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Showing papers on "Judicial opinion published in 1982"


Journal ArticleDOI
TL;DR: Goldman et al. as mentioned in this paper found that a substantial proportion of the outcomes in unanimous decisions in both periods were found to reflect the ideological preferences of the panel majority, and that criminal appeals and the unanimous reversals of decisions in cases raising economic issues were the types of cases in which unanimous decisions were most likely to be consistent with the ideology of the court majority.
Abstract: to divided decisions. Unanimous decisions of the U.S. courts of appeals from two time periods separated by three decades were studied. Contrary to the widespread expectation that most unanimous decisions were truly consensual decisions whose outcomes were determined by precedent or other institutional/role restraints, a substantial proportion of the outcomes in unanimous decisions in both periods were found to reflect the ideological preferences of the panel majority. Criminal appeals and the unanimous reversals of decisions in cases raising economic issues were the types of cases in which unanimous decisions were most likely to be consistent with the ideology of the court majority. Following the pioneering work of Herman Pritchett (1941, 1948), a whole generation of students of judicial decision making has focused on the votes (rather than the opinions) of judges while developing increasingly sophisticated methods of quantitative analysis. With few exceptions, modern students of appellate courts have limited these analyses to nonunanimous decisions. This limitation is usually based on Pritchett's assumption that some cases present the judge with "choice situations sufficient to alter the outcomes while other cases do not" (Goldman, 1969, p. 217). If this assumption is accepted, one must then ask how one knows which cases present reasonable decisional alternatives. The answer supplied by the Pritchett model is that dissent may be taken as an objective indicator that legitimate alternatives were open to the judges. Consensus, on the other hand, is thought to indicate the absence of a real choice situation. The reasons for the exclusion of unanimous decisions in the analysis even of courts with much lower dissent rates than those found on the Supreme Court are spelled out most clearly by Sheldon Goldman. In studies of the U.S. courts of appeals Goldman's model suggests that "in general a consensually decided case indicates that 'objectively' the case situation (either because of clear-cut precedent, or the straight-forward

79 citations


Journal ArticleDOI
TL;DR: This article examined the linkages between public opinion and the U.S. Supreme Court and found that race is declining as an explanation for variations in support for the Court in the 1970s.
Abstract: In the 1960s, Murphy and Tanenhaus examined the linkages between public opinion and the U.S. Supreme Court. This article represents a new look at that question within the context of the 1970s, using national survey data. Four clusters of explanations are developed, based upon the previous literature, and tested, using trust in the Court as the dependent vanable. The two most important explanatory variables found are race and education, but race is declining as an explanation for variations in support for the Court.

32 citations


Journal ArticleDOI
01 Jun 1982
TL;DR: Rohde as mentioned in this paper examined the five-member decision coalitions in the oral argued civil liberties cases on the Warren Court and found that the marginal and pivotal justice was chosen to write a significantly greater share of the opinions of the Court than can be expected by chance.
Abstract: UPREME COURT scholars are interested in opinion assignment on the Court because the justice who writes the Court's opinion has substantial control over its content. Four different researchers (Danelski, 1960; Ulmer, 1970; McLauchlan, 1972; and Rohde, 1972) examined four different data sets and found that some opinion assigners, in some kinds of cases overassigned the opinion to some categories of justices close to the dissenters (see Table 1). The most ambitious of the opinion assignment studies was the one conducted by Rohde. Rohde inspected the five-member decision coalitions in the orally argued civil liberties cases on the Warren Court and found that the marginal and pivotal justice was chosen to write a significantly greater share of the opinions of the Court than can be expected by chance. The marginal justice in a five-person decision coalition is the justice in the coalition who is ideologically closest to the minority, while a pivotal justice is the justice furthest away ideologically from the opinion assigner. Why is the pivotal and marginal justice favored in opinion assignment? We learn from Rohde that in civil liberties cases the opinion assigner seeks an opinion that conforms to his own ideological views and to achieve this end he usually assigns the opinion to himself or to a justice ideologically close to him. Therefore, when the opinion assigner designates the marginal and pivotal justice to author the Court's opinion he is depriving himself of a benefit. What might the opinion assigner get in return for giving up this

19 citations


Journal Article
TL;DR: This article discusses legal and psychiatric models in conflict around scientific data, modes of clinical practice, and the manipulation of reality.
Abstract: When epistemologic problems arise at junctures in relation to the interface between psychiatry and law, the conflicts between these disciplines are commonly based on a fundamental difference in conceptualization, at times, even a clash of models of the world. This article discusses legal and psychiatric models in conflict around scientific data, modes of clinical practice, and the manipulation of reality. An understanding of these models and their conflict may aid in reconciling the two disparate views. Recent judicial decisions and legal opinions will serve as examples. One important difference to note at the outset is that the legal model lacks the empirical investigative tradition inherent in the scientific model; legal and clinical research seek markedly different data in different ways, producing quite different views of human nature and behavior. Put another way, the legal/judicial system is theory-driven, since the material of that system is best analyzable in theoretical terms. As a consequence, the manner or reasoning employed therein is primarily inductive in nature. In this way the evolution of law proceeds from gradual additions to past law; this method has served as the justly valued core of the American common law system. In contrast, the clinical/scientific system is driven by largely empirical approaches. Consequently this model draws largely on deductive reasoning to reach its conclusions. We may anticipate that conceptualizations of what constitute valid data could well be a locus of possible conflict between the disciplines.

9 citations


Journal ArticleDOI
TL;DR: The main aim of as discussed by the authors is to clarify the dispute over judicial discretion by distinguishing the different senses in which claims about judicial discretion can be understood and by examining the arguments for these various interpretations.
Abstract: The main aim of this paper is to clarify the dispute over judicial discretion by distinguishing the different senses in which claims about judicial discretion can be understood and by examining the arguments for these various interpretations. Three different levels of dispute need to be recognized. The first concerns whether judges actually do exercise discretion, the second involves whether judges are entitled to exercise discretion, and the third is about the proper institutional role of judges. In this context, the views of Dworkin, Raz, Perry, Greenawalt, and Sartorius are examined. Finally, it is suggested that a resolution of the judicial discretion controversy requires a satisfactory theory of the justification of judicial decisions.

7 citations




Journal ArticleDOI
TL;DR: The authors investigated the question of whether majority or non-majority status constitutes a variable sufficiently strong to predict the rhetorical quality of the opinion of a Supreme Court Justice William O Douglas' Supreme Court opinions.
Abstract: Using a sample of Supreme Court Justice William O Douglas' Supreme Court opinons as the data base, this study investigated the question of whether majority or non‐majority status constitutes a variable sufficiently strong to predict the rhetorical quality of the opinion The three traditional schools of legal philosophy, Natural Law, Legal Positivism, and Legal Realism, provided the basis of three hypothetical rhetorical genres which were found to be present in statistically similar frequencies in all opinion types These findings (1) call into question the conventional wisdom that majority and dissenting opinions represent different rhetorical sub‐species, and (2) suggest that a more fruitful avenue of analysis looks to the generic architechtonics of Supreme Court opinions rather than to the relatively more superficial dimension of stylistics

6 citations


Journal ArticleDOI
Ray O. Werner1
TL;DR: The U.S. Supreme Court conditions the legal environment of marketing, and over the past six years, its decisions have both limited and expanded the constraints on marketers as discussed by the authors, and indications are that future changes may be imminent, particularly in allowing greater marketing autonomy within a private enterprise system.
Abstract: The U.S. Supreme Court conditions the legal environment of marketing, and over the past six years, its decisions have both limited and expanded the constraints on marketers. Constraints have been imposed on marketing operations, particularly pricing and channels of distribution, on marketing organizations, and on the relevant regulatory procedures. Indications are that future changes may be imminent, particularly in allowing greater marketing autonomy within a private enterprise system.

5 citations


Journal ArticleDOI
TL;DR: The Matsunaga Bill as discussed by the authors is an example of such an approach, and it has been implemented in the United States since 1990. But it is not applicable to the case of art exports.
Abstract: Summary Introduction. The Problem: Six Typical Cases; National and International Interests. Interests of Exporting Nations: Specific Cultural Value; The Archaeological Interest; Integrity of the Work of Art; Physical Safety of the Work of Art; The Economic Interest; The Artistic Interest; The Distribution Interest; Mere Retention. The International Interest: Type 1 Cases; Type 2 Cases; Type 3 Cases; Type 4 and 5 Cases; Type 6 Cases; The Relevance of Ownership; Good Faith Purchasers. The Interest Analysis: The Importance of a Licit Market; The Quality of Art Production and Development Programs in Art Exporting Nations. United States Practice: Self Restraint; Federal Legislation and Treaties; Executive Action; Civil Judicial Decisions; Criminal Prosecution. Implementation in the United States: The Matsunaga Bill; The Interest Analysis Schematized; Application of the Scheme; Classification Decisions; Choice of Remedy; Comparison with United States Practice. Conclusion.

5 citations


Journal Article
TL;DR: This report is intended to familiarize the reader with the current legislation concerning state definitions of death, the pertinent judicial decisions concerning termination of life support and the current status of medical/ethical committees.
Abstract: This report is intended to familiarize the reader with the current legislation concerning state definitions of death, the pertinent judicial decisions concerning termination of life support and the current status of medical/ethical committees. However, it is of paramount importance to all health care personnel to become involved in the resolution of these problems. Current information regarding legal clarity to these issues leaves much to be desired. Unless we wish major decisions that will affect us all to be decided by others, it is strongly suggested that we become directly involved in this process and accept the challenge and the opportunity to influence major legal, ethical, and medical decisions.

Journal Article
TL;DR: A constitutional revolution is a long process in which a fundamental shift takes place in constitutional values diffused throughout society by means of law, administrative actions, judicial decisions, and education, both formal and informal.
Abstract: Modern Japan has experienced two constitutional revolutions, one from the latter half of the nineteenth century until 1945, and the other since 1945. By ‘constitutional revolution’ is meant a long process in which a fundamental shift takes place in constitutional values diffused throughout society by means of law, administrative actions, judicial decisions, and education, both formal and informal.


Journal ArticleDOI
TL;DR: The resurgence of antievolution legislation provides a useful opportunity to review the history of this issue, and to put the current dispute in its First Amendment context.
Abstract: struck down by a lower federal court on the grounds that creation science is not science at all, but religion [McLean v. Arkansas Bd. of Education, F. Supp. (Ark. 1982) (opinion reprinted in Science, 215: 934-43, Feb. 19, 1982]. But this judicial opinion may iot close the books on the issue. Those religions that view evolution as a dangerous heresy will continue to oppose its teaching in any way they feel reasonable; and even if their statutes are consistently declared unconstitutional, some may still introduce them, and legislatures may still pass them, simply to keep the issue in the public eye. The resurgence of antievolution legislation provides us with a useful opportunity to review the history of this issue, and to put the current dispute in its First Amendment context. The first clause of the First Amendment to the United States Constitution is that "Congress shall make no law respecting the establishment of religion or prohibiting the free exercise thereof. ... The theory of the amendment is that the state and organized religion will survive only if they keep to their own realms. As the U.S. Supreme Court has expressed it, "A union of government and religion tends to destroy government and degrade religion" (Engel

Journal ArticleDOI
TL;DR: In this paper, a methodology is presented for analyzing Age Discrimination in Employment Act decisions in the federal courts and frequency distributions are presented that demonstrate that most of the cases have been brought on behalf of white males in professional/managerial occupations.
Abstract: This article discusses the application of content analysis to judicial decisions. A methodology is presented for analyzing Age Discrimination in Employment Act decisions in the federal courts. Frequency distributions are presented that demonstrate that most of the cases have been brought on behalf of white males in professional/managerial occupations. These cases arose when the employee was terminated and were successfully defended by employers.


Journal ArticleDOI
TL;DR: In this paper, the California Supreme Court considered the power of courts to compel satisfaction of money judgments rendered against the state when the state refuses to pay them, and the Mandel majority decided that the legislature's refusal to satisfy Mandel's court-awarded attorney fees amounted to an unconstitutional re-adjudication of the judicial decision to award those fees, and was therefore an encroachment on judicial power.
Abstract: In Mandel v. Myers,' the California Supreme Court considered the power of courts to compel satisfaction of money judgments rendered against the state when the state refuses to pay them. A money judgment under state law against the state traditionally has been held merely to liquidate the litigant's claim, while satisfaction of the judgment has been left to the legislature. The Mandel majority decided that the legislature's refusal to satisfy Mandel's court-awarded attorney fees amounted to an unconstitutional re-adjudication of the judicial decision to award those fees, and was therefore an encroachment on judicial power. The court held that a fund appropriated for operating expenses and equipment for the state agency that Mandel sued, though not legislatively intended to pay the attorney fees, could by virtue of the budget's broad language be applied to the claim by judicial writ of mandate.

Journal ArticleDOI
TL;DR: A detailed historical account of the development of Arizona ground-water policy provides a useful perspective from which to examine the principal forces of change driving the reform of this portion of State water policy as mentioned in this paper.
Abstract: The development of Arizona ground-water policy has been evolutionary. Courts and the State legislature have responded to particular problems, but until recently have stopped short of a comprehensive framework for such policy. This paper identifies and describes the major political forces of change responsible for reform of ground-water law in Arizona. Historical developments surrounding the development of such policy are examined to interpret these forces of change. A detailed historical account of the development of Arizona ground-water policy provides a useful perspective from whichto examine the principal forces of change driving the reform of this portion of State water policy. Arizona ground-water policy has evolved from a previous policy of nonmanagement to “after the fact” management currently embodied in the 1980 Groundwater Management Act. Changing social attitudes and political challenges have continued to alter the institutional framework of the water policy-making process ultimately shifting the arena from the judicial to the legislature. After nearly half a century of political conflict, judicial decision and legislative response, Arizona enacted a comprehensive ground-water code. Political forces characterized by repeated Federal threat affecting a major reclamation project and special interest group pressures resulting from a 1976 judicial decision combined with the physical realities of ground-water exploitation to force reform in the State ground-water policy. Due to high decision costs, such reform was achieved through structural decisions delegating the more difficult allocative decisions to special interests directly affected by the ultimate policy. In turn and out of political necessity, a far-reaching, progressive legislative proposal for ground-water policy became the product of a delicately negotiated compromise among competing water interests achieved through the process of agreement. After the major decision costs had been incurred through such negotiations, the reform initiative was then ratified by the State legislature as the 1980 Arizona Groundwater Management Act, absent the tremendous political costs otherwise inevitable to the legislative process.

Book ChapterDOI
01 Jan 1982
TL;DR: The legal rights movement for children and youth is a unique American phenomenon as mentioned in this paper, which represents only one component of a larger movement that has focused on the attitudes and beliefs about the social roles of all individuals.
Abstract: Publisher Summary This chapter explores the issues and goals of the youth rights movement and reviews the traditional and legal rights of parents relating to the health of their children as well as key judicial decisions. The chapter discusses the relationships among adolescents, parents, and government. The legal rights movement for children and youth is a unique American phenomenon. It represents only one component of a larger movement that has focused on the attitudes and beliefs about the social roles of all individuals. The chapter describes the role of health care professionals serving youth and provides recommendations to clinicians who deal with these complex issues. The reliance on medical judgment in determining the nature and extent of medical treatment of minors and the degree of parental involvement in those decisions have been upheld by the courts. The access of minors to certain medical treatments has been established. The laws respect their ability to decide for themselves while recognizing traditional legal and affectional prerogatives of parents. The Supreme Court appears open to decisions of states establishing guidelines for situations in which parental interference seems unwarranted or obstructive to beneficial medical procedures.

Journal Article
TL;DR: In this article, the current legal developments in Botswana, Lesotho, Namibia and South Africa with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.
Abstract: In this contribution the current legal developments in Botswana, Lesotho, Namibia and South Africa with regards to principal legislation, government notices and judicial decisions are briefly descriptionbed.

Book ChapterDOI
01 Jan 1982
TL;DR: The concern shown by the ILO Committees over the problems of non-self-executing treaty provisions and the priority of subsequent laws over treaties was to be expected as discussed by the authors. But they have also evidenced considerable concern over the problem of the lack of publicity given to treaty provisions, and the uncertainty resulting from conflicting laws and treaty provisions even in cases where the legal system clearly provides that treaty provisions prevail over conflicting laws.
Abstract: The concern shown by the ILO Committees over the problems of non-self-executing treaty provisions and the priority of subsequent laws over treaties was to be expected. But they have also evidenced considerable concern over the problems of the lack of publicity given to treaty provisions and the uncertainty resulting from conflicting laws and treaty provisions—even in cases where the legal system clearly provides that treaty provisions prevail over conflicting laws. The Committee of Experts has insisted on the adoption of legislation or administrative regulations implementing conventions as a means of providing more publicity for convention norms and as a means of avoiding uncertainty as to the status of a particular convention norm. It has frequently requested the adoption of national legislation or administrative directives because of its conviction that national practice was not in conformity with convention norms. The governments in question have, in a great number of cases, adopted the implementing legislation or administrative measures.