can be expanded in any significant measure.

Article

Trial Courts in the United States  

Christina L. Boyd and Adam G. Rutkowski

Trial court judges are often referred to as the workhorses of the judicial system. This is unsurprising given that millions of civil and criminal cases are filed and resolved in U.S. state and federal trial courts each year. Very few of these cases ever reach appellate courts, meaning that trial courts are often the first and only court with which people directly interact. At the same time, trial courts can make local and national policy, both in individual cases and in the aggregate. This important role of trial courts and their actors has not gone unnoticed by scholars across social science disciplines. One can consider trial courts in a broad sense by tracking the historical developments that led to the trial courts in the United States. As caseloads have increased, trial courts—particularly those with specialized jurisdictions—have been created out of necessity. State trial courts feature variation in their judicial selection methods, including elections and appointments. At the federal level, increased polarization has led to contentious partisan confirmation battles for federal trial court judges. Trials are a rare occurrence, with plea agreements and settlements being the most frequent methods of resolving cases. To understand trial court actor behavior, it is important to remember that state and federal trial courts sit at the bottom of their judicial hierarchies. The preferences of their hierarchical superiors, along with the presence of high trial court caseloads and the rarity of trials, rein in judges’ discretion and the potential effects of their personal characteristics and attitudes. Because of these judge constraints, actors such as prosecutors, defense attorneys, and juries play a significant role in trial court outcomes. As the literature reveals, the “repeat players” in trial courts hold significant advantages over less experienced litigants and attorneys that affect their likelihood of gaining favorable outcomes, among other things. Race and gender of these actors can have significant effects on behavior in certain types of cases. There are many hurdles that remain for scholars seeking to study trial courts. For example, state trial courts, in particular, continue to be difficult to study empirically. This is due largely to a lack of data availability. Relatedly, scholars must continue to strive to find ways to study trial court outcomes and events that do not lead to published opinions—for example settlements, plea bargains, prosecutorial declinations, and many decided motions. Each of these involves important decisions and outcomes that affect parties and may be affected by judges and lawyers.

Article

LGBT Discrimination, Subnational Public Policy, and Law in the United States  

Christy Mallory and Brad Sears

LGBT people in the United States continue to experience discrimination because of their sexual orientation and gender identity, despite increasing acceptance of LGBT people and legal recognition of marriage for same-sex couples nationwide. This ongoing discrimination can lead to under- and unemployment, resulting in socioeconomic disparities for LGBT people. In addition, empirical research has linked LGBT health disparities, including disparities in health-related risk factors, to experiences of stigma and discrimination. Currently, federal statutes in the United States do not prohibit discrimination based on sexual orientation or gender identity in employment, housing, or public accommodations, leaving regulation in this area primarily to state and local governments. This creates a limited and uneven patchwork of protections from discrimination against LGBT people across the country. Despite public support for LGBT-inclusive non-discrimination laws across the country, in 28 states there are no statewide statutory protections for LGBT people in employment, housing, or public accommodations. To date, only 20 states and the District of Columbia have enacted comprehensive non-discrimination statutes that expressly prohibit discrimination based on both sexual orientation and gender identity in all three of these areas. One additional state has statutes that prohibit sexual orientation discrimination, but not gender identity discrimination, in these areas. One other state prohibits discrimination based on sexual orientation and gender identity in employment and housing, but not in public accommodations. In states without statutes that prohibit discrimination based on sexual orientation and/or gender identity, there are other policies that afford LGBT people at least some limited protections from discrimination. In some of these states, state executive branch officials have expanded non-discrimination protections for LGBT people under their executive or agency powers. For example, in three states, state government agencies have expanded broad protections from sexual orientation or gender identity discrimination through administrative regulations. And, in 12 states without statutes prohibiting discrimination against LGBT people, governors have issued executive orders that protect state government employees (and sometimes employees of state government contractors) from discrimination based on sexual orientation and gender identity. In addition, local government ordinances provide another source of protection from discrimination; however, these laws are generally unenforceable in court and provide much more limited remedies than statewide non-discrimination statutes. In recent years, lawmakers have increasingly attempted to limit the reach of state and local non-discrimination laws, which can leave LGBT people vulnerable to discrimination. For example, some states have passed laws allowing religiously motivated discrimination and others have passed laws prohibiting local governments from enacting their own non-discrimination ordinances that are broader than state non-discrimination laws. While most of these bills have not passed, the recent increase in the introduction of these measures suggests that state legislatures will continue to consider rolling back non-discrimination protections for LGBT people in the coming years. Continued efforts are required at both the state and federal levels to ensure that LGBT people are fully protected from discrimination based on their sexual orientation and gender identity throughout the United States, including federal legislation and statewide bills in over half the states.

Article

LGBTQ Family Law and Policy in the United States  

Erin Mayo-Adam

There is a growing body of research on law and policy concerning lesbian, gay, bisexual, transgender, and queer (LGBTQ) family law and policy. LGBTQ families have existed for centuries despite laws and policies that criminalize their relational practices. However, the legal landscape has shifted a great deal over the past few decades, in large part due to the increased visibility of LGBTQ kinship networks and new constitutional protections for same-sex marriage. With this said, legal protections for LGBTQ families vary widely by state, especially parental, adoption, and foster care rights. Historically, family law and policy has fallen within the realm of state power, with some important exceptions (e.g., the Supreme Court has recognized a fundamental right to parent for legal parents). For this reason, there are broad protections afforded to LGBTQ kinship networks in some states, especially those with large urban and more liberal populations, and barriers that stand in the way of LGBTQ parental rights in other states that are more conservative or rural. The legalization of marriage equality in Obergefell v. Hodges did standardize some protections for same-sex couples in traditional relationships across the United States. Yet the case also presents new problems both for LGBTQ families that are more heteronormative and those that are not because it fails to recognize a fundamental right to parent for LGBTQ people who create non-biological families and live non-traditional lives. In addition to these legal and policy changes, social scientists have used both qualitative and quantitative methodologies to shed light on the problems faced by LGBTQ families politically and legally. Researchers have examined how LGBTQ families attempt to protect their ability to parent in family court, how LGBTQ kinship networks identify innovative legal and political strategies aimed at overcoming barriers to legal recognition, and how LGBTQ identity is both constituted and made invisible through family law. Furthermore, scholars have produced a wealth of research refuting the myth that LGBTQ people are inadequate parents since the late 1980s and this research has been used in court cases across the United States to facilitate the legal recognition of LGBTQ families. Despite this research, gaps in both scholarship and legal recognition remain. Scholarship remains startlingly sparse given the legal and political barriers that stand in the way of LGBTQ family recognition, especially for LGBTQ people of color and trans and queer people. In order to address this gap, scholars should devote more resources to research on families that include LGBTQ people of color and trans and queer people, research on non-traditional queer kinship networks, and research on the unique ways that LGBTQ families are responding to political and legal barriers at the local level.

Article

The European Court of Justice (ECJ)  

Sabine Saurugger and Fabien Terpan

Considered an unusually powerful actor that has furthered European integration, the Court of Justice of the European Union (CJEU) has attracted considerable interest from both scholars and the public. Legal scholars and political scientists, as well as historians, have studied the Court in the context of it being one of the main actors in the integration process. Those that saw European integration as “integration through law” originally considered the Court to be the core element driving this process. The Court’s case law has influenced market integration, the balance of power among the EU’s institutions, and the “constitutional” boundaries between supranational and national competences. The pathbreaking rulings Costa vs. Enel and van Gend en Loos introduced new legal principles of direct effect and primacy in the 1960s; the 2007 Laval and Viking rulings triggered criticism of the Court’s decision, which was said to put the rights of companies above those of workers; whereas the Mangold ruling in 2005 on age discrimination was widely welcomed in spite of some negative reactions in Germany. Hence, while “integration through law” remains a powerful narrative in the academic field of European studies, the Court’s decisions and its role in the EU system have not remained unchallenged. This view of the Court as being less central to European integration is based on two developments in this field of study. On the one hand, research findings based on various analytical approaches—from rational choice to post-positivist—suggest that “integration through law” since the beginning of European integration has been a far less straightforward process than we have otherwise been led to believe. Scholars assert that the Court has been constrained by political, administrative, and constitutional counteractions since its establishment in 1952. On the other hand, scholars have identified a number of developments in the integration process from the early 1990s and the Maastricht Treaty, such as the increase in new modes of governance and intergovernmental decision-making, that explain why the Court’s role has come into question. Understanding these debates is crucial to grasping the broader institutional as well as political and legal developments of European integration.