Showing papers on "Judicial opinion published in 1980"

Environmental constraints on the behavior of judges: a representational model of judicial decision making

Abstract: Taking advantage of the quasi-experimental research design afforded by the "circuit" system of court organization used by the Iowa trial courts, this research investigates the "sharing" model of representation. In order to insure against spurious results, controls are introduced for three types of influences on sentencing decisions: defendant and case attributes, judge attributes and role orientations, and local system practices. Analysis of a path model consisting of measures of sentencing behavior, seriousness of crime in the local jurisdiction, and perceptions of crime seriousness reveals that onesixth of the variance in sentences can be explained. However, substantial variation across judges in responsiveness to local norms is also discovered.

Responses of Federal District Judges to Court of Appeals Policies: An Exploration

Abstract: EPMPIRICAL research on the implementation of judicial policies has contributed substantially to our understanding of the American judicial process. But its contributions are limited by the narrowness of its focus. Typically, studies have examined response to single dramatic decisions of the Supreme Court on constitutional civil liberties issues. Few studies examine response to policies made by courts other than the Supreme Court, non-civil liberties policies, or judicial policies established in series of "little" decisions rather than single major rulings.1 This paper reports a study of response to judicial decisions that differs from most of the existing research in each of the respects that has been noted. The policies with which it is concerned are the policies of the federal courts of appeals on the legal standard of patent validity between the late 1930s and the early 1970s, policies which differed among circuits and which changed over time in particular circuits. The question that it seeks to answer is the extent to which this variation in policy at the appellate level can help to explain policy variation in the federal district courts, the direct subordinates of the courts of appeals. This question differs substantially from the question of compliance that is central to most studies of response to judicial decisions. The findings of this study will tell not about compliance with individual rulings but about the more diffuse impact of appellate policies on the corresponding policies of lower courts. Because of this different perspective, the study may be able to shed some new light on hierarchical relationships within the judiciary. Patent policy is a relatively obscure field, so a brief description of the courts' role in this field will be helpful in understanding the analysis to follow.2 Patent litigation generally involves disputes between patent owners, "patentees," and alleged or potential violators of their patent rights. Most cases are actions for patent infringement, violation of the rights of exclusivity attached to a patent. Of the issues that may arise in patent cases, the most significant for public policy is the validity of the patent in question. Most defendants in patent suits raise as a defense the claim that the patented invention fails to meet the statutory requisites for the receipt of patent rights in effect, that the Patent Office erred in issuing a patent. The federal patent statute provides judges with general criteria for the determination of validity, but these criteria leave room for considerable discretion; a court may interpret the criteria to demand a rigorous or a lenient standard of validity. The courts'

Selective Characteristics of Litigation

Abstract: T HIS paper discusses theories of the content of common law rules. Its principal subjects are the general, comprehensive theories of the composite set of common law rules rather than the particularistic theories of small sets of cases that lawyers devise each day to predict judicial decisions. Lawyers may predict with some success the outcome of a dispute from the observation of earlier similar cases, just as today's weather allows a reasonable prediction of tomorrow's. But the "theories" or working hypotheses' upon which such predictions are based do not address either the pattern of the earth's climate or the broader structure of the common law.

Informed consent: III.

Abstract: AS WAS pointed out in the earlier articles in this series, the law of informed consent, as presented by the judicial opinions on this subject, contains many uncertainties and ambiguities. This is particularly true with respect to the information a physician must disclose to a patient to obtain an informed consent and the scope of the defenses that a physician may raise to a claim that an informed consent has not been obtained. In recent years at least 26 states have adopted statutes dealing with informed consent, which seem to be intended to remove some of the ambiguities in the case law. However, analysis indicates that, although the statutes do provide some useful clarifications of the law, many of the uncertainties found in the case law remain. Standard of Disclosure As was discussed in the first article in this series, there is substantial disagreement among courts as to whether the

The Recall of Judicial Decisions and the Due Process Debate

Abstract: The Fourteenth Amendment represents the capitalistic theory that the country is menaced by improper suicidal legislation, and that its salvation is to be found in keeping things as nearly as possible as they are. The people of the United States ... are to be kept under the tutelage of the courts, like imbeciles and idiots, in order that they may not perchance do something rash or unreasonable. Henry Winthrop Ballantine

Rhetorical Styles on the Fuller Court

Abstract: "Formalism" is the label regularly used to describe judicial opinions of the late nineteenth century.' The label is descriptive when used in contradistinction to "instrumentalism." Use of the label, however, has certain drawbacks. For example, there is little objective or empirical evidence to support the application of the two antithetical terms. In addition, a single term cannot reflect whatever diversity of styles may exist among the judges of a single court. This article describes the results of an attempt to rectify those two drawbacks and to determine whether the Justices of the Supreme Court at the turn of the century-while Melville Fuller was Chief Justicewere as monochromatic as the single term "formalism" would suggest. The article relies upon objective measurements to demonstrate that there was a variety, one might say a richness, of styles among the Justices of the Fuller Court. The article is based upon a study of a sample of cases from eleven terms, from 1895 through 1905, of the Fuller Court. The sample was made up of the cases involving a challenge to the constitutionality of a statute, including state, federal, and territorial. In all there were 286 cases.2 The terms were selected because they were the terms during which Justices Brown and Peckham sat together. Those Justices were of interest because preliminary research had suggested that their styles might represent the extremes on the Court. They were also the terms with the most continuity among the

Law and Opinion

Abstract: The battle for birth control was to be fought out through publications, debates and lawsuits.

Terrorist Acts – Crimes or Political Infractions? An Appraisal of Recent French Extradition Cases

Abstract: This article examines the progression of French jurisprudence on the extradition of transnational terrorists, focusing upon the issue of whether terrorist acts can be considered legally to be political offenses and hence exempt from extradition. The analysis of this issue integrates French judicial decisions into the general context of international practice – beginning with an assessment of extradition procedures and proceeding to a discussion of the special problems raised by the application of the political offense exception. A survey of international extradition decisional law reveals that the tribunals of various countries have elaborated a series of tests by which to define the concept of a political offense.Because this study focuses upon French court decisions, the current methodology of the French courts relating to the extradition of transnational terrorists is described in some detail. Finally, the most recent French judicial decisions on the subject of the extradition of transnational terrorists are analyzed individually.

Les réactions de la doctrine à la création du droit par les juges en droit international privé

Abstract: Although scholarly writing is still a relatively recent phenomenon in Quebec private international law, it has often been strongly critical of judicial decisions which attempt to formulate or reformulate non-codal conflicts rules. Two trends are discernible : the defence of the civilian origin of Quebec law against the imposition of common law rules which are not in harmony with the policy of the system ; and the advocacy of a modernization of existing solutions as well as the introduction of techniques and approaches such as material rules and rules of immediate application.

Progressives and the Supreme Court: A Case for Judicial Reform in the 1920s

Abstract: (1980). Progressives and the Supreme Court: A Case for Judicial Reform in the 1920s. The Historian: Vol. 42, No. 3, pp. 419-436.

Brown and Bakke: The Relation between Judicial Decisions and Socioeconomic Conditions.

Abstract: ITUDENTS OF the sociology of law have long maintained that an understanding of the law in "action" requires recognition of the complex relationships between law as a form of social control and other aspects of social structure.' While law functions on one level to reconcile differences among competing interests in society, its form and content are influenced, on another, by social demands made on the legal system by various interest groups. The prevailing form of legal thought, then, reflects the interplay between the legal system and the broader institutional order. Developments leading to the celebrated University of California vs Bakke (June 28, 1978) and the famous Brown vs Board of Education (May 17, 1954) decisions of the United States Supreme Court provide unique opportunities to examine relationships between the legal and other institutional systems and to explore how the pattern of these relations might have been affected by demands arising from socioeconomic conditions. The question of law and constitutionality involved in both these cases is a matter for legal scholars to debate; but an examination of the systemic factors that might have influenced the rise of the Brown and Bakke phenomena and how these factors might have helped to shape the Court's decisions fall squarely within the purview of the sociological enterprise. This paper is, then, a preliminary effort to understand the occurrences of the Brown and Bakke cases and to question whether the context of these decisions might have been influenced by broad inter-institutional interaction. The major assumption of this paper is that the occurrence of the Brown and Bakke cases is indicative of consistent and mutual reinforcement of social institutions, especially as these institutions intersect to define the statuses of blacks and whites. Taking a socio-historical perspective, it will be argued that the position of the federal judiciary during the period 1950 to 1970 was influenced by an accommodative pattern of black-white relations that was shaped more by broad socioeconomic conditions than by purely moral imperatives. With the handing down of the Brown decision, the Supreme Court was reputed to have reached a high point in its progressive stance in

Clinical s peculations

Abstract: "Dangerousness" is a vague concept, subject to varying interpretations and constructions. Undoubtedly, many persons hold the view that a "dangerous" individual is simply "anyone whom we would, all things considered, prefer not to encounter on the streets. ''t Those who administer the law must, of course, attempt to curb such emotional responses. Judges are frequently called upon to adjudicate the rights of mentally ill individuals who have exhibited socially unacceptable or violent behavior. Judges consequently are required to determine whether certain individuals are sufficiently "dangerous" so that concern for their well-being, or that of society, necessitates their confinement. Regard for the mandates of due process and the protection of basic civil liberties therefore compels judges to search for objective criteria by which to evaluate an individual's potential for violence. In that effort, judges appear to rely upon the opinions of psychiatrists and other mental health professionals trained in the understanding and modification of human behavior. That judges so depend on "expert" opinion is problematic, for current research indicates that mental health professionals possess no special skill in the prediction of "dangerousness." If clinical judgments regarding an individual's potential tor violence are af forded absolute deference, so that the decision to confine a given individual is made by what has been termed the "psychiatric flip of the coin, ''2 grave injustice may be done to the mentally ill, Judicial decisions based on unwarranted assumptions of clinical expertise in the prediction of violence may also create legal difficulties for mental