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Showing papers on "Judicial opinion published in 1979"


Book
01 Jan 1979
TL;DR: The casebook of the Law of Tort as discussed by the authors provides an authoritative guide to this central legal topic, including a discussion of new developments in the law of tort since 1988, including substantial changes to the law relating to the duty of care by cases such as Murphy v.
Abstract: The law of tort remains heavily based on the cases, despite the continuing intervention from Brussels. Development of the law has come in a piecemeal fashion through a series of judicial decisions in response to individual actions. In the 7th edition of this casebook, Tony Weir delivers an authoritative guide to this central legal topic. The structure of the casebook is well established, offering selected extracts from leading cases, thus nurturing understanding through analysis of illustrative cases, and including appropriate statutory and other essential materials. Thorough notes accompany the extracts to provide comment and criticism in a direct style. All new developments in the law of tort since 1988 are considered including, inter alia, the substantial changes to the law relating to the duty of care by cases such as Murphy v. Brentwood DC and the leading House of Lords case of Caparo Industries v. Dickman.

25 citations


Journal ArticleDOI
TL;DR: Rathjen and Rohde as mentioned in this paper examined the relationship between workload, seniority, and age of the majority opinion assignment on the U.S. Supreme Court and found that majority opinion assignments on the Supreme Court are correlated with the workload and seniority of the judges.
Abstract: 1 Several studies of majority opinion assignment on the Supreme Court exist; yet none empirically examines the relationship between workload, seniority, and age. For representative works on opinion assignment see David J. Danelski, "Assignment of the Court's Opinion by the Chief Justice," (paper presented at the 1960 Midwest Political Science Association Annual Meeting); S. Sidney Ulmer, "The Use of Power in the Supreme Court: The Opinion Assignments of Earl Warren," Journal of Public Law, 19 (Winter 1960), 4967; David W. Rohde, "Policy Goals, Strategic Choices, and Majority Opinion Assignments in the U.S. Supreme Court," Midwest Journal of Political Science, XVI (November 1972), 652-682; Gregory James Rathjen, "Policy Goals, Strategic Choices, and Majority Opinion Assignments in the Supreme Court: A Replication," American Journal of Political Science, XVIII (November, 1974), 713-724; and William P. McLauchlan, "Ideology and Conflict in Supreme Court Opinion Assignment, 1946-1962," Western Political Quarterly, 25 (March 1972), 16-27.

22 citations


Journal ArticleDOI
TL;DR: In this article, the authors present a theory explaining the reactions of organizations to court orders that require the organizations to change some policy, program, or pro cedure, based on theories of rational choice.
Abstract: This theoretical note presents a theory explaining the reactions of organizations to court orders that require the organizations to change some policy, program, or pro cedure. The theory is based on theories of "rational choice" and conceives of the change process in terms of four stages: (1) interpretation of the court decision, (2) evaluation of the decision, (3) searches for information and alternatives to the court decision, and (4) selection of one or more alternatives. A review of relevant judicial impact literature produces support for specific hypothesis derived from the theory. Finally, suggestions for further empirical research and theoretical developments are advanced.

18 citations


Journal ArticleDOI
TL;DR: The leading judicial decisions on the use of hypnosis on witnesses are presented and there is a potential for abuse when the information learned is used directly as evidence in court or when the subjective certainty of the witness is increased to the point where cross-examination becomes ineffective.
Abstract: The leading judicial decisions on the use of hypnosis on witnesses are presented. Emphasis is on the increasing use of hypnosis by the police or prosecution with witnesses in criminal cases. Hypnosis has proved to be a valuable tool to learn facts not otherwise available. There is, however, a potential for abuse when the information learned is used directly as evidence in court or when the subjective certainty of the witness is increased to the point where cross-examination becomes ineffective. Safeguards are needed to prevent abuse.

17 citations


Journal ArticleDOI
TL;DR: Proposals for fixed or determinate terms, guideline schemes, and presumptive sentences have been suggested as policy alternatives based on the need for deterrence, the primacy of public order, and the legitimacy of retribution.
Abstract: There is current controversy in criminal law which centers on the criminal sanction and the delineation of purposes for the sentencing process. The debate focuses on the priority of four goals: retribution, deterrence, incapacitation, and rehabilitation. Critics of the present indeterminate sentencing and parole system have argued that rehabilitation has not worked and that treatment does not offer a viable model for the criminal law.' As a result, such critics have contended that emphasis should be placed on goals which can be realized and which correspond to the norms of equity and justice.2 Proposals for fixed or determinate terms, guideline schemes, and presumptive sentences have been suggested as policy alternatives based on the need for deterrence, the primacy of public order, and the legitimacy of retribution. The question of goal priority is at the core of these policy proposals. This question has two aspects. The first questions what we should expect the criminal sanction to achieve. The second considers how we should order our priorities to fulfill society's need for stability and safety while recognizing and conforming to the unique demands that individual rights place on a democratic society. On the surface one would assume that sanction

11 citations


Journal ArticleDOI
23 Nov 1979-JAMA
TL;DR: The Court's determination of the standard of proof required by the due process clause of the Fourteenth Amendment for an involuntary commitment to a state mental hospital is wrapped in a comprehensive delineation of rights and duties.
Abstract: A unanimous opinion of the Supreme Court is an unusual phenomenon today, when it seems that almost every other decision of that august court is determined by a single vote. Furthermore, it is encouraging to read the opinion written by Chief Justice Warren Burger in the case of Addington vs Texas. The reader must appreciate the wisdom and sensitivity disclosed by the careful analysis in that opinion, which deals with the legal problems inherent in the civil commitment of the mentally ill.The Court's determination of the standard of proof required by the due process clause of the Fourteenth Amendment for an involuntary commitment to a state mental hospital is wrapped in a comprehensive delineation of rights and duties. The main argument centered on use of the same standard of proof required in criminal actions, ie, proof beyond a reasonable doubt, as opposed to the more moderate standard of clear

11 citations


Journal ArticleDOI
TL;DR: In this article, the impact of five Pennsylvania Supreme Court decisions on five state agencies was evaluated and it was shown that the decision to initiate a search depended upon the agency's interpretation of the judicial decision as adverse and the extent of the search was related to the enforcement possibilities.
Abstract: This article reports on research evaluating the impact of five Pennsylvania Supreme Court decisions on five Pennsylvania state agencies. Rational choice theory is used to explain several different responses to the judicial decisions: (1) initiating a search for more information, (2) conducting an extensive search, and (3) complying with the court decision and degree of compliance. The analysis demonstrates that the decision to initiate a search depended upon the agency's interpretation of the judicial decision as adverse. The extent of the search was related to the enforcement possibilities. The degree of compliance differed according to whether the agency viewed the decision as adverse and what resources the agency had at its disposal. In general, all of the agencies failed to comply actively with the state court decisions.

10 citations


Book
01 Jan 1979
TL;DR: Originally prepared for the 5th Commonwealth Law Ministers meeting in 1977 this survey was subsequently updated and contains information that was available up to the end of April 1978.
Abstract: Originally prepared for the 5th Commonwealth Law Ministers meeting in 1977 this survey was subsequently updated and contains information that was available up to the end of April 1978. Chapters cover legal indications provisions for implementation national assessments and proposals for change and commentary on scope conditions for abortion the control of choice medical practice legislation and tables are provided on legal indications provisions for implementation in law and practice and national assessment and proposed changes. Appendices cover division of jurisdictions with basic developed and advanced laws sample bill and commentary and sample physicians checklist for abortion applications. The bibliography covers commonwealth judicial decisions additional judicial decisions Commonwealth Government reports commentary on Commonwealth abortion law in Africa Asia and Oceania Europe and the Western Hemisphere general references on abortion law and on abortion abortion in adolescence and general references.

8 citations


Journal ArticleDOI
TL;DR: An investigation of the elements of the diagnostic process, comparing it with the judicial method, is worthwhile.
Abstract: How do fact finding and decision making compare in law and medicine? With increasing contact between the two professions, it is important to understand what constitutes the "truth" in each. It is possible that analytical techniques employed by one might be used to advantage by the other. Clinical problem solving may involve a scientific method which could be well enough defined to improve training programs aimed at perfecting such skill in students. To these ends, an investigation of the elements of the diagnostic process, comparing it with the judicial method, is worthwhile. In his classic monograph, "The Nature of the Judicial Process," the notedjurist Benjamin Cardozo refers to "Those great laboratories of the law, the courts ofjustice," where "every new case is an experiment. ..." These scientific metaphors are not out of place injudicial thought. "According to the legal philosopher Ehrlich," Cardozo continues, "in the long run, there is no guarantee of justice, except the personality of the judge" [1, pp. 16-17]. Indeed, a major theme of Cardozo's book is an exposition of the considerations which influence judicial decision making, namely, precedent, rule of law, sense of the social situation, and

6 citations


Journal ArticleDOI
TL;DR: The authors examines the rhetoric of the oral argument before the U.S. Supreme Court in the sensational "reverse discrimination" case of 1978, revealing the significance of rhetorical strategies in arriving at the judicial opinion.
Abstract: This essay examines the rhetoric of the Oral Argument before the U.S. Supreme Court in the sensational “reverse discrimination”; case of 1978. Disparate legal and rhetorical stances emerge in the Argument, revealing the significance of rhetorical strategies in arriving at the judicial opinion.

5 citations


Journal ArticleDOI
TL;DR: The Spanish protectorate of Western Sahara is a large territory, 100,000 square miles in area and occupied by a considerable number of nomadic tribes, although there are certain townships such as El Aiaun and Amara as mentioned in this paper.
Abstract: Background Western Sahara is a large territory, 100,000 square miles in area and occupied by a considerable number ofnomadic tribes, although there are certain townships such as El Aiaun and Amara. 1 The territory was divided into two provinces, Rio de Oro and Sakiet el Hamra under Spanish administration. It is difficult to estimate the population of the territory, but it appears to be between 70,000 and 100,000. Most of the people of the territory are Arabic speaking, as are those of Mauritania, but certain of the Tekna class speak Berber. In their migrations in search of pastures and water, the inhabitants of the territory traversed what is now Mauritania and part of Western Morocco. Large deposits of phosphates have recently been found at Bu Cra, near El Aiaun, the Spanish capital, whilst there are considerable deposits of magnetite in the South. The fact that much of the territory is a desert and its population nomadic in character, has made the continuous exercise of political authority over it difficult in the past, although it may have been subjected to such authority under the Almoravids, an eleventh and early twelfth century Moroccan dynasty. For a short time Sheikh Ma ul-Aineen, a charismatic political and religious figure who came from what is now S.E. Mauritian and who was politically active during the later part of the nineteenth century, also managed to exercise considerable authority in much of the area, according to Morocco's, pleadings before the International Court on behalf of the Sulton. In 1884, the Spanish protectorate was proclaimed of part of the African coast reaching from Cape Blanc to Cape Bojador, and thus not including the Sakiet el Hamra. The Emir of Adrar purported to ceile territory stretching 150 miles inland, and abutting on this part of the coast in 1886, (Treaty of Idjil) , but

Posted Content
TL;DR: In this paper, the authors examine the development and performance of federal independent regulatory bodies in Canada in the period up to 1979, with particular attention to the operation of legislative schemes that include executive review and appeal powers.
Abstract: This work examines the development and performance of federal independent regulatory bodies in Canada in the period up to 1979, with particular attention to the operation of legislative schemes that include executive review and appeal powers. The author assesses the impact of the exercise of these powers on the administrative law process, and proposes new models for the generation, interpretation, implementation, review, and enforcement of regulatory policy. The study includes a series of representative case studies based on documentation and extensive interviews with individuals drawn from government, agencies, and other parties, including counsel for public interest groups. This enables author, writing from her experience as a participant-observer embedded in the public interest legal sector, to draw on the experiences and perspectives of a broad range of participants in the regulatory process, including but not limited to those dealing with the regulated energy, transportation, communications, and foreign investment sectors. Legal principles identified as emergent in leading judicial decisions in administrative law are used to assess the powers and practices used in executive reviews and appeals. The author finds those powers and practices to be flawed and proposes changes. The proposed models are designed to accord with emerging legal principles and avoid flaws of the types identified in the review and appeal provisions. This work, written under contract with the Administrative Law Project of the Law Reform Commission of Canada, formed one part of a multi-pronged study of administrative law at the federal level in Canada.

Journal ArticleDOI
01 Dec 1979-Polity
TL;DR: The importance of the chief justice's prerogative in assigning the writing of majority opinions to members of the Supreme Court reflects the belief that authorship matters as mentioned in this paper, and the role majority opinions have in establishing controlling legal and constitutional principles governing not only the case at hand but also future decisions.
Abstract: The importance judicial scholarship attaches to the criteria applied by the chief justice in assigning the writing of majority opinions to members of the Supreme Court reflects the belief that authorship matters. The reason is the role majority opinions have in establishing controlling legal and constitutional principles governing not only the case at hand but also future decisions. The central importance of the chief justice's prerogative has been noted by David Rohde. "The primary responsibility for formulating the policy to be made in a case rests with the justice to whom the majority opinion is assigned." 1 The reasoning employed by the chief justice is complex. No single, reductionist interpretation can explain why justice x was assigned case Y. According to Felix Frankfurter, "The grounds for assignment may not always be obvious to the outsider. Indeed, they are not always so to the members of the Court. The reasons normally remain within the breast of the chief justice. But these involve, if the duty is wisely discharged, perhaps the most delicate judgment demanded of the chief justice." 2 Chief justices themselves have stressed the "equality norm" whereby every justice is given equal opportunity to serve as the spokesman of the Court. Thus, according to William Howard Taft, "The chief justice ... assigns all cases... distributing them to the members of the Court

Book ChapterDOI
01 Jan 1979
TL;DR: Two features have at all times since the Norman Conquest characterised the political institutions of England as mentioned in this paper, i.e., "uncertainty" and "arbitrary behaviour".
Abstract: Two features have at all times since the Norman Conquest characterised the political institutions of England.

Journal ArticleDOI
TL;DR: In this paper, the interrelationships of legal and societal morality are examined through an analysis of judicial opinions in the Supreme Court's review of the constitutionality of the death penalty.
Abstract: The interrelationships of legal and societal morality are examined through an analysis of judicial opinions in the Supreme Court's review of the constitutionality of the death penalty. Neither community standards nor considerations of utility provided the justices with a satisfactory basis for rejecting or regulating the death penalty. Resting their decisions instead on grounds of fairness, the justices endorsed a mode of jury guidance and monitoring that potentially facilitates citizen participation in the process of “evolving standards of decency.” Legal morality thus is used as the justification for a decision that affects societal morality in a manner likely to limit rather than to expand the gap between the two moralities.



Journal ArticleDOI
TL;DR: This paper argued that the emphasis on facts as learning ends in themselves and treated all judicial decisions as equally important, and reinforced role learning and rewards memorization in evaluation instruments, and pointed out that although students should provide supporting evidence on examinations, Professor Langran's emphasis on case-decision identification is misplaced, especially in a liberal arts curriculum.
Abstract: This brief article is in response to Professor Langran's article in Teaching Political Science, April 1978 issue entitled “What's Wrong with Facts?” The thrust of this rebuttal is that my colleague is wrong on two counts: (1) he places too much emphasis on facts as learning ends in themselves and consequently, he treats all judicial decisions as equally important; and (2) he reinforces role learning and rewards memorization in his evaluation instruments. Although students should provide supporting evidence on examinations, Professor Langran's emphasis on case-decision identification is misplaced, especially in a liberal arts curriculum. He readily admits that his pedagogical style is tailored to meet the needs of his pre-law students. By considering his constitutional law courses as preparation for law school, he neglects the development of skills and values traditionally associated with liberal education. This article provides a different perspective to the teaching of law-related courses in a liberal ar...

Book ChapterDOI
01 Jan 1979
TL;DR: The United States Supreme Court rarely reaches unanimous decisions, yet the Court commands great respect and its judges are known for their competency as discussed by the authors, and the majority of the Court's decisions which have been significant in American judicial history were by a majority of 6 to 3 or even 5 to 4.
Abstract: If two people in the same situation must make a decision, e.g., the choice of a candidate, a judicial judgment, etc., and decide differently, can we assume that each is capable of acting reasonably or must we assume that this is impossible and that one of them must act unreasonably because of imperfect knowledge of the facts or the compulsion to act from such irrational motives as passion, interest or capriciousness? Judicial decisions seem to imply this conclusion. J. Roland Pennock admits this when he writes: “Where a Court consists of more than one judge, presumably each of the judges, if acting with complete rationality, would arrive at the same decision in a given case.”1 Although this conclusion seems to conform to common sense it is refuted by the well-known fact that the United States Supreme Court rarely reaches unanimous decisions, yet the Court commands great respect and its judges are known for their competency. The majority of the Court’s decisions which have been significant in American judicial history were by a majority of 6 to 3 or even 5 to 4. Should the conclusion be drawn that in each case the majority or minority decided in an unreasonable manner? Is there cause to doubt the intellectual or moral integrity of the Court, because some judges are at times in the majority and at others in the minority?