Showing papers on "Judicial opinion published in 1970"

Methodological Concerns in Studying Supreme Court Efficacy

Abstract: Only a few years ago it was customary and appropriate to begin an essay on Supreme Court efficacy by lamenting the paucity of empirical studies dealing with this problem. Such an introduction is no longer in order, since we have recently witnessed a flourishing of research on the actual consequences of judicial decisions. Both the appearance of at least one book of readings on Supreme Court impact (Becker, 1969) and the focusing of panels around this topic at political science conventions are indications of the emergence of "legal impact" as a significant field of scholarly inquiry. Ironically, however, the proliferation of impact studies has muddled our understanding of judicial effectiveness as much as it has clarified it. After surveying the literature reporting the reactions of police, school teachers, draft board members, and the like to various Supreme Court decisions, one is bewildered if he attempts to relate, reconcile, or "propositionalize" the hodgepodge of findings that has accrued. We are left with the common sense truism that patterns of compliance and defiance with the Supreme Court vary-from decision to decision, from community to community, and from individual to individual. Such a trivial conclusion could have been reached by anyone who simply reads Time Magazine and notes, say, the continuation of police harassment of minorities and the decline of sex censorship.

A Note on Senatorial Consideration of Supreme Court Nominees

Abstract: If a President should desire, and if chance should give him the opportunity, to change entirely the character of the Supreme Court, shaping it after his own political image, nothing would stand in his way except the United States Senate. Few constitutional questions are then of more moment than the question whether a Senator properly may, or even at some times in duty must, vote against a nominee to that Court, on the ground that the nominee holds views which, when transposed into judicial decisions, are likely, in the Senator's judgment, to be very bad for the country. It is the purpose of this piece to open discussion of this question; I shall make no pretense of exhausting that discussion, for my own researches have not proceeded far enough to enable me to make that pretense.' I shall, however, open the discussion by taking, strongly, the position that a Senator, voting on a presidential nomination to the Court, not only may but generally ought to vote in the negative, if he firmly believes, on reasonable grounds, that the nominee's views on the large issues of the day will make it harmful to the country for him to sit and vote on the Court, and that, on the other hand, no Senator is obligated simply to follow the President's lead in this regard, or can rightly discharge his own duty by so doing. I will open with two prefatory observations. First, it has been a very long time since anybody who thought about the subject to any effect has been possessed by the illusion that a judge's judicial work is not influenced and formed by his whole lifeview, by his economic and political comprehensions, and by his sense, sharp or

Reflections on Developing Trends in the Law of Student Rights

Abstract: This past year has witnessed a spurt of interest in the law concerning rights of public school students, an interest coinciding with, and possibly attributable to, the increasing number of judicial decisions in favor of students' "rights" vis-a-vis school administrations. Rather than attempt to enumerate and dissect the myriad of recent decisions, this Paper presents in a general manner my views on developing judicial trends in this area. First, however, it may be well to place the current developments in historical perspective. Today's growing judicial involvement in the field of public education is not unprecedented. In the late nineteenth century and the early part of this century, a regular pattern of decisions developed in which school administration rules and regulations that went beyond the scope of school power as the courts saw it were held invalid.

Attitudes Towards Succession Law in Nigeria During the Colonial Period

Abstract: The interesting case of tinusa v. Adesubokan,' reported in this issue of the Journal,2 provides us with an authoritative answer to a question which has long perplexed students of succession law in Nigeria: can a person whose personal law is that of Islam, by electing to make a will under the Wills Act, 1837, thereby deprive his heirs of what they would be entitled to receive were Islamic law to apply to the distribution of the estate ? The answer given is that he cannot.3 This question, which, as is indicated in the judgment, has not been the subject of previous judicial decisions, may not be one which in recent years has aroused any very great passions. Nevertheless, it is one which some thirty years ago was argued among members of the Colonial Service-administrative officers and legal officers-with a surprising fervour and intensity. The particular issue of the right to make an "English-law" will was only one aspect of the question then debated: should the general (English-based) law of succession apply to Africans at all, even if married under the Marriage Ordinance ?4 The account of this controversy lies buried in the secretariat files of the time,5 and it is proposed to quote from these at some length because of the light they shed, not only on the particular question of the law which should be applied in succession matters, but also on much wider issues which dominated colonial attitudes towards the administra-

Legal Values and Judicial Decision-Making

Abstract: How does a judge justify a judicial decision? To what extent is it possible to distinguish between legitimate “legal” standards to be used in adjudication and illegitimate “policy” arguments, and what are the criteria available for this purpose? Paul Weiler argues that judges are not confined to the application of legal rules. It is legitimate and desirable, instead, that judges take a wider view of their role in developing the legal system. That view, however, must be tempered with some sense of, and deference to, the legal and institutional values which are associated with the judge’s distinct position within the legal process.