Showing papers in "California Law Review in 1974"
TL;DR: The validity of predictions of the effect of hospitalization and treatment and the reliability of Psychiatric Judgments are compared.
Abstract: I. PROFESSIONAL LITERATURE ON THE RELIABILITY AND VALIDITY OF PSYCHIATRIC JUDGMENTS 697 A. The Reliability of Psychiatric Judgments ----------------699 B. The Validity of Psychiatric Judgments . .708 1. The validity of diagnosis 708 2. The validity of predictions of dangerousness ____ 711 3. The validity of predictions of the need for hospitalization and treatment ------------------------------717 4. The validity of predictions of the effect of hospitalization and treatment ----.............-----------718
302 citations
TL;DR: The therapist's dilemma is explored as a general model, in search of an acceptable accommodation between his potentially conflicting obligations to the patient and to the threatened victim, to formulate the issue using the conventional terminology of torts.
Abstract: A distraught young man seeks help and counsel from a psychotherapist. During treatment he confides his plan to kill his former lover, who has jilted him and destroyed his pride. The therapist believes him. What must he do? If he warns the potential victim or alerts the police, he violates confidentiality, jeopardizing the therapeutic relationship and, with it, perhaps the best chance of preventing the threatened harm. If instead he relies on his ability to dissuade the young man in time and fails,an innocent person's life may be lost. That this is no idle school hypothetical is borne out by Tarasoff V. Regents of the University of California,' a case presently before ithe Supreme Court of California. We do not propose to discuss that case as such, lest we get entangled in or limited by its specific facts or the posture in which it is now being considered on appeal.' Rather, We prefer to explore the therapist's dilemma3 as a general model, in search of an acceptable accommodation between his potentially conflicting obligations to the patient and to the threatened victim. Alternatively, we can formulate the issue using the conventional terminology of torts, by asking whether a therapist in this delicate situation owes to the threatened victim a duty of reasonable care compatible with his responsibility for safeguarding relevant interests of the patient. The question of whether the law imposes on the therapist a duty
56 citations
TL;DR: In this paper, the authors present a discussion of the traditional legal MARRIAGE CONTRACT and its application in the context of domestic and child-care services, as well as a model for contracts in Lieu of Marriage.
Abstract: I. TERMS OF THE TRADITIONAL LEGAL MARRIAGE CONTRACT _ 1172 A. The Husband Is Head of the Family 1173 B. The Husband Is Responsible for Support 1180 C. The Wife Is Responsible for Domestic and Child-Care Services 1187 II. SOCIOLOGICAL CHALLENGES 1197 A. The Marriage Contract Assumes a Lifelong Commitment 1200 B. The Marriage Contract Assumes a First Marriage 1204 C. The Marriage Contract Assumes Procreation Is an Essential Element in the Relationship 1211 D. The Marriage Contract Assumes a Strict Division of Labor in the Fainily 1216 E. The Marriage Contract Assumes a White, Middle-Class Family 1217 F. The Marriage Contract Assumes the JudeoChristian Ideal of a Monogamous Heterosexual Union 1230 Ill. LEGAL CHALLENGES 1236 A. Marriage as a \"Fundamental Right\" 1237 B. Marriage and Sex-Based Discrimination 1239 C. The State's Interest in Regulating Marriage 1241 D. Marriage and the Equal Rights Amendment 1245 IV. AN ALTERNATIVE: CONTRACTS WITHIN AND CONTRACTS IN LIEU OF MARRIAGE 1249 A. Suggested Topics for Personal Contracts 1250 B. Case Examples of Personal Contracts 1253 C. One Model for Contracts in Lieu of Marriage: The Uniform Partnership Act 1255 D. Current Problems with Judicial Enforcement of Contracts Within and Contracts in Lieu of Marriage 1258 CONCLUSION 1276 APPENDIX: Excerpts from Personal Contracts 1278
44 citations
TL;DR: In the past few years, lawyers have assumed an increasingly active role in disputes over the adequacy of education for the handicapped, promoting particular policy goals both through legislation and in test case litigation as discussed by the authors.
Abstract: In the past few years, lawyers have assumed an increasingly active role in disputes over the adequacy of education for the handicapped, promoting particular policy goals both through legislation and in test case litigation.' The first Part of this article briefly describes the education typically provided for the handicapped, noting the criticisms which present practices have provoked. It also posits an explanation of the durability of the status quo, drawing upon certain organizational attributes of special education. Part II makes a preliminary assessment of the effects law reform has had on special education through three case studies of sites where courts or legislatures have
36 citations
TL;DR: In most states,' parents may commit their children to mental institutions without a hearing or any other form of judicial scrutiny.
Abstract: In most states,' parents may commit their children to mental institutions without a hearing or any other form of judicial scrutiny. If a parent wants a child committed, and a hospital will accept the child as a patient, no legal authority will hear the child's protest. Moreover, the child-patient has no standing to petition for release from the institution until he or she reaches the statutory age of majority. Until that time any request for discharge must be made by the parent. Thus
31 citations
24 citations
TL;DR: The 1998 session of the General Assembly was a relatively quiet one in the field of criminal law and procedure, or at least in what traditionally has been considered part of that field as mentioned in this paper.
Abstract: The 1998 session of the General Assembly was a relatively quiet one in the field of criminal law and procedure, or at least in what traditionally has been considered part of that field. Few changes were made in areas such as the elements of criminal offenses or pretrial and trial procedure. The General Assembly was more active in areas that are less traditional but that more and more are being linked to the administration of criminal justice. The most extensive changes were to the state’s juvenile justice laws, which govern juveniles alleged to be delinquent or undisciplined. Those changes are discussed in Chapter 13 (Juvenile Law). The General Assembly also passed the Crime Victims’ Rights Act, implementing the state constitutional amendment on victims’ rights passed by the North Carolina voters in 1996. The first part of this chapter discusses the victims’ rights legislation. The remainder describes other criminal legislation, primarily affecting controlled substance offenses but also addressing a few other criminal offenses and miscellaneous aspects of criminal procedure. Many of the changes with respect to criminal law and procedure appear in the Current Operations and Capital Improvement Appropriations Act of 1998, S.L. 1998-212 (S 1366), which will be referred to here simply as the 1998 Appropriations Act. Readers interested in criminal law and procedure also should consult Chapter 6 (Courts and Civil Procedure), Chapter 19 (Motor Vehicles), and Chapter 23 (Sentencing, Corrections, Prisons, and Jails). Chapter 23 and Chapter 6 discuss changes in the authority of trial courts to order restitution as part of a defendant’s sentence. Chapter 19 discusses changes in the state’s impaired-driving laws, including changes in the procedure for forfeiture of motor vehicles involved in impaired-driving offenses.
22 citations
TL;DR: Hart as discussed by the authors argued that there is no necessary connection between law and morals or law as it is and law as the ought to be, and that human or positive laws are invalid if contrary to some higher law.
Abstract: In 1958, H.L.A. Hart published an article in the Harvard Law Review in which he distinguished several theses traditionally advocated by or associated with legal positivists.' Though Hart rejects the bulk of these theses, he devotes the greater part of his article to a defense of one of them, regarding the intersection of law and morality. This thesis-which both Bentham and Austin propounded-is that, in the absence of an express constitutional or legal provision, it does not follow from the fact that a rule violates a standard of morality that it is not a rule of law; conversely, it does not follow from the fact that a rule is morally defensible that it is a rule of law. The particular wording of this thesis indicates that it is directed primarily against traditional natural law theorists, such as Sir William Blackstone and Gustav Radbruch,5 who have said that human or positive laws are invalid if contrary to some \"higher\" law. In accord with this defense, Hart presents as the central positivist claim \"the contention that there is no necessary connection between law and morals or law as it is and law as it ought to be.\"4 And
20 citations
Journal Article•
TL;DR: In this article, the United States Supreme Court unanimously reversed the Ninth Circuit's decision and remanded the case to the district court for appropriate relief, but did not reach the equal protection issue emphasized in this Commentary, but rather based its holding on the Civil Rights Act of 1964.
Abstract: [On January 21, 1974, while this Commentary was in page proofs, the United States Supreme Court unanimously reversed the Ninth Circuit's decision and remanded the case to the district court for appropriate relief. The Court did not reach the equal protection issue emphasized in this Commentary, but rather based its holding on the Civil Rights Act of 1964 which is discussed at pages 16869 infra. Surprisingly, the Court did not deal with the difficult issues of statutory interpretation raised by the Civil Rights Act claim. The Court's statutory approach does, in many respects, parallel the equal protection analysis set out below.]
14 citations
TL;DR: The Amish view the public school as a threat to the continued existence of their community, for the school indoctrinates Amish children in values and attitudes alien to the Amish faith as mentioned in this paper.
Abstract: The Old Order Amish is the most conservative of the Mennonite religious sects in America. Members of the Old Order live in self-contained agrarian communities insulated from the larger society. Common sentiments, tradition, and nonconformity with mass society serve to integrate the Amish community and promote a sense of unity. The values of the community are religious values, and daily life is regulated in detail by the church rules or "Ordnung." Amish fields are plowed by horses, not tractors; the mode of dress is traditional and uniform; restrictions are imposed on the use of such modern contrivances as electricity and telephones. The Amish view the public school as a threat to the continued existence of their community, for the school indoctrinates Amish children in values and attitudes alien to the Amish faith. Most particularly, the Amish object to a public education beyond the eighth grade. The child at 12 or 13 years of age begins a new period of self-awareness, and it is crucial to Amish parents that their children not be taught to identify with non-Amish values. The Amish feel that a child who achieves a level of scholarship beyond the fundamentals of the primary grades is likely to leave the community and be lost to the church. More importantly, if a child spends the great part of his day at the high school, there is less chance he will learn to appreciate the Amish way of life.' The Amish conflict with the schools has a colorful and well-documented history.2 In the past courts were unreceptive to Amish claims that compulsory school attendance infringed upon their religious freedom. Rejection of the Amish claims was premised on the notion that while religious beliefs were free from state control, religiously moti-
13 citations
TL;DR: In each of the three areas of inquiry, the Symposium authors, drawn from a variety of disciplines, break new ground and provide significant insights into the theory and practice of mental health law.
Abstract: In recent years, scholarship in -the field of mental health law has centered largely on three areas: criminal responsibility, civil commitment, and, somewhat more recently, the rights of institutionalized patients. This emphasis is reflected in the articles in the present Symposium; in fact, with only one exception-the interesting piece on tort liability and the psychotherapeutic relationship by Professor John Fleming and Bruce Maximov 1-the fit into this,three-part format is a perfect one. Yet the articles are by no means content to echo traditional wisdom. Indeed, in each of the three areas of inquiry, the Symposium authors, drawn from a variety of disciplines, break new ground and provide significant insights into the theory and practice of mental health law. A key question in each of these areas involves the proper deference to be given the judgments of psychiatric practitioners in applying the law's coercive powers to the mentally disabled. The article by Bruce Ennis, a mental health reform lawyer, and Thomas Litwack, a clinical psychologist and lawyer, questions the usefulness of these judgments in courtroom proceedings.' Ennis and Litwack canvass the
TL;DR: The right to treatment for mentally disabled persons who are involuntarily committed to mental health facilities was first suggested by Birnbaum' and Kittrie as discussed by the authors, based upon the notion that if patients are confined for the purpose of treatment, treatment should in fact be provided.
Abstract: Within the past several years there has been increasing recognition of a right to treatment for mentally disabled persons who are involuntarily committed to mental health facilities. This right, first suggested by Birnbaum' and Kittrie,2 is based upon the notion that if patients are confined for the purpose of treatment, treatment should in fact be provided. As noted by Judge Bazelon in Rouse v. Cameron, "Absent treatment, the hospital is 'transform[ed] . . . into a penitentiary where one could be held indefinitely for no convicted offense.' "I
TL;DR: The eventual dimensions of this right will thus depend on how it is defined, in practice as well as in theory as discussed by the authors, and even in those states where a right to appointed counsel is rec-
Abstract: Recent years have seen increasing judicial1 and legislative2 recognition that individuals subject to involuntary hospitalization should have a right to counsel, perhaps even court-appointed counsel. But the notion of a "right to counsel" has not yet been fully developed and articulated. The eventual dimensions of this right will thus depend on how it is defined, in practice as well as in theory. Unfortunately, even in those states where a right to appointed counsel is rec-
TL;DR: "While ethical land psychologicaPl assessments of sterilization may differ, few would deny that the operation should be performed only upon those who knowingly consent to it."
Abstract: That sterilization today is a subject of considerable interest can hardly be denied. Planned Parenthood has its pamphlet on the subject,1 and even the Wall Street Journal finds the topic of sufficient interest to intermingle with the financial news.2 While ethical land psychologicaPl assessments of sterilization may differ, few would deny that the operation should be performed only upon those who knowingly consent to it."
TL;DR: In this paper, the authors argue that the reasoning behind the special constitutional protection extended to sex discrimination is particularly applicable in the case of pregnancy, and that the Court's reliance on the uniqueness of pregnancy reflects an incomplete understanding of one form of sex discrimination affecting all women.
Abstract: This analysis of judicial responses to laws and practices that single out pregnant women for discriminatory treatment focuses on one of the most troublesome-the United States Supreme Court's ruling in Geduldig v. Aiello that because pregnancy is unique, discrimination on the basis of pregnancy is not discrimination on the basis of sex. The author argues that the reasoning behind the special constitutional protection extended to sex discrimination is particularly applicable in the case of pregnancy, and that the Court's reliance on the uniqueness of pregnancy reflects an incomplete understanding of one form of sex discrimination affecting all women.
TL;DR: The Lord God caused a deep sleep to fall upon Adam, and he slept, and He took one of his ribs, and closed up the flesh thereof; and the rib, which the Lord God had taken from man, made He a woman.
Abstract: And out of the ground the Lord God formed every beast of the field, and every fowl of the air; and brought them unto Adam to see what he would call them: and whatsoever Adam called every living creature, that was the name thereof. And Adam gave names to all cattle, and to the fowl of the air, and to every beast of the field; but for Adam there was not found an help meet for him. And the Lord God caused a deep sleep to fall upon Adam, and he slept: and He took one of his ribs, and closed up the flesh thereof; And the rib, which the Lord God had taken from man, made He a woman ....
TL;DR: The Discretion to Disobey: A Study of Lawful Departures from Legal Rules by Mortimer R. Kadish, a philosopher, and Sanford H. Kannan, a lawyer as mentioned in this paper.
Abstract: Even the most law-abiding among us has on some occasion knowingly refused to conform to what he accepts as a valid legal norm directing him to do something or to refrain from doing something. How do we account for this phenomenon? Is it always merely laziness, viciousness, rebelliousness, or evidence that we are after all only human? Or are there occasions when the refusal to obey the directives of a legal system is in fact sanctioned by that legal system and perhaps even is part of our legal obligation? In an important new book, Discretion to Disobey: A Study of Lawful Departures from Legal Rules, Professors Mortimer R. Kadish, a philosopher, and Sanford H. Kadish, a lawyer, argue that the second explanation is the correct one. Their argument is subtle, sensitive to the nuances of the complicated structure of a functioning legal system, and full of real insight. Whether ithe argument is completely persuasive is a question each reader must answer for himself. Personally, I am not fully persuaded. Since the underlying question is one which any observer of the contemporary legal and political scene with even the slightest philosophical bent is bound to confront, it might be useful to state the difficulties I have with their argument. If, by so doing, I can help to initiate the public discussion which their stimulating book deserves, then I shall have paid Discretion to Disobey the homage it merits. For, lest there be any doubt about it, I think it is a very good book which deserves careful reading.
TL;DR: This programatic and legislative activity has not been directed primarily at securing rights for the institutionalized mentally ill, rather, the focus has been on avoiding institutionalization of the mentally ill.
Abstract: In 1961, the American Bar Foundation reported on its study of the fights of the mentally ill in a book entitled The Mentally Disabled and the Law. Chapter Five of that book deals specifically with "Rights of Hospitalized Patients." 3 After an extensive review of existing legislation, the editors concluded: "Statutes by and large do not deal adequately with the problem of patients' rights."4 In 1971, the American Bar Foundation produced a revised edition of its study,5 which may be viewed as a 10-year progress report. The new edition was justified on three grounds: (1) "pervasive attention [has been] focused during the sixties upon ,the plight of the mentally ill;"6 (2) the final report of the Joint Commission on Mental Illness and Health provided a "critical evaluation of our nation's response to the needs of its mentally ill . . . ;"7 and (3) "by and large the states have responded to the challenges in that report by instituting new programs and enacting laws and procedures for their implementation."'8 This programatic and legislative activity has not been directed primarily at securing rights for the institutionalized mentally ill. Rather, the focus has been on avoiding institutionalization of
TL;DR: The implications of the recent California Supreme Court case, Green v. Superior Court, and its innovative doctrine, the use of an implied warranty of habitability as a defense to eviction for nonpayment of rent, are discussed in this article.
Abstract: Professor Moskovitz has prepared a timely article on the implications of the recent California Supreme Court case, Green v. Superior Court, and its innovative doctrine, the use of an implied warranty of habitability as a defense to eviction for nonpayment of rent. The article explores the entire field-from what constitutes a breach to how protective orders are to be applied, even suggesting a creative solution to the difficult problem of measuring damages. Professor Moskovitz brings to this task long experience in both the study and the practice of landlord-tenant law; indeed, he co-argued the Green case. Drawing on his knowledge of litigation he has included throughout the article practical advice for the attorney immersed in landlord tenant matters. This advice is contained in textual footnotes; for ready identification each is set off by extra space and captioned \"practice note.\
TL;DR: The California Law Review published a tribute to Professor Ehrenzweig in October 1966, on the occasion of his sixtieth birthday, which included Negligence Without Fault and full-Aid insurance for the Traffic Victim-A Voluntary Compensation Plan as discussed by the authors. But mentioning these four volumes hardly does him justice, for his oeuvre comprises more than a dozen books and some 250 articles and book reviews.
Abstract: Albert Ehrenzweig's death on June 4, 1974, ended an illustrious and productive life. A brilliant scholar in two legal systems, Professor Ehrenzweig wrote and published extensively bn subjects which stimulated his interest. Through his writing and teaching he aroused others. Notable among his works are his Treatise on the Conflict of Laws,' Psychoanalytic Jurisprudence, 2 and two highly influential studies in tort law, Negligence Without Fault and \"Full-Aid\" Insurance for the Traffic Victim-A Voluntary Compensation Plan. 4 But mentioning these four volumes hardly does him justice, for his oeuvre comprises more than a dozen books, and some 250 articles and book reviews. Often controversial, always perspicacious and thought-provoking, Professor Ehrenzweig's writings will continue to influence and inspire legal scholars. The California Law Review published a tribute to Professor Ehrenzweig in October, 1966, on the occasion of his sixtieth birthday.5 It included Professor Ehrenzweig's seminal Negligence Without Fault, and it contained several articles by distinguished scholars on subjects to which Professor Ehrenzweig had devoted much of his own work, as well as a bibliography of Professor Ehrenzweig's published works. The time has come to update that bibliography, not to close the book on Professor Ehrenzweig's work, but to commend his completed writings