Showing papers on "Judicial opinion published in 1977"

Literature and Law in Medieval England

Abstract: IN ENGLAND, as elsewhere, literature and law have traditionally been closely associated. Writers have often turned to law for their matter-Shakespeare, Dickens, and Browning come immediately to mind-and men of law have not hesitated to return the compliment. English literature is richer for the contributions of lawyers such as Thomas More and Francis Bacon, of the Inns of Court-which had become by the mid-1500s the chief center of literary activity in England-of the magistrate who gave us Tom Jones, and of those law school dropouts John Donne and William Makepeace Thackeray. The reasons for this mutual familiarity lie in the history and in the nature of the two activities. In earlier times a legal education was less technical, more humanistic, as much a preparation for the world of practical affairs as for the bar itself-in sum, as compatible with a literary avocation as any other training might have been. For most of its early history, of course, the study of law was closely connected with that of rhetoric. Writers and lawyers both live by words, and pleading a case or drafting a judicial decision requires no less art than writing a narrative poem. Stendhal once remarked that the only perfect example of prose known to him was the Code Napoleon; certainly few writers in our own time could improve upon the carefully crafted prose of Justice Holmes or Learned Hand. The precise and self-conscious use of words that characterizes both law and literature is amplified in their larger concern for created order. Perhaps no other human endeavors have set out so deliberately to structure our world. It is a shallow writer indeed who tries to consider, in its public aspect, the relation of man to society without venturing into law, for that relation is hedged all about by law, and society itself is in large measure a legal concept. The association between literature and law has never been more impressive, however, than in Medieval England. A brief survey of the period, beginning with the twelfth century, will give some idea of the extent. In the words of the great legal historian F. W. Maitland, "law and literature grew up together in the court of Henry II."l Among Henry's itinerant justices were the satirist Walter Map and the chronicler Roger Hoveden; his treasurer Richard FitzNeal wrote the important Dialogue on the Exchequer; and his justiciar Ranulf Glanvill is credited with having written the first classical textbook of English law, the Tractatus de Legibus, a model for centuries to come. The gem of early English poetry, The Owl and the Nightingale, written shortly after the death of Henry In-perhaps by a canon lawyer-shows clearly the beginning of that influence which the art of pleading would regularly exert upon the debat genre. Among the few works of merit that survive from the next century, one of the most accomplished and influential, Robert Grosseteste's Chateau d'Amour, is replete with the terms of contemporary court procedure. Then the stream swells to a torrent. Many of those fourteenth-century writers known to us by name had connections with the legal or administrative side of government.2 Chaucer, as everyone knows, was controller of the customs and a justice of the peace; his friend Gower, according to tradition, was a lawyer; Thomas Usk was undersheriff of London; Thomas Hoccleve worked as a clerk in the office of the Privy Seal. As one critic puts it, "These associations cluster about the Inns of Court, Chancery, and Guildhall, reaching out into the Staple and the Custom House. The list of names and legal and business interrelationships could be extended almost indefinitely."3 Not surprisingly, the works of these men reflect a deep concern with the nature of law and a broad knowledge of legal terms and procedure. Yet the same may be said of the anonymous poetry of the age. Among the lyrics we find such titles as "A Dramatic Mono-

Constitutional Rights of Prisoners

Abstract: 1. An Overview of the Judicial System 2. Administrative Law 3. Use of Force Use of Corporal Punishment to Enforce Prison Discipline 4. Prisoners' Rights to Visitation/Association Searches 5. Prisoners' Rights to Use of the Mail, Internet and Telephone 6. Isolated Confinement - "The Hole" and Administrative Segregation 7. Religion in Prison 8. Legal Services 9. Prisoner Disciplinary Proceedings 10. Right to Rehabilitation Programs, Right to Medical Aid,and Right to Life 11. Additional Litigation 12. Parole and Probation 13. Litigation against Government and Individuals 14. The Prison Litigation Reform Act 15. Selected Federal Statutes Affecting Prisoners Part II: Judicial Decisions Relating to Part I

The Supreme Court's abortion decisions and public opinion in the United States.

Abstract: Between January 1973 and July 1976, the United States Supreme Court handed down three major decisions concerning abortion-two in 1973 and one in 1976. The 1973 decrees struck down most state laws restricting pregnancy termination and ruled that, until after the first trimester, the decision to have an abortion rests with the wvoman and her physician. The Court said that between the beginning of the fourth month of pregnancy and fetal viability (approximately six moinths gestatioi) state regulation should be concerned with measures designed to preserve the mother's health but should not be needlessly restrictive. After viability, the state was held justified in regulating and even proscribing abortion, except where necessary for the preservation of the life or health of the mother. The Court nullified state statutes limiting the perfolrmance of abortions to hospitals; invalidated abortion review committees; and abrogated restrictions on migration between states for purposes of abortion. In 1976 the Court specifically refused to legitimate action by interested parties-such as the woman's husband or parents-to veto her free access to abortion. Implementation of these judicial rulings is turning out to be an arduous process, analogous in many ways to implementation of the earlier decisions of the US Supreme Court on school desegregation. The abortion decisionis are beginning to exemplify the increasingly familiar problems inivolved in the use of judicial review as a means of effecting social change; mobilization of extreme opposition and steady erosion of the Court's intent by means of collateral deterrence.'

Judicial Specialization, Litigant Influence, and Substantive Policy: The Court of Customs and Patent Appeals

Abstract: Several courts of limited jurisdiction currently exist in the federal judicial system, and new specialized courts have been proposed. Opponents of some specialized courts have pointed to the potential policy implications of judicial specialization, and their arguments merit attention. In this article the effects of specialization on the influence of litigant groups over judicial decisions and on the substance of judicial policy are analyzed in general terms. These effects are then examined in greater depth through a case study of the U.S. Court of Customs and Patent Appeals. The findings are complex, but they indicate that specialization may have a significant impact on judicial behavior. This impact should be taken into account in decisions whether to create courts of limited jurisdiction.

Computer Power and Legal Reasoning: A Case Study of Judicial Decision Prediction in Zoning Amendment Cases

Abstract: While social scientists have long advocated the use of statistical methodology in legal analysis, its practical application has not been tested. Statistical models based on social science theories have been used to predict judicial decisions and explain court behavior, but the legal profession has failed to develop statistical models based on traditional legal theories and using data familiar to the lawyer. This article seeks to demonstrate by practical application of statistical methodologies, coupled with traditional legal research methods, that such research can produce important insight into a court's decision making and provide a useful model for predicting the probability of a favorable decision. The zoning amendment decisions of the Connecticut Supreme Court are the data base of this study, which also provides a comprehensive explanation of zoning amendment law in Connecticut as a backdrop against which to evaluate the insights gained by statistical analysis.

The Supreme Court and the Constitution: Readings in American Constitutional History

Abstract: The new Third Edition covers cases down to the present, including important decisions on racial discrimination, privacy, the rights of women, the "new equal protection" and the welfare state, and executive power. The cases, selected for their long-standing significance for constitutional law, are arranged in chronological fashion and further subdivided into pertinent topical categories. Headnotes for each case are designed to familiarize the reader with the historical and constitutional context, the factual background, and the relationship of the case to prior and subsequent ones. While the cases are, of course, edited, generous extracts are provided so that the reader may more fully understand the legal, political, social, and economical considerations employed in a judicial decision. Where appropriate, portions of dissenting opinions are included. Emphasis is on cases which best depict the Supreme Court's role in the making of public policy, particularly those Supreme Court decisions that have served as an instrument for reform and change.

The Anti-Inflation case: the anatomy of a constitutional decision

Abstract: . The Supreme Court's decision upholding the Anti-Inflation Act may have been the Court's most important decision since becoming Canada's final Court of Appeal. While the federal government's wage and price control policy escaped a judicial veto, the Court's decision gave that policy only a temporary constitutional mandate. In so doing, the Court laid to rest, for the time being, any possibility that the national peace, order and good government power was to be dramatically expanded, but opened up the possibility of fairly easy access to the emergency use of the power in peacetime. By examining this decision in the context of the political and legal strategies of the parties, we may gain some valuable insights into the nature of judicial review in Canada. Among other things the case demonstrates the limited importance of judicial review in the politics of Canadian federalism. The Court's decision signals that a constitutional revolution is not about to occur, but the decision itself is not the major factor in preventing a centralizing shift in the balance of power. In fact the Supreme Court's decision reflects fairly accurately the balance of political power in the country. But while the case reveals how political the process of judicial review can be in Canada, still the end product of the process—the opinions of the judges—continues to be cast in a relatively legalistic' style. The Court may adjudicate constitutional disputes but it is not about to dispense constitutional wisdom. The case also teaches us something about the relative importance of economic and judicial resources in the political process. The main lesson is clear: bodi politicians and interest groups will risk losses in terms of long-run constitutional doctrine in order to secure important short-run policy objectives.

Administrative Law and Organization Theory.

Abstract: Each scientific or scholarly discipline or sub-discipline is propelled by forces of an intellectual and extra-intellectual nature which tend to develop a momentum of their own. The elite of each discipline perform at least two functions : they create the dominant "paradigm" *, which non-elite members follow, often much too faithfully, and they stand guard on the frontier to prevent encroachment. Any effort to cross the frontier of a discipline is apt to be hazardous unless the discipline is in the midst of a crisis in its dominant paradigm. The sociologist of law has encountered some formidable obstacles in crossing the boundary of law. And any legal scholar who has had the temerity to study behavior with respect to legal phenomena outside the conventional context of judicial decisions may have also experienced his share of frustrations.8

Contemporary Supreme Court Directions in Civil Liberties

Abstract: During the past five years scores of lawyers, political scientists, and news reporters have tried their hands at analysis of what we call, for want of a more accurate term, the Burger Court. More frequently than not, what comes through is an angry and apocalyptic tone. For many of the commentators, no news from the Burger Court is good news.' Judicial decision making, for the contemporary critics, is akin to sailing in a boundless and bottomless sea; there is neither harbor for shelter nor floor for anchorage, neither starting place nor appointed destination.2 Essentially, current literature is concerned with measuring the degree of erosion that the new cases inflict upon the edifice erected in the Warren years, as if the Warren construct were the ideal and should not be sullied by the tainted hands of Burger, Blackmun, Rehnquist, and Powell-and a Stevens come lately. We now have about 700 full opinions to view since Earl Warren retired, and although the professional and popular journals run to more than a million words on the subject, one can still take refuge in the advice of Justice Holmes who said that "we frequently need better understanding of the obvious rather than further investigation of the obscure." First, the Burger Court is more like than unlike the Warren Court; second,

Judicial Review of Legislation in Ghana since Independence

Abstract: JUDICIAL REVIEW OF LEGISLATION IN GHANA SINCE INDEPENDENCE* C.K. Kumado GENERAL INTRODUCTION At the outset, we may distinguish between two forms in which judicial review manifests itself. The first situation occurs in a constitutional scheme in which the courts have or exert the power to declare an enactment of the legislature contitutional. Usually its exercise is based on a written, rigid constitution, changeable, if at all, only through a complex process. The second type is where a court resorts to strict interpretation of a piece of legislation. That is to say the court, while professing to interpret the enactment, frustrates the legislature's intention! We shall be concerned in this article with only the former situation. Judicial review of legislation is predicated on the acceptance of the primacy and inviolability of certain legal principles. It involves the creation of a hierarchy of laws and the conferment of the power to determine and to maintain that hierarchy. Thus the concept of judicial review stems from a belief in the rule of law; that is to say, a belief that government should be by law, not of me. ' It is possible to believe in the rule of law and yet to deny courts the power to determine the constitutionality of the acts of other branches of government, as is the case in countries like Great Britain. In modern times, however, most nations which adopt a written constitution provide for judicial review. In essence, judicial review is an endeavour to judge positive law in the light of ultimate values.' The Supreme Court of the United States is noted for its use of judicial review of legislation as a means of imposing social order; however, the idea of subor- dinating the actions of various organs of state to higher principles did not originate from there. As Professor Capelletti has pointed out, judicial review in the United States was the result of centuries of European thought and colonial experiences, which had made western man in general willing to admit the theoretical primacy of certain kinds of law .... To say that judicial review antedates the United States is not to minimize the importance of the American contribution to the development of the theory and practice of judicial review; for it was in the United States that judicial review as we know it today first took root effectively. The Constitution of the United States, or perhaps more accurately, Chief Justice Marshall's interpretation of it in the case of Marbury v. Madison,' initiated the era of constitutionalism with the * Editor's Note. Many cases are only cited to S. GYANDOH and J. GRIFFITHS. A SOURCEBOOK OF THE CONSTITUTIONAL LAW OF GHANA (University of Legon 1972). Notwithstanding these are primary citations. The authors state in their preface to Volume II: Our objective has been to assemble all cases of constitutional significance and interest, including especially those hitherto unpublished. (Emphasis Added) 1. E. MCWHINNEY, JUDICIAL REVIEW 13 (4th ed. 1969). 2. Cappelletti & Adams, JUDICIAL REVIEW OF LEGISLATION: European Antecedents and Adapta- tions, HARV. L. REV. 1207 (1966). 3. M. CAPPELLETTI, JUDICIAL REVIEW IN THE CONTEMPORARY WORLD, Chap. II Passim (1971). 4. 5 U.S. (I Cranch) 137 (1803).

Opinion Writers and Law Review Writers: A Community and Continuity of Approach

Abstract: The American law review constantly subjects the work of appellate courts to intense, critical scrutiny, to a jurisprudential dissection of our opinions, to a microscopic examination of the jural sinews and fibers that compose the body of our published work. Law reviews indeed constitute an extremely valuable, extra-judicial laboratory in which our various specimens are meticulously studied and then evaluated as healthy or pathological. Any judge sensitive to the activity or reputation of his or her court should welcome the diagnosis. In a system of government where the executive and legislative branches are constantly subject to public review at the ballot box, but where appellate judges are lifetime or long-term, it is the law review that serves as an informal check and balance; informal and unstructured, to be sure, but nevertheless, a respectable and ever-present force. In this spirit, it becomes appropriate to discuss rules and measures by which judicial opinions should be evaluated. I do not suggest anything revolutionary. Guidelines and standards for reviewing an opinion are the same as those utilized in writing an opinion. For this reason, I believe that the writer and the reviewer should approach an opinion from the same vantage point. A common approach would produce continuity, and thus yield meaningful analyses to the readerships of both opinions and law reviews. PDF scan posted with permission of the Duquesne Law Review.