Showing papers on "Judicial opinion published in 1968"

Public Opinion and the United States Supreme Court: Mapping of Some Prerequisites for Court Legitimation of Regime Changes

Abstract: ANY RELATIVELY STABLE POLITY must possess means for converting many, if not most, demands made on political authorities into satisfying outputs, whether material or symbolic. Failure to cope with pressing demands might lead to a severely dysfunctional loss of public support for particular officials as well as for the regime itself. On the other hand, efforts to meet demands through blatant violations of accepted rules can also cause great loss in public support.'

Survey Research On Judicial Decisions: the Prayer and Bible Reading Cases

Abstract: NOTE: The author wishes to acknowledge the support of the Center for the Study of Law and Society, University of California, Berkeley, and the Faculty Committee on Research, University of California, Riverside. ITHIN the past decade research in public law has undergone considerV able change. The focus has shifted from traditional content analysis of Supreme Court decisions to a focus on the Court as a political-policy making agency. The battle within the discipline has largely centered on the viability of unidimensional versus multidimensional methods of analysis. For all of

Role Theory and the Supreme Court

Abstract: A MAJOR PROBLEM FACING those who analyze the Supreme Court I involves the question of whether the decision processes are those of the Court as an institution or of individuals on it. How far does the Court form the Justice's conception of his role, and how far is that conception formed by his previous experience and opinions? To what degree are his opinions the product of the institutional setting and to what degree are they the product of prior interests? In attempting to answer, analysis of the Supreme Court has passed through three phases: traditionalism, realism, and behavioralism. Each has had its pitfalls as well as merits. Their differences might be summarized through an analogy to the tale of the Emperor's new clothes. The traditionalist firmly maintains that the Emperor is majestically apparelled. The realist indignantly asserts that he is stark naked, and hints at infantile dependence problems for those who require him clothed. The behavioralist wishes to ascertain why he is not clothed, and construct indices by which one may determine on any given occasion, the degree of his exposure. (Little of the inquiry is ever appreciated by the Emperor.) Despite an increasing degree of sophistication, the analytical techniques and conceptual tools applied to date leave unanswered questions concerning -the ways in which personal attitudes influence legal interpretation and action, and what conditions their effect. Specifically, they do not provide an adequate way of describing and identifying institutional factors in judicial attitudes. Obviously a tool of analysis is needed which will set the balance between structural and behavioral factors in a manner which makes more clear how and under what conditions personal attitudes may influence judicial decisions.

Two models of judicial decision-making

Abstract: There are two different models of judicial decision-making that have been illustrated in American legal thinking. In this article the author thoroughly examines those models and illustrates the workings of each. First, the author discusses the adjudication of disputes model and examines its purpose, as well as its key elements and characteristics. He also examines its limits, namely the obstacle of polycentricity. The author then discusses the characteristics of the judicial-policy-maker model, as well as the various problems with which it is associated. In conclusion, the author suggests that although the judicial process in Canada fits neither model exactly, it is more or less organized along adjudicative lines.

The Justification of the Judicial Decision

Abstract: ETWEEN the equally unacceptable extremes of mechanical jurisprudence and rule skepticism lies a theory of the justification of the judicial decision which many have thought captures the virtues, while avoiding the difficulties, of both extremes. It shall be my primary concern in the present essay to (1) present a rough sketch of this familiar and widely held theory, (2) detail what I believe are a number of serious objections to it, and (3) outline what seems to me to be a reasonable alternative.

Dissenting Blocs on the Warren Court: A Study in Judicial Role Behavior

Abstract: IT IS IMPOSSIBLE to understand fully the work of the Supreme Court and similar appellate bodies without focusing on the crucial role of the individual justice. Supreme Court decisions are the products of the constant and forceful interaction of judicial minds and personalities, of precedents and traditions of the past and perceptions of the future, and of the conflicts and reinforcements which develop in its relationship to other political institutions. Justices are products of their environment, past and present, and it is a large part of their task to apply the values derived from these experiences to resolving cases before them. Contemporary students of the Court have articulated a number of techniques for studying the decision-making process. All are based on the assumption that the values and attitudes of individual justices are crucial determinants of decisional behavior, but each differs in its particular emphasis on the precise role which attitudes, values, or the backgrounds of the justices play in arriving at both individual and collegial determinations." In fact, the major disagreements among contemporary scholars seem to be over the relative importance of one or another component, rather than on the existence-or lackof these components.2

Crime and Punishment: China and the United States

Abstract: There is broad agreement among Western scholars that under the Communists the criminal process in China1 is arbitrary, highly politicized, and responsive to class and status differences among its targets. It is frequently pointed out, quite accurately, that China has no criminal codes and no public-reporter system of judicial decisions and that important substantive laws often are unpublished or, if published, very vague. Theorists of totalitarianism even doubt the existence of legality within such systems.

Opinion Agreenient Among High Court Justices in Australia

Abstract: SOCIOLOGISTS and social psychologists have devoted considerable attention in recent years to the study of small groups, but relatively little has been done to focus upon appellate courts as a situs for empirical research.’ The data for this paper have been taken from a larger study of High Court decision-making in which I have been engaged for several years.3 In the present report I shall discuss primarily from a sociometric point of view the question of the relative popularity of judicial opinions among the justices of the High Court, particularly in relation to the participation in decision-making and the background characteristics of the justices. Other papers published elsewhere are concerned with the social attitudes of the justices, as inferred from cumulative scaling of their voting in split decisions of the court;4 and with the political ideology of the justices in relation to their social attributes, their participation in decision-making, and their voting behaviour. s

Birth Control and a New Birth of Freedom

Abstract: The author analyzes Griswold v. Connecticut and other recent developments in the birth control movement and explains their significance for constitutional theory. The Griswold case raised the principle of voluntary family planning to the status of a constitutional right. It also recognized the standing of those in the helping professions to assert the rights of their patients and clients. The Court's recognition of a right of privacy and restoration of meaning to the ninth and tenth amendments may be a protection against the increasing threat of a “big brother” society. Recent administrative and judicial decisions emasculating the Comstock laws demonstrate the importance of constitutional checks and balances. The ultimate question posed by the Griswold case is whether it will be recognized that the government has an affirmative obligation to make the exercise of constitutional rights possible.

Judicial Precedent in Africa Revisited

Abstract: One of the central facts, if not the most important of all, about the general legal systems of African countries is that they are derived wholly or partly from the legal systems of foreign countries, usually those of the former colonial power, though this is by no means the only source which has been drawn upon. Thus in Commonwealth Africa there has been extensive borrowing not only from the law of England, but from British India, from the provinces of South Africa, and to a less extent from other common-law jurisdictions, such as Queensland, New Zealand and Canada. This wholesale adoption of extraneous laws, sometimes unadapted, sometimes modified, immediately raises the fundamental question of the authority, if any, of judicial decisions in the donor country for the purpose of elucidating or determining the applicable law in the receiving country. There has been considerable discussion on this point, largely initiated by the writings of Elias and myself;1 and in the recent past the theme has been taken up by a number of other writers, especially those concerned with Nigerian and Ghanaian law.2

The new science and the law of nations

Abstract: THE impact of advanced science and technology is the most incisive of the decisive forces which are reshaping contemporary society on a scale and at a rate unprecedented in human experience. It has a threefold bearing on the law of nations. It has a profound, if subtle, influence on the fundamentals of legal thought; it poses a wide range of specific problems for the law; and it raises acutely the general question of the relationship of law, science and technology in the life of the world community. Legal thought can never be divorced from the general intellectual currents of the age. The new scientific thought of the twentieth century has been authoritatively described as making "as sharp a break with the thought which preceded it as the scientific inquiries of the sixteenth and seventeenth centuries had made with the thought of the Middle Ages." 2 Determinism, measurement, continuity and impersonality were the basic principles of nineteenth-century science. They belong to the same intellectual world as the Austinian theory of law and the positivist theories of international law. The revolutionary developments in mathematics, the physical sciences, the biological sciences and the social sciences have profoundly changed the fundamental assumptions of contemporary thought. Discontinuity, uncertainty and chance are now recognised to be inherent in the laws of nature; the part played by the creative imagination of the scientific mind in deciphering the laws of nature has come to be more fully acknowledged. There has been a marked reflection of these general intellectual influences in contemporary legal thought. It is natural that the reflection should have been most marked in speculative writings on jurisprudence which have emphasised the element of uncertainty in general legal principle, custom and judicial decision. There is now an increasing acceptance of the same general 1 Based on a paper submitted and address given at the Geneva World Conference

The development of criminal law in Jamaica up to 1900

Abstract: This work attempt to trace the development of criminal law in Jamaica from 1655 when the English captured the Island, up to 1900. In tracing this development emphasis is placed more on legislative enactments and their policies than on judicial decisions, for it was in the field of penal legislation the Jamaican law tended to differ from English law. In chapter 1, the introduction of English law into the Island is outline, and a theory as to Jamaica's status is proposed. In Chapters 2 and 3 the background in which the penal legislation was enacted and administered in the 18th and 19th centuries is related. This necessitates an examination of the inhabitants, the legislators, the judiciary and the legal institutions. In Chapters 4 and 5 the penal legislation relating to slaves is discussed. The various legislative devices aimed at preventing rebellions and at protecting the slave owners' property are related. In Chapters 6, 7 and 8 the laws to protect the State, Persons and Property respectively are outlined. In Chapter 9, four problems of particular importance to Jamaica are examined. These problems are Piracy, Obeah, Praedial larceny and Vagrancy. In Chapter 10 the attempt to codify the criminal law is related. Reasons for the failure at codification are suggested. In Chapter 11 a brief look is taken at certain trends in penal legislation in the 20th century. In Chapter 12, conclusions are drawn on the data provided in the preceding Chapters and certain proposals relative to the criminal law of Jamaica are put forward.