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Showing papers on "Judicial opinion published in 1981"


Journal ArticleDOI
01 Jan 1981
TL;DR: The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press as mentioned in this paper.
Abstract: As an Advocate of the Supreme Court, John Dugard observes the South African legal order daily in operation. In this book he provides a thorough description and probing analysis of the workings of the system. He places South Africa's legal order in a comparative context, examining the climate of legal opinion, crucial judicial decisions, and their significance in relation to contemporary thought and practice in England, America, and elsewhere. He also considers South Africa's laws in the light of its history, politics, and culture. Originally published in 1978. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

83 citations


Journal ArticleDOI
TL;DR: In the theory of the common law, these opinions are the law; they stand in the center of the legal system as mentioned in this paper, and their power is enhanced by common law doctrine that links them in a chain of influence and causation-the doctrine of precedent.
Abstract: Appellate court opinions, carefully indexed and preserved in law libraries, are a tremendous resource for historians and social scientists. In the theory of the common law, these opinions are the law; they stand in the center of the legal system. Their power is enhanced by the common law doctrine that links them in a chain of influence and causation-the doctrine of precedent. Their precedential value means that they are also powerful resources for the practicing lawyer-often the basic material with which he works. But these appellate opinions also are crucial documents for any study of judicial culture. The reasoning of the judges, over the years, reveals judges' notions of law and of the judicial role; it is an essential window into the legal culture of the judges. The style of opinions is as good an indicator as we have of what counts as sound legal reasoning for any given era. Even objective aspects of judicial opinions can be revealing, as Merryman's studies of California citation since 1950 and Goutal's work on opinion length show.' Moreover, a more policy-oriented conception of the judicial role arguably could be re-

73 citations


Journal ArticleDOI
TL;DR: The question of how a newly appointed justice is likely to vote is of interest not only to the president, but to all who recognize the Supreme Court's policy-making function as mentioned in this paper.
Abstract: A NEWLY APPOINTED JUSTICE often comes to the United States Supreme Court with the opportunity to have an immediate impact on decisions involving some of the significant policy questions of the day. Such an opportunity to influence policy is more meaningful when the "freshman justice" joins a closely divided court on which a single vote may tip the balance on a decision, or when a single president has the opportunity to appoint several like-minded justices in a single term. Recognizing the importance of the appointment process as a means of influencing judicial decisions, presidents throughout history have sought to name individuals who would support the president's policy goals once on the Court. 1 Thus, the question of how a newly appointed justice is likely to vote is of interest not only to the president, but to all who recognize the Supreme Court's policy-making function. Of particular interest is the question of whether the voting behavior of new justices differs from that of more senior members of the Court. Is the voting behavior of newcomers immediately

34 citations


Book
01 Jan 1981

23 citations


Book ChapterDOI
01 Jan 1981
TL;DR: In this paper, the authors examine several different theoretical approaches to legal issues and present an alternative theoretical/methodological approach to legal decisions, one that they favor, which is one that we favor as well.
Abstract: The first purpose of this chapter is to examine several different theoretical approaches to legal issues. Although most of the discussion will focus on the work that has been carried out by social psychologists, many of the issues are relevant to other efforts in the psychology-law area. An examination of the relative merits of laboratory simulations and in situ research on legal decision-making constitutes the second purpose. Finally, an alternative theoretical/methodological approach to legal decisions—one that we favor—will be briefly presented.

21 citations


Journal ArticleDOI
TL;DR: This paper studied the impact of losing lawsuits on public policy and found that losing lawsuits can produce positive policy change from the consumer's perspective, while the final judicial decision may not be the most significant event in litigation stimulating policy change.
Abstract: Social scientists have reported extensively on the impact of Supreme Court decisions overturning public policy, but not on those sustaining it. This article stresses the need to study the impact of litigation, including the impact of losing lawsuits. Presenting data on the impact of San Antonio Independent School District v. Rodriguez, the article demonstrates how a losing lawsuit can produce positive policy change from the consumer's perspective. After comparing the policy aftermath of Rodriguez with that of two winning school-finance cases, I suggest that the final judicial decision may not be the most significant event in litigation stimulating policy change.

20 citations



Book
01 Jan 1981

11 citations




Book ChapterDOI
01 Jan 1981
TL;DR: In this paper, the authors provide sound, empirical evidence of the need for special methods to safeguard juveniles' interrogation rights to silence and legal counsel, and examine several potential safeguards, using the research results and the reality of law and the legal process to evaluate these proposals.
Abstract: Our research results provide sound, empirical evidence of the need for special methods to safeguard juveniles’ interrogation rights to silence and legal counsel In this final chapter, we will examine several potential safeguards, using the research results and the reality of law and the legal process to evaluate these proposals In addition, we will show how the results can be used as guidelines for legislative reform and judicial decision making regarding juveniles’ waiver of rights First, however, let us review the major conclusions from the studies in the foregoing chapters

Journal ArticleDOI
TL;DR: A substantial body of literature has shown that state and federal judges sometimes take advantage of well-established features of the judicial system in order to ignore, evade, or modify significant Supreme Court pronouncements.
Abstract: States Supreme Court has become a central concern of political scientists who are interested in judicial behavior. There is now a substantial body of literature showing that state and federal judges sometimes take advantage of well-established features of the judicial system in order to ignore, evade, or modify significant Supreme Court pronouncements.1 For example, by making crucial findings of fact that may distinguish a case under consideration from a Supreme Court holding or by dismissing Supreme Court language as "mere dicta," lower court judges can reach decisions which are clearly at variance with those announced by the High Court. Thus, the Supreme Court, like any top level policymaker in a large organization, must contend with the problem of lower level officials who disagree with particular policies and who may take steps to have them rendered ineffective.2 This view acknowledges that despite the hierarchical nature of the American judicial system, both state and federal judges have wide latitude in implementing Supreme Court decisions. Although existent research provides considerable insight into the activities of lower courts, very few comparative analyses of state and federal judicial decision making have been performed. As Glendon Schubert pointed out several years ago, ". . .among contemporary political scientists, there is more discussion of the virtue of comparative analysis than there is demonstration of either the theoretical or empirical benefits to be derived from comparative work."3 This state of affairs has permitted several widely held notions about the contrasting behavior of state and federal judges to remain virtually unchallenged. For example, many legal scholars believe that Supreme Court decisions which uphold constitutional claims against the states are likely to be supported more strongly by federal judges than by state

Dissertation
01 Jan 1981
TL;DR: In this paper, a theory of judicial pluralism is presented, which claims that the basis for judicial assertion lies in individual conceptions of judicial role and uses one's conception to construct a tiered prepositional schema whereby particular questions may be answered.
Abstract: In the process of adjudication, judges are required to assert propositions that answer the issues a particular case raises. To understand whether the judge is correct in his assertions, a theory is needed which would explain the grounds for asserting propositions within a judicial decision. This thesis presents such a theory: that of judicial pluralism. Pluralism claims that the basis for judicial assertion lies in individual conceptions of judicial role. One uses one's conception to construct a tiered prepositional schema^ whereby particular questions may be answered. The schema is conventional, in that one's conception of role is based on beliefs about what sources a particular society demands that a judge use in reaching a decision, rather than what sources he ought to use. However, an individual's beliefs and attitudes figure prominently, as the concept of role is one about which disagreement is likely to be great. Pluralism is contrasted with three other theories. It attacks the skeptical position that assertion is subjective and a matter of personal belief, in part because that position fails to notice the conventional aspect of judicial role. It attacks the positivist position that claims that a master rule yielding a normative model can be found in legal systems, in part because that position fails to notice the disparity in positions among judges and observers due to varying propositional schemata. It attacks the position of Professor Dworkin, who claims that a theory of adjudication can always ensure a two-ordered truth value for any judicial question, in part because his position assumes agreement on concepts when such agreement is wanting. Pluralism is used to address several issues concerning reasoning within the judicial decision. It is also applied to analyze problems within contracts and constitutional law, including a discussion of the political consequences such analysis suggests.

Posted Content
TL;DR: In this paper, the authors focus on the statutorily recognized psychotherapist-patient privilege, including a history of its evolution, a discussion of its use in child-placement cases, and a proposal for an appropriate analytical approach to the privilege issue based on logical relevancy.
Abstract: This article focuses on the statutorily-recognized psychotherapist-patient privilege, including a history of its evolution, a discussion of its use in child-placement cases, and a proposal for an appropriate analytical approach to the privilege issue based on logical relevancy. The latter part of the article examines the constitutional right to privacy as it applies to the privilege, including a review of pertinent judicial decisions and a discussion of a proposed analytical approach in the constitutional context.


Journal ArticleDOI
TL;DR: In this paper, related judicial decisions in West Virginia are examined along with U.S. federal and state regulations, and a limited overview of Pennsylvania law is given, with an outline for a model legislative solution.
Abstract: The major institutional problem in production of gas from coalbeds is the legal question of who owns the gas. In this study, related judicial decisions in West Virginia are examined along with U.S. federal and state regulations, and a limited overview of Pennsylvania law is given. The problem could be resolved by litigation, legislation, or cooperation. An outline for a model legislative solution is given. However, it is recognized that cooperation may be a viable solution for near-term development of this unconventional gas source. 26 refs.

Posted Content
TL;DR: In this paper, a comparative overview of education law and policy addressing the linguistic and cultural needs of migrant children in two destination countries of immigration is presented, based on the experience of the United States and France as two important immigrant host countries in the industrialized west, or Global North.
Abstract: This article presents a comparative overview of education law and policy addressing the linguistic and cultural needs of migrant children in two destination countries of immigration. The author relies on the experience of the United States and France as two important immigrant host countries in the industrialized west, or Global North. Part I documents the legal instruments, i.e. the major legislative acts, administrative regulations and judicial decisions, adopted in both countries. Part II compares and critiques the policies promoted by the law in these two countries. Both France and the U.S. have instituted educational programs designed to meet the special needs of the children of immigrant workers and to aid "host" schools in absorbing large numbers of students from different linguistic and cultural backgrounds. While the French and American experiences are shaped by different political, demographic, cultural and educational factors, there are lessons of significance to be learned from the ways legislators, judges and other policy-makers in each country have dealt with this phenomenon.


01 Jan 1981
TL;DR: The notion of law as a system that dictates the content of what ought to be, law that imposes itself on the judge, is the perception explicitly articulated by Justice Holmes.
Abstract: Senator Roman Hruska defended Nixon's nomination of G. Harold Carswell by saying that mediocrity was entitled to representation on the Supreme Court. I It was a remarkable statement, and the memory that Hruska made it indicates we shared his view that something was awry with the Warren Court's readings of the law. What we cannot recall (if indeed we ever knew it) is the argument Hruska made in support of his position: "We can't have all Brandeises and Cardozos and Frankfurters and stuff like that. I doubt we can. I doubt we want to."2 "Stuff like that" is not something of which Hruska approves, and it must therefore be distinguishable from mediocrity, which Hruska argues should be represented on the Court. The basis on which mediocrity deserves representation is presumably that the law should reflect the society it is designed to govern. The implied contrast with "stuff like that," therefore, is distance from the law, a separation between Justices and the society for which they make law, a separation that permits the law to reflect the Court's view of what ought to be. 3 Law as a system that dictates the content of what ought to be, law that imposes itself on the judge, is the perception explicitly articulated by Justice Holmes. As is typical of Holmes' style, what is compelling is the graphic nature of the image in terms of which he expresses this perception of the judge as performing solely a ministerial function. Once the legislature has made a decision, argued Holmes, what a court should do is to enforce "the very meaning of a line in the law . . . that you intentionally may go as close to it as you can if you do not pass it."4 Like all graphic images, this vision of law as a clear line is at bottom an instructive simplificl:'ltion. Holmes' perception of law can provide a justification for stopping obstruction of New Deal social experimentation, but it is not a .. .. I

Journal Article
TL;DR: In this article, the authors focus on the statutorily recognized psychotherapist-patient privilege, including a history of its evolution, a discussion of its use in child-placement cases, and a proposal for an appropriate analytical approach to the privilege issue based on logical relevancy.
Abstract: This article focuses on the statutorily-recognized psychotherapist-patient privilege, including a history of its evolution, a discussion of its use in child-placement cases, and a proposal for an appropriate analytical approach to the privilege issue based on logical relevancy. The latter part of the article examines the constitutional right to privacy as it applies to the privilege, including a review of pertinent judicial decisions and a discussion of a proposed analytical approach in the constitutional context.

01 Jan 1981
TL;DR: In this article, the authors present an overview of some of the issues and problems in using risk-benefit and cost-benefit analysis in environmental decision making, and suggest that efforts should be made to reduce the subjective nature of administrative and judicial decision making involving public health and environmental risks.
Abstract: This paper presents an overview of some of the issues and problems in using risk-benefit and cost-benefit analysis in environmental decision making.It addresses the difficulty in both assessing public health and environmental risks, and balancing those risks against actual and perceived economic benefits. The paper notes the prevalence of ''unreasonable risk'' as a putative guide to action in a number of statutory and common law constructs. The paper indicates that reliance on the concept of ''reasonableness'' does not resolve the fundamental societal disagreement over balancing risks and benefits. Therefore, the article suggests that efforts should be made to reduce the subjective nature of administrative and judicial decision making involving public health and environmental risks.