Not to be confused with President, nor [the plural] with "precedence".

The examples and perspective in this article may not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (December 2010)

In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases."^[1]

In other words, precedent can be defined as "an already decided decision which furnishes the basis for later cases involving similar facts and issues."

Type of precedent[link]

Binding precedent[link]

Precedent that must be applied or followed is known as binding precedent (alternately metaphorically precedent, mandatory or binding authority, etc.). Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court that is within the appeals path of cases the court hears. In state and federal courts in the United States of America, jurisdiction is often divided geographically among local trial courts, several of which fall under the territory of a regional appeals court. All appellate courts fall under a highest court (sometimes but not always called a "supreme court"). By definition, decisions of lower courts are not binding on courts higher in the system, nor are appeals court decisions binding on local courts that fall under a different appeals court. Further, courts must follow their own proclamations of law made earlier on other cases, and honor rulings made by other courts in disputes among the parties before them pertaining to the same pattern of facts or events, unless they have a strong reason to change these rulings (see Law of the case re: a court's previous holding being binding precedent for that court).

One law professor has described mandatory precedent as follows:

Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to the disposition of the precedent case; (3) the significant facts of the precedent case are also presented in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant.^[2]

In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of the precedent.

Under the U.S. legal system, courts are set up in a hierarchy. At the top of the federal or national system is the United States Supreme Court, and underneath are lower federal courts. The state court systems have hierarchy structures similar to that of the federal system.

The U.S. Supreme Court has final authority on questions about the meaning of federal law, including the U.S. Constitution. For example, when the Supreme Court says that the First Amendment applies in a specific way to suits for slander, then every court is bound by that precedent in its interpretation of the First Amendment as it applies to suits for slander. If a lower court judge disagrees with a higher court precedent on what the First Amendment should mean, the lower court judge must rule according to the binding precedent. Until the higher court changes the ruling (or the law itself is changed), the binding precedent is authoritative on the meaning of the law.

Although state courts are not part of the federal system, they are also bound by U.S. Supreme Court rulings on federal law. State courts are not generally bound by Federal District courts or Circuit courts, however.^[3][4] A federal court interpreting state law is bound by prior decisions of the state supreme court.^[5]

Lower courts are bound by the precedent set by higher courts within their region. Thus, a federal district court that falls within the geographic boundaries of the Third Circuit Court of Appeals is bound by rulings of the Third Circuit Court, but not by rulings in the Ninth Circuit, since the Circuit Courts of Appeals have jurisdiction defined by geography. The Circuit Courts of Appeals can interpret the law how they want, so long as there is no binding Supreme Court precedent. One of the common reasons the Supreme Court grants certiorari (that is, they agree to hear a case) is if there is a conflict among the circuit courts as to the meaning of a federal law.

Persuasive precedent[link]

Precedent that is not mandatory but which is useful or relevant is known as persuasive precedent (or persuasive authority or advisory precedent). Persuasive precedent includes cases decided by lower courts, by peer or higher courts from other geographic jurisdictions, cases made in other parallel systems (for example, military courts, administrative courts, indigenous/tribal courts, state courts versus federal courts in the United States), and in some exceptional circumstances, cases of other nations, treaties, world judicial bodies, etc.

In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through its adoption by a higher court.

Critical analysis of precedent[link]

Court formulations[link]

The United States Court of Appeals for the Third Circuit has stated:

A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy.^[6]

The United States Court of Appeals for the Ninth Circuit has stated:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.^[7]

Justice McHugh of the High Court of Australia in relation to precedence remarked in Perre v Apand:

[T]hat is the way of the common law, the judges preferring to go 'from case to case, like the ancient Mediterranean mariners, hugging the coast from point to point, and avoiding the dangers of the open sea of system or science

Academic study[link]

Precedents viewed against passing time can serve to establish trends, thus indicating the next logical step in evolving interpretations of the law. For instance, if immigration has become more and more restricted under the law, then the next legal decision on that subject may serve to restrict it further still.

Scholars have recently attempted to apply network theory to precedents in order to establish which precedents are most important or authoritative, and how the court's interpretations and priorities have changed over time.^[8]

Super stare decisis[link]

Super-stare decisis is a term used for important precedent that is resistant or immune from being overturned, without regard to whether correctly decided in the first place. It may be viewed as one extreme in a range of precedential power,^[9] or alternatively, to express a belief, or a critique of that belief, that some decisions should not be overturned.

In 1976, Richard Posner and William Landes coined the term "super-precedent," in an article they wrote about testing theories of precedent by counting citations.^[10] Posner and Landes used this term to describe the influential effect of a cited decision. The term "super-precedent" later became associated with different issue: the difficulty of overturning a decision.^[11] In 1992, Rutgers professor Earl Maltz criticized the Supreme Court's decision in Planned Parenthood v. Casey for endorsing the idea that if one side can take control of the Court on an issue of major national importance (as in Roe v. Wade), that side can protect its position from being reversed "by a kind of super-stare decisis."^[12]

The issue was raised again in the questioning of Chief Justice John G. Roberts and Justice Samuel Alito during their confirmation hearings before the Senate Judiciary Committee. Before the hearings the chair of the committee, Senator Arlen Specter of Pennsylvania, wrote an op/ed in the New York Times referring to Roe as a "super-precedent." He mentioned the concept (and made seemingly humorous references to "super-duper precedent") during the hearings, but neither Roberts nor Alito endorsed the term or the concept.^[13]

Criticism of Precedent[link]

In a controversial 1997 book, attorney Michael Trotter blamed over-reliance by American lawyers on binding and persuasive authority, rather than the merits of the case at hand, as a major factor behind the escalation of legal costs during the 20th century. He argued that courts should ban the citation of persuasive precedent from outside their jurisdiction, with two exceptions:

(1) cases where the foreign jurisdiction's law is the subject of the case, or

(2) instances where a litigant intends to ask the highest court of the jurisdiction to overturn binding precedent, and therefore needs to cite persuasive precedent to demonstrate a trend in other jurisdictions.^[14]

See also[link]

Wikiquote has a collection of quotations related to: Precedents

• Law of Citations (Roman concept)
• Binding precedent
• Case citation
• Case of first impression
• Distinguish
• First impression
• Persuasive precedent
• Qiyas
• Question of fact
• Ratio decidendi
• Stare decisis
• Commanding precedent

Notes[link]

1. ^ Black's Law Dictionary, p. 1059 (5th ed. 1979).
2. ^ Marjorie D. Rombauer, Legal Problem Solving: Analysis, Research and Writing, pp. 22-23 (West Publishing Co., 3d ed. 1978). (Rombauer was a professor of law at the University of Washington.)
3. ^ http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/tlr51&div=41&id=&page=
4. ^ http://en.wikipedia.org/wiki/United_States_federal_courts
5. ^ http://faculty.law.lsu.edu/toddbruno/mandatory_v__persuasive.htm
6. ^ Allegheny General Hospital v. NLRB, 608 F.2d 965, 969-970 (3rd Cir. 1979) (footnote omitted), as quoted in United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996).
7. ^ United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996).
8. ^ James H. Fowler and Sangick Jeon, "The Authority of Supreme Court Precedent," Social Networks (2007), doi:10.1016/j.socnet.2007.05.001
9. ^ Sinclair, Michael. "Precedent, Super-Precedent", George Mason Law Review (14 Geo. Mason L. Rev. 363) (2007)
10. ^ Landes, William & Posner, Richard. "Legal Precedent: A Theoretical and Empirical Analysis", 19 Journal of Law and Economics 249, 251 (1976).
11. ^ Hayward, Allison. The Per Curiam Opinion of Steel: Buckley v. Valeo as Superprecedent?, Cato Supreme Court Review 195, 202, (2005-2006).
12. ^ Maltz, Earl. "Abortion, Precedent, and the Constitution: A Comment on Planned Parenthood of Southeastern Pennsylvania v. Casey", 68 Notre Dame L. Rev. 11 (1992), quoted by Rosen, Jeffrey.So, Do You Believe in 'Superprecedent'?, NY Times (2005-10-30).
13. ^ Benac, Nancy. Roberts Repeatedly Dodges Roe v. Wade, Associated Press (2005-09-13): Specter asked, "Would you think that Roe might be a super-duper precedent?"
14. ^ Michael H. Trotter, Profit and the Practice of Law: What's Happened to the Legal Profession (Athens, GA: University of Georgia Press, 1997), 161-163.

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Sanjay Dutt
Born	Sanjay Balraj Dutt (1959-07-29) 29 July 1959 (age 52) Mumbai, Maharashtra, India
Occupation	Film actor, film producer, comedian, politician, television presenter
Years active	1972, 1981–present
Spouse	Richa Sharma (1987–1996) (deceased) Rhea Pillai (1995–2005) (divorced)[1] Manyata Dutt (2008–present)[2]
Children	Trishala, Shahraan, Iqra
Parents	Sunil Dutt Nargis Dutt

Sanjay Dutt (born 29 July 1959) is a prominent Indian Hindi film star, producer and politician. Dutt, son of Hindi film actors Sunil Dutt and Nargis Dutt, made his acting debut in 1981. He has since featured in films that are amongst some of the most popular Hindi language films of the past three decades.

Personal life[link]

Dutt was born on 29 July 1959 to Bollywood megastars Sunil Dutt and Nargis and was educated at The Lawrence School, Sanawar.^[3] Dutt married the actress Richa Sharma in 1987.^[4] Sharma died of brain tumour. The couple have a daughter, Trishala, born in 1987, who lives in the United States with her grandparents, following a custody battle with Dutt after the death of his wife.^[5] Dutt's second marriage was to model Rhea Pillai in 1998.^[6] They divorced in 2005. Dutt married Manyata (also known as Dilnawaz Sheikh)^[7] in 2008 at a private ceremony in Goa, after two years of dating.^[8] On 21 October 2010, he became a father to twins, a boy named Shahraan and a girl named Iqra.^[9] He is well known for several altercations with the law, along with many other controversies throughout his life, as well as drug addiction in his early years.^{[citation needed]} He spent 5 months in prison in late 1982 after being caught in possession of illegal substances, upon his release he spent 2 years in the United States, the majority of which was spent in a Texan rehab clinic before returning to India and resuming his career.

Film career[link]

As a child actor, Dutt appeared in the 1972 film Reshma Aur Shera, which starred his father; he appears briefly as a qawali singer. Dutt made his Bollywood movie debut with Rocky in 1981. His mother passed away three days before the film's premiere. He went on to star in Vidhaata, the highest grossing Hindi film of 1982. In 1985 he shot for his first film in three years with Jaan ki baazi over the rest of the 1980s, Dutt appeared in successful films such as Main Awara Hoon (1983), Jeeva (1986), Mera Haque (1986), Immandaar, Inaam Dus Hazaar (1987), Jeete Hain Shaan Se (1987), Ilaaka (1989), Hum Bhi Insaan Hain (1989), Mardon Wali Baat (1988), Kanoon Apna Apna (1989), and Taaqatwar (1989).

The 1986 film Naam was Dutt's first major critical success, earning praise for his sensitive portrayal of lead character Vicky Kapoor. He also received critical acclaim for his performances in Mahesh Bhatt's Kabzaa and J. P. Dutta's 1989 Hathyar.^{[citation needed]} His successes continued in the early 1990s, with films that include Tejaa, Thanedaar, Khoon Ka Karz, Gumrah, Sahibaan and Aatish. He went on to star in some of the most era-defining Indian films of the 1990s such as Sadak, Saajan (for which he was nominated for the Filmfare Best Actor Award) and Khal Nayak, for which he earned his second Filmfare Best Actor Award nomination. Three weeks before its release, however, in April 1993, he was arrested, charged with involvement in the 1993 Mumbai bombings.

Dutt was imprisoned for most of the next four years, while films he had worked in continued to appear from time to time. Finally released on bail in late 1997, he returned to the screen in director Ram Gopal Verma's now cult film Daud, but despite the movie taking in a phenomenal opening the film crashed and was labelled a flop by critics. He then played a supporting role in the 1998 hit Dushman.

1999 was seen as Sanjay's comback year as he started the year off by starring in the Mahesh Bhatt directed hit Kartoos along with Khoobsurat, Daag: The Fire, Haseena Maan Jayegi and, most importantly, the Award winning Vaastav: The Reality, for which he won his first Filmfare Best Actor Award. His supporting role in 2000's Mission Kashmir won him critical acclaim and a number of awards and nominations, as did his subsequent performance in Kurukshetra. As the decade went on, he continued to play important roles in popular and critical successes such as Jodi No.1 (2001), Pitaah, Kaante (2002) and the National Award-winning blockbuster Munna Bhai M.B.B.S., which also garnered him several awards. Later successes came with Musafir (2004), Plan (2004), Parineeta (2005) and Dus.

The blockbuster sequel Lage Raho Munna Bhai released in late 2006, coinciding with the start of the Mumbai bombing's trial where the nation became transfixed with Dutt's court ongoings which saw him found not guilty of terrorism related acts but jailed on two occasions between 2006-2007 for short periods, as he was found guilty under the possesion of arms act despite this he continued appearing in successes like, Dhamaal (2007), Shootout at Lokhandwala (2007), and All The Best: Fun Begins (2009), Double Dhamaal (2011) and more recently Agneepath which earned him major critical acclaim once again.

In 2006 news channel NDTV named him Indian of the Year.In 2007 he received an award from the prime minister Manmohan Singh for his work in the Munna bhai series.^{[citation needed]}. In January 2008,Indian film institute Filmfare listed 14 movies featuring Dutt in its top 100 grossing movies of all time list.

Illegal possession of arms[link]

Due to terrorist interactions, and supposed weapons possession, on 19 April 1993, Sanjay was arrested under the Terrorist and Disruptive Activities Act (TADA).^[10] He spent 16 months in jail until he was granted bail in October 1995 by the Supreme Court of India. He was later re-arrested in December 1995 and re-released in April 1997 once again on police bail terms. In 2006 the case opened for sentencing for all accused (see below). The period between 2006-2007 saw Dutt spend 7 months in Arthur Road Prison and Pune prison on three occasions for arms offences, although in 2006 Dutt was finally acquitted of any TADA-related offenses but was charged under the illegal possession of arms act.

In November 1993, a 90,000-page long primary chargesheet was filed against the 189 accused in the 1993 Mumbai bomb blasts case including Sanjay.^[11]

In March 2006, when framing muthar charges against extradited Abu Salem and co-accused Riyaz Siddiqui in the 1993 Mumbai bomb blasts case, the prosecution said that Salem delivered 9 AK-56 rifles and some hand grenades to Dutt at his Bandra house in the second week of January 1993.^[12]

On 13 February 2007, the special branch of Mumbai police arrested Abdul Qayyum Abdul Karim Shaikh, a close aide of Dawood Ibrahim and wanted by Mumbai Police Special Task Force for his role in the 1993 Mumbai serial blasts from Mumbai.^[13] Qayuum had been named by Sanjay Dutt in his confessional statement. Sanjay had said that he met Qayuum in Dubai in September 1992 and bought a pistol from him. According to CBI, the pistol was sold to Sanjay at the instance of Dawood's brother Anees Ibrahim.^[14]

On 31 July 2007, Dutt was sentenced to six years rigorous imprisonment for illegally possessing weapons.^[15] At the same time, Dutt was also "cleared of terrorism conspiracy charges in the blasts" related to the 1993 bombings.^[15] According to The Guardian, "The actor claimed he feared for his life after the notorious "Black Friday" bombings, which were allegedly staged by Mumbai's Muslim-dominated mafia in retaliation for deadly Hindu-Muslim clashes a few months earlier. But the judge, Pramod Kode, rejected this defence and also refused bail."^[15] Dutt was immediately taken into custody and sent to Mumbai's Arthur Road Jail. As the sentence was pronounced, Dutt was "visibly shocked and was seen shivering and holding back tears".^[10]

On 2 August 2007, Sanjay Dutt was moved from Arthur Road jail in Mumbai to the Yerwada Central Jail in Pune.^[16] On 7 August 2007, Dutt appealed the sentence.^[17] On 20 August 2007, the Supreme Court of India granted Dutt interim bail. He was released after Yerwada Central Jail authorities received a copy of the court's bail order. The bail was valid until the time the special TADA court, which sentenced Dutt on 31 July, provides a copy of its judgment to him.^[18] Dutt was released from jail on 23 August.^[19] On 22 October 2007 Dutt was back in jail but again applied for bail. On 27 November 2007, Dutt was granted bail by the Supreme Court.^[20] He currently has an appeal for an acquittal pending.^[21] In January 2009, Dutt announced that he would contest the 2009 Lok Sabha elections on the Samajwadi Party ticket.^[22] However, he withdrew his candidacy in March 2009 after the Supreme Court refused to suspend his conviction, the party instead named him the General Secretary of the party. He left the post in late 2010. ^[23]

International humanitarian initiatives[link]

On 16 December 2008, he was appointed as a Goodwill Ambassador for IIMSAM — the Intergovernmental Institution for the use of Micro-algae Spirulina Against Malnutrition. He will be promoting the use of Spirulina to help the organization's advocacy and endeavor against malnutrition and hunger. His role will also support IIMSAM's efforts to secure the United Nations Millennium Development Goals by mainstreaming the use of Spirulina to eradicate malnutrition, achieve food security and bridge the health divide with a special priority for the developing and the least developed countries.^[24]

Bigg Boss[link]

The veteran actor hosted the fifth season of reality TV show, Bigg Boss on Colors.^[25]

Super Fight League[link]

Dutt and celebrity entrepreneur IPL cricket team owner Raj Kundra together launched India's first professionally organized mixed martial arts league — the Super Fight League — on 16 January 2012.^[26]

Awards and honors[link]

Filmography[link]

Actor[link]

Producer[link]

• Zinda (2006)
• Shootout at Lokhandwala (2007)
• Dus Kahaniyaan (2007)
• Rascals (2011)
• Satte Pe Satta Remake Double role (2012)

Television[link]

• Bigg Boss (season 5)

References[link]

External links[link]

Wikimedia Commons has media related to: Sanjay Dutt

• Sanjay Dutt at the Internet Movie Database
• Sanjay Dutt to host Bigg Boss 5!

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Robert Bork
Judge of Court of Appeals for the District of Columbia Circuit
In office February 9, 1982 – February 5, 1988
Nominated by	Ronald Reagan
Preceded by	Carl McGowan
Succeeded by	Clarence Thomas
United States Attorney General Acting
In office October 20, 1973 – December 17, 1973
President	Richard Nixon
Preceded by	Elliot Richardson
Succeeded by	William Saxbe
United States Solicitor General
In office June 1973 – January 1977
President	Richard Nixon Gerald Ford
Preceded by	Erwin Griswold
Succeeded by	Wade McCree
Personal details
Born	Robert Heron Bork (1927-03-01) March 1, 1927 (age 85) Pittsburgh, Pennsylvania, U.S.
Political party	Republican
Spouse(s)	Claire Davidson (1952–1980) Mary Ellen Pohl (1982–present)
Alma mater	University of Chicago
Religion	Roman Catholicism

Robert Heron Bork (born March 1, 1927) is an American legal scholar who has advocated the judicial philosophy of originalism. Bork formerly served as a Yale Law School professor, Solicitor General, Acting Attorney General, and judge for the United States Court of Appeals for the District of Columbia Circuit. In 1987, he was nominated to the Supreme Court by President Ronald Reagan, but the Senate rejected his nomination. Bork had more success as an antitrust scholar, where his once-idiosyncratic view that antitrust law should focus on maximizing consumer welfare has come to dominate American legal thinking on the subject.^[1] Currently, Bork is a lawyer, law professor, and bestselling author.

Early career and family[link]

Bork was born in Pittsburgh, Pennsylvania. His father was Harry Philip Bork (1897–1974), a steel company purchasing agent, and his mother was Elisabeth (née Kunkle; 1898–2004), a schoolteacher. He was married to Claire Davidson from 1952 until 1980, when she died of cancer. They had a daughter, Ellen, and two sons, Robert and Charles. In 1982 he married Mary Ellen Pohl,^[2] a Roman Catholic religious sister turned activist.^[3]

Bork attended the Hotchkiss School in Lakeville, Connecticut^[4] and earned bachelor's and law degrees from the University of Chicago. While pursuing his bachelor's degree he became a brother of the international social fraternity of Phi Gamma Delta. While pursuing his law degree he served on Law Review. At UChicago he was awarded a Phi Beta Kappa key with his law degree in 1953 and passed the bar in Illinois that same year. After a period of service in the United States Marine Corps, Bork began as a lawyer in private practice in 1954 and then was a professor at Yale Law School from 1962 to 1975 and 1977 to 1981. Among his students during this time were Bill Clinton, Hillary Rodham Clinton, Anita Hill, Robert Reich, Jerry Brown, John R. Bolton, Samuel Issacharoff, and Cynthia Estlund.^[5][6][7]

Advocacy of originalism[link]

Bork is best known for his theory that the only way to reconcile the role of the judiciary in the U.S. government against what he terms the "Madisonian" or "counter-majoritarian" dilemma of the judiciary making law without popular approval is for constitutional adjudication to be guided by the framers' original understanding of the United States Constitution. Reiterating that it is a court's task to adjudicate and not to "legislate from the bench," he has advocated that judges exercise restraint in deciding cases, emphasizing that the role of the courts is to frame "neutral principles" (a term borrowed from Herbert Wechsler) and not simply ad hoc pronouncements or subjective value judgments. Bork once said, "The truth is that the judge who looks outside the Constitution always looks inside himself and nowhere else."^[8]

Bork built on the influential critiques of the Warren Court authored by Alexander Bickel, who criticized the Supreme Court under Warren for shoddy and inconsistent reasoning, undue activism, and misuse of historical materials. Bork's critique was harder-edged than Bickel's, however, and he has written, "We are increasingly governed not by law or elected representatives but by an unelected, unrepresentative, unaccountable committee of lawyers applying no will but their own." Bork's writings have influenced the opinions of conservative judges such as Associate Justice Antonin Scalia and former Chief Justice William Rehnquist of the U.S. Supreme Court, and sparked a vigorous debate within legal academia about how the Constitution is to be interpreted.

Some conservatives have criticized Bork's approach. Conservative scholar Harry Jaffa has criticized Bork (along with Rehnquist and Scalia) for failing to adhere to natural law principles.^[9] Noted jurisprudential scholar Robert P. George explained Jaffa's critique this way: "He attacks Rehnquist and Scalia and Bork for their embrace of legal positivism that is inconsistent with the doctrine of natural rights that is embedded in the Constitution they are supposed to be interpreting."^[9]

Antitrust scholar[link]

At Yale, he was best known for writing The Antitrust Paradox, a book in which he argued that consumers were often beneficiaries of corporate mergers, and that many then-current readings of the antitrust laws were economically irrational and hurt consumers. Bork's writings on antitrust law, along with those of Richard Posner and other law and economics and Chicago School thinkers, were heavily influential in causing a shift in the U.S. Supreme Court's approach to antitrust laws since the 1970s.^[10][11]

Solicitor General[link]

Bork served as Solicitor General in the U.S. Department of Justice from June 1973 to 1977. As Solicitor General, Bork argued several high profile cases before the Supreme Court in the 1970s, including 1974's Milliken v. Bradley, where Bork's brief in support of the State of Michigan was influential among the justices. Chief Justice Warren Burger called Bork the most effective counsel to appear before the Court during his tenure. Bork hired many young attorneys as Assistants who went on to have remarkable careers, including Judges Danny Boggs and Frank H. Easterbrook as well as Robert Reich, later Secretary of Labor in the Clinton Administration.

On October 20, 1973, Solicitor General Bork was instrumental in the "Saturday Night Massacre", U.S. President Richard Nixon's firing of Watergate Special Prosecutor Archibald Cox, following Cox's request for tapes of his Oval Office conversations. Nixon initially ordered U.S. Attorney General, Elliot Richardson, to fire Cox. Richardson resigned rather than carry out the order. Richardson's top deputy, Deputy Attorney General William Ruckelshaus, also considered the order "fundamentally wrong"^[12] and also resigned, making Bork the Acting Attorney General. Bork was also planning on resigning, but Richardson and Ruckelshaus persuaded him to stay on in order to ensure continuity of leadership at the top of the Justice Department. When Nixon reiterated his order, Bork complied and fired Cox.^[12] Bork remained Acting Attorney General for approximately eight weeks, until the appointment of William B. Saxbe on December 17, 1973.

Circuit Judge[link]

Bork was a circuit judge for the United States Court of Appeals for the District of Columbia Circuit between 1982 and 1988. He was nominated by President Reagan on December 7, 1981, was confirmed by the Senate on February 8, 1982, and received his commission on February 9, 1982.

One of his opinions while on the D.C. Circuit was Dronenburg v. Zech, 741 F.2d 1388, decided in 1984. This case involved James L. Dronenburg, a sailor who had been administratively discharged from the Navy for engaging in homosexual conduct. Dronenburg argued that his discharge violated his right to privacy. This argument was rejected in an opinion written by Bork and joined by (now U.S. Supreme Court Justice) Antonin Scalia, in which Bork critiqued the line of Supreme Court cases upholding a right to privacy. In rejecting Dronenburg's suggestion for a rehearing en banc, the D.C. Circuit issued four separate opinions, including one by Bork (again joined by Justice Scalia), who wrote: "no principle had been articulated [by the Supreme Court] that enabled us to determine whether appellant's case fell within or without that principle."^[13]

Supreme Court nomination[link]

Bork (right) with President Ronald Reagan, 1987

President Reagan nominated Bork for Associate Justice of the Supreme Court on July 1, 1987. A hotly contested United States Senate debate over Bork's nomination ensued. Opposition was partly fueled by strong opposition by civil and women's rights groups concerned with Bork's opposition to the authority claimed by the federal government to impose standards of voting fairness upon the states (at his confirmation hearings for the position of Solicitor General, he supported the rights of Southern states to impose a poll tax),^[14] and his stated desire to roll back civil rights decisions of the Warren and Burger courts. Bork is one of only three Supreme Court nominees, along with William Rehnquist and Samuel Alito, to ever be opposed by the American Civil Liberties Union.^[15] Bork was also criticized for being an "advocate of disproportionate powers for the executive branch of Government, almost executive supremacy",^[12] most notably, according to critics, for his role in the Saturday Night Massacre, albeit not in a completely willing role.

Supreme Court Justice Lewis Powell was a moderate, and even before his expected retirement on June 27, 1987, some Senate Democrats had asked liberal leaders to form "a solid phalanx" to oppose whomever President Ronald Reagan nominated to replace him, assuming it would tilt the court rightward^{[citation needed]}. Democrats also warned Reagan there would be a fight if Bork were nominated.^[16] Nevertheless, Reagan nominated Bork for the seat on July 1, 1987.

Following Bork's nomination to the Court, Sen. Ted Kennedy took to the Senate floor with a strong condemnation of Bork declaring:

Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens' doors in midnight raids, schoolchildren could not be taught about evolution, writers and artists could be censored at the whim of the Government, and the doors of the Federal courts would be shut on the fingers of millions of citizens for whom the judiciary is—and is often the only—protector of the individual rights that are the heart of our democracy ... President Reagan is still our president. But he should not be able to reach out from the muck of Irangate, reach into the muck of Watergate and impose his reactionary vision of the Constitution on the Supreme Court and the next generation of Americans. No justice would be better than this injustice.^[17][18]

Bork responded, "There was not a line in that speech that was accurate."^[19] In an obituary of Kennedy, The Economist remarked that Bork may well have been correct, "but it worked."^[19] Bork also contended in his best-selling^[20] book, The Tempting of America, that the brief prepared for Sen. Joe Biden, head of the Senate Judiciary Committee, "so thoroughly misrepresented a plain record that it easily qualifies as world class in the category of scurrility."^[21]

Television advertisements narrated by Gregory Peck attacked Bork as an extremist. Kennedy's speech successfully fueled widespread public skepticism of Bork's nomination. The rapid response to Kennedy's "Robert Bork's America" speech stunned the Reagan White House, and the accusations went unanswered for two and a half months.^[22]

During debate over his nomination, Bork's video rental history was leaked to the press. His video rental history was unremarkable, and included such harmless titles as A Day at the Races, Ruthless People, and The Man Who Knew Too Much. Writer Michael Dolan, who obtained a copy of the hand-written list of rentals, wrote about it for the Washington City Paper.^[23] Dolan justified accessing the list on the ground that Bork himself had stated that Americans only had such privacy rights as afforded them by direct legislation. The incident led to the enactment of the 1988 Video Privacy Protection Act.

To pro-choice legal groups, Bork's originalist views and his belief that the Constitution does not contain a general "right to privacy" were viewed as a clear signal that, should he become a Justice on the Supreme Court, he would vote to reverse the Court's 1973 decision in Roe v. Wade. Accordingly, a large number of groups mobilized to press for Bork's rejection, and the resulting 1987 Senate confirmation hearings became an intensely partisan battle. Bork was faulted for his bluntness before the committee, including his criticism of the reasoning underlying Roe v. Wade.

On October 23, 1987, the Senate rejected Bork's confirmation, with 42 Senators voting in favor and 58 voting against. Two Democratic Senators, David Boren (D-OK) and Ernest Hollings (D-SC), voted in his favor, with 6 Republican Senators (John Chafee (R-RI), Bob Packwood (R-OR), Arlen Specter (then R-PA), Robert Stafford (R-VT), John Warner (R-VA), and Lowell P. Weicker, Jr. (R-CT)) all voting against him.

The vacant seat on the court to which Bork was nominated eventually went to Judge Anthony Kennedy who was unanimously approved by the Senate, 97-0.

Bork, unhappy with his treatment in the nomination process, resigned his appellate-court judgeship in 1988.

[edit] Bork as verb

According to columnist William Safire, the first published use of bork as a verb was "possibly" The Atlanta Journal-Constitution of August 20, 1987. Safire defines to bork by reference "to the way Democrats savaged Ronald Reagan's nominee, the Appeals Court judge Robert H. Bork, the year before."^[24] Perhaps the best known use of the verb to bork occurred in July 1991 at a conference of the National Organization for Women in New York City. Feminist Florynce Kennedy addressed the conference on the importance of defeating the nomination of Clarence Thomas to the U.S. Supreme Court. She said, "We're going to bork him. We're going to kill him politically ... This little creep, where did he come from?"^[25] Thomas was subsequently confirmed after one of the most divisive confirmation hearings in Supreme Court history.

In March 2002, the Oxford English Dictionary added an entry for the verb Bork as U.S. political slang, with this definition: "To defame or vilify (a person) systematically, esp. in the mass media, usually with the aim of preventing his or her appointment to public office; to obstruct or thwart (a person) in this way."^[26]

Recent work[link]

Following his failure to be confirmed, Bork resigned his seat on the U.S. Court of Appeals for the D.C. Circuit and was for several years a senior fellow at the American Enterprise Institute for Public Policy Research, a conservative think tank. Bork also consulted for Netscape in the Microsoft litigation. Bork is currently a fellow at the Hudson Institute. He served as a visiting professor at the University of Richmond School of Law and is a professor at Ave Maria School of Law in Naples, FL. In 2011, Bork began working as a legal adviser for the presidential campaign of Republican Mitt Romney.^[27]

Works and views[link]

Bork has written several books, including the two best-sellers The Tempting of America, about his judicial philosophy and his nomination battle, and Slouching Towards Gomorrah: Modern Liberalism and American Decline, in which he argues that the rise of the New Left in the 1960s in the U.S. has undermined the moral standards necessary for civil society, and spawned a generation of intellectuals who oppose Western civilization.

In The Tempting of America (page 82), Bork explained his support for the Supreme Court's desegregation decision in Brown v. Board of Education:

By 1954, when Brown came up for decision, it had been apparent for some time that segregation rarely if ever produced equality. Quite aside from any question of psychology, the physical facilities provided for blacks were not as good as those provided for whites. That had been demonstrated in a long series of cases . . . The Court's realistic choice, therefore, was either to abandon the quest for equality by allowing segregation or to forbid segregation in order to achieve equality. There was no third choice. Either choice would violate one aspect of the original understanding, but there was no possibility of avoiding that. Since equality and segregation were mutually inconsistent, though the ratifiers did not understand that, both could not be honored. When that is seen, it is obvious the Court must choose equality and prohibit state-imposed segregation. The purpose that brought the fourteenth amendment into being was equality before the law, and equality, not separation, was written into the law.

In 1999, Bork wrote an essay about Thomas More and attacked jury nullification as a "pernicious practice".^[28]

In 2003, he published Coercing Virtue: The Worldwide Rule Of Judges, an American Enterprise Institute book which includes Bork's philosophical objections to the phenomenon of incorporating international ethical and legal guidelines into the fabric of domestic law. In particular, he focuses on the problems he sees as inherent in the federal judiciary of three nations, Israel, Canada, and the United States, countries where he believes the courts have grossly exceeded their discretionary powers, and which have discarded precedent and common law, and in their place substituted their own liberal judgment.

Bork also advocates a modification to the Constitution that would allow Congressional super-majorities to override Supreme Court decisions, similar to the Canadian notwithstanding clause. Though Bork has many liberal critics, some of his arguments have earned criticism from conservatives as well. Although an opponent of gun control,^[29] Bork has denounced what he calls the "NRA view" of the Second Amendment, something he describes as the "belief that the constitution guarantees a right to Teflon-coated bullets." Instead, he has argued that the Second Amendment merely guarantees a right to participate in a government militia.^[30]

Bork converted to Catholicism in 2003.^[31]

In October 2005, Bork publicly criticized the nomination of Harriet Miers to the Supreme Court.^[32][33]

On June 6, 2007, Bork filed suit in federal court in New York City against the Yale Club over an incident that had occurred a year earlier. Bork alleged that, while trying to reach the dais to speak at an event, he fell, because of the Yale Club's failure to provide any steps or handrail between the floor and the dais.^[34] According to the complaint, Bork's injuries required surgery, immobilized him for months, forced him to use a cane, and left him with a limp.^[35] In May, 2008, Bork and the Yale Club reached a confidential, out-of-court settlement.^[36]

On June 7, 2007, Bork with several others authored an amicus brief on behalf of Scooter Libby arguing that there was a substantial constitutional question regarding the appointment of the prosecutor in the case, reviving the debate that had previously resulted in the Morrison v. Olson decision.^[37]

On December 15, 2007, Bork endorsed Mitt Romney for President. He repeated this endorsement on August 2, 2011.

A 2008 issue of the Harvard Journal of Law and Public Policy collected essays in tribute to Bork. Authors included Frank H. Easterbrook, George Priest, and Douglas Ginsburg.

In popular culture[link]

The look of the character Judge Roy Snyder on The Simpsons is modeled on Robert Bork. The character judge is known for his lenient punishments.^[38]

Selected writings[link]

• Bork, Robert H. (1971). "Neutral Principles and Some First Amendment Problems", 47 Ind. L.J. 1 (1971).
• Bork, Robert H. (1978). The Antitrust Paradox. New York: Free Press. ISBN 0-465-00369-9.
• Bork, Robert H. (1990). The Tempting of America. New York: Free Press. ISBN 0-684-84337-4.
• Bork, Robert H. (1993). The Antitrust Paradox (second edition). New York: Free Press. ISBN 0-02-904456-1.
• Bork, Robert H. (1996). Slouching Towards Gomorrah: Modern Liberalism and American Decline. New York: ReganBooks. ISBN 0-06-039163-4.
• Bork, Robert H. (2003). Coercing Virtue: The Worldwide Rule of Judges. Washington, D.C.: American Enterprise Institute Press. ISBN 0-8447-4162-0.
• Bork, Robert H. (Ed.) (2005). A Country I Do Not Recognize: The Legal Assault On American Values. Stanford: Hoover Institution Press. ISBN 0-8179-4602-0.
• Bork, Robert H. (2008) A Time to Speak: Selected Writings and Arguments. Wilmington, Del.: ISI Books. ISBN10/13: 1933859687 / 9781933859682

See also[link]

• Aaron Director
• List of failed nominations to the Supreme Court of the United States
• Swiftboating
• Gerald Ford Supreme Court candidates
• Ronald Reagan Supreme Court candidates

References[link]

• Bronner, Ethan (2007). Battle for Justice: How the Bork Nomination Shook America. New York, New York, United States: Sterling. ISBN 1-4027-5227-X. http://books.google.com/?id=VpFLtmfnRaMC 
• Vile, John R. (2003). Great American Judges: An Encyclopedia. Santa Barbara, California, United States: ABC-CLIO. ISBN 1-57607-989-9. http://books.google.com/?id=U6uJ-oWsZFYC 

Notes[link]