Showing papers on "Judicial opinion published in 1985"
TL;DR: The post-New Deal Supreme Court emerged as an exceptionally active counter-majoritarian decision-making institution as discussed by the authors, and it is also important to examine the relationship between the Court's decisions and public opinion.
Abstract: The countermajoritarian activism of the Supreme Court is usually assessed in terms of the willingness of the Court to overturn legislation and/or to protect minorities. Using these criteria, the post-New Deal Supreme Court emerges as an exceptionally active countermajoritarian decision-making institution. It is also important, however, to examine the relationship between the Court's decisions and public opinion. Such an examination reveals that the Court's decisions overturning legislation and/or protecting minority rights were often supported by the distribution or at least the trend of nationwide public opinion and that when such support was lacking, the Court seemed reluctant to act. Thus, the policymaking activism of the post-New Deal Supreme Court was perhaps more consistent with majoritarian principles than is sometimes supposed.
82 citations
Book•
26 Sep 1985
TL;DR: In this article, a collection of ten unpublished decisions by the Warren Court puts the decision-making process of the Supreme Court in a new light by following the major changes that occur in each case from the circulation of tentative majority opinions to the final issuance of opinion, the book portrays how the justices communicate with each other and how they are influenced by each other's arguments.
Abstract: An important contribution to constitutional literature, this collection of ten unpublished decisions by the Warren Court puts the decision making process of the Supreme Court in a new light. By following the major changes that occur in each case from the circulation of tentative majority opinions to the final issuance of opinion, the book portrays how the justices communicate with each other and how they are influenced by each other's arguments. Interpretations and commentaries by the author illuminate the significance of each case and provide insight into the different judicial philosophies and personal styles of the justices. This book will be of substantial value to law schools, law libraries, bar associations, and lawyers practicing in the field of constitutional law.
17 citations
TL;DR: In this paper, the authors explore a heretofore-unexamined aspect of how the Supreme Court of the United States became the supreme tribunal, focusing on the succession of entrepreneurial lawyers who privately published reports of the Court's decisions from its inception into the 1830s.
Abstract: This article explores a heretofore-unexamined aspect of how the Supreme Court of the United States became supreme: the rise of the Supreme Court Reporter. The author focuses on the succession of entrepreneurial lawyers who privately published reports of the Court’s decisions from its inception into the 1830s (and beyond). Their volumes bear their names: Dallas, Cranch, Wheaton, and Peters. But in the earliest days before Henry Wheaton began reporting in 1816, practitioners – and lower court judges -- had to wait literally years before each collection of cases appeared. And even under Wheaton, the hero of this story, the volumes remained painfully expensive, and thus not widely circulated.
That is, until Richard Peters, Jr., arrived on the scene in 1827. Besides publishing his own volumes of current cases, Peters “condensed” and republished his predecessors’ volumes, stripping them of concurrences, dissents, and appendix notes, and thus making them greatly more affordable. Only then, when Wheaton and Peters came to blows, legally, did the question of who owned any copyright interests in the reports of decisions come to the fore. Who did? The Reporters? The Justices? No one? The public (via the public domain)?
The article recounts events before, during, and after the decision in Wheaton v. Peters in 1834, including a heated dispute on the bench itself on the day the opinions were handed down, and provides as well a detailed analysis of the doctrines those opinions discussed: statutory right vs. natural law, the importance of statutory formalities and, of course, copyright ownership in judicial reports.
Along the way, the reader meets a host of famous players, including not only the Reporters themselves but also Noah Webster, of spelling book and dictionary fame, Supreme Court Justices, among them John Marshall, Joseph Story (with whom Wheaton roomed in Washington during Court Terms), and others. Their combined efforts and conflicts resulted in preserving for posterity the opinions of the Nation's Court, in the process transforming that Court into the tribunal we know today: truly, the Highest Court in the Land.
15 citations
Journal Article•
TL;DR: The treating psychiatrist can change his initial clinical impression as a result of his ongoing relationship with the patient and his evaluation of response to treatment, and the psychiatric opinion offered is likely to be influential in determining the final decision.
Abstract: The treating psychiatrist can change his initial clinical impression as a result of his ongoing relationship with the patient and his evaluation of response to treatment. Such monitoring is difficult. if not impossible, in the usual practice of forensic psychiatry. Also, the legal consequences of judicial decisions based on psychiatric opinion may be quite serious. If the psychiatric opinion is to be influential in determining the final decision, it should be offered with as high a level of confidence as possible.
15 citations
TL;DR: For example, the authors argues that modern Indian law is characterized by the extent to which it has borrowed from Western, particularly English and American, sources, and that the borrowing is manifest in the statutes that comprise India's codified laws, in judicial decisions and in the form and content of Indian scholarship on law.
Abstract: Modern Indian law is characterized by the extent to which it has borrowed from Western, particularly English and American, sources. The incidence of this borrowing is manifest in the statutes that comprise India's codified laws, in judicial decisions andin the form and content of Indian scholarship on law. What is the nature of this borrowing? An American observer has suggested that Western 'modern' law has transformed India's 'traditional' legal system.' This is partly an attempt at analysis and partly a discouraging warning to traditionalists who were attempting the aborted restoration of Indian law.2 There is no doubt that modern adjudicating and other institutions are both abundant in their existence as well as their use. The normative development of Indian law has been centrally placed in the hands of legislatures and courts in a way in which it never was before. Lawyers and judges abound as custodians of the modern law, from which they derive power, status and fortune. But are most of these innovations just formal? Did Indian society accept modern Western law as a 'rational' entity, or did it accept, adapt and transform it in a manner that was peculiarly Indian? Is-as some American scholarship suggests-India one of those cultures which easily blend 'tradition' and 'modernity'?3 If so, to what end? Or, should we adopt the somewhat cynically expressed but more incisive comments of an English authority on Indian law that-
15 citations
01 Jun 1985
TL;DR: In this paper, the impact of variations in judicial selection circumstances on the attitudes and behavior of one of the major types of recruitment actors in the process the judicial voter is examined. But the authors focus on the recruitment process and do not consider the effect of the recruitment system on the voter's attitude toward the accountability-independence dilemma.
Abstract: AN UNAVOIDABLE tension between two important aims of government is built into modern state judiciaries.1 Judges, as major governmental actors, perform two distinct functions namely, that of resolving individual disputes between litigants and, on increasingly frequent occasion, that of establishing directions for public policy. Clearly, to resolve conflicts between contending litigants jurists must remain independent of the interests of those parties. Fairness and due process demand no less. However, on those frequent occasions when judicial decisions affect much of the citizenry, judges must be held accountable for those decisions. Democracy demands no less. Consequently, while judges must be independent of public pressures to settle disputes fairly, they must also be subject to public accountability for decisions that carry broad public import.2 This inevitable tension between judicial independence and public accountability is encountered directly in the consideration of judicial recruitment (Wasby 1978: 155; Nejelski 1975). It is precisely through the process of recruitment that expectations regarding accountability and independence are exchanged between judicial recruiters and would-be recruits. Our concern in this study is to determine the impact of variations in judicial selection circumstances on the attitudes and behavior of one of the major types of recruitment actors in the process the judicial voter. How do different recruitment systems influence the behavior of the electorate, and how do they affect the attitudes of thejudicial voter toward the accountability-independence dilemma?
14 citations
TL;DR: An examination of judicial decisions in the first three years of the Canadian Charter of Rights and Freedoms indicates that the Charter has fulfilled neither the worst fears of its critics nor the high hopes of its supporters.
Abstract: An examination of judicial decisions in the first three years of the Canadian Charter of Rights and Freedoms indicates that the Charter has fulfilled neither the worst fears of its critics nor the high hopes of its supporters. Jt has produced a flood of litigation in the lower courts which has gradually bubbled up to the Supreme Court of Canada and put that institution under a good deal of stress. Undoubtedly the Charter has resulted in the transference of some political activity from the political to the judicial arena. Although Canadian judges have shown themselves to be far more prepared to give effect to the constitutional Charter than they were to the statutory Bill of Rights, Charter decisions in these first three years have not seriously eroded the power of elected legislators. Most cases have involved challenges to procedural aspects of criminal justice. Few of the successful challenges have adversely affected policy interests of contemporary governments. The coming into force of the equality clause at the end of this three-year period could dramatically change this picture. In the meantime, the impact of the Charter on popular attitudes which many of the Charter's proponents said would be its most important effect remains unexplored.
13 citations
TL;DR: The results indicate that black defendants, regardless of place of residence, receive harsher sentences than whites, and the implication of these findings for the equitable administration of criminal justice is considered.
Abstract: dents of the community is derived from the concept of insiders and outsiders, the presence of community norms and values, and the influence of judicial decision making. Results from the analysis support the hypothesis for white defendants. The results indicate, however, that black defendants, regardless of place of residence, receive harsher sentences than whites. The study then considers the implication of these findings for the equitable administration of criminal justice.
11 citations
TL;DR: This paper examined the relationship between public opinion, crime rates, and sentencing in routine cases, including armed and unarmed robbery, burglary, larceny, and possession of narcotics, and found that high crime rates generally produced lenient sentences.
Abstract: Much recent research on public opinion and trial courts demonstrates a link between local attitudes and sentencing in highly visible criminal cases. However, such crimes are not typical of most trial court work. Our research examines relationships between public opinion, crime rates, and sentencing in routine cases, including armed and unarmed robbery, burglary, larceny, and possession of narcotics. The research includes over 6000 cases and measures public opinion in all twenty of Florida's trial court circuits. Except for possession of narcotics, no significant correlations were discovered between public opinion and sentencing, but high crime rates generally produced lenient sentences. The research questions the impact of public opinion on most litigation and suggests that judicial elites usually act without concern for local public opinion.
10 citations
TL;DR: In this article, Feldman and March argue that organizational decisionmakers often gather and display information relevant to a decision simply to show that they are good decisionmakers, and the display of information is a display of competence, and it provides legitimacy to the decision.
Abstract: In the large majority of cases, state courts of last resort, like other common law appellate courts, cite prior judicial decisions as authorities for their present decisions. Here, I offer and test one proposition concerning the amount of authority cited in appellate opinions. The proposition is simple: the more difficult and uncertain the decision, the more prior cases the court will cite. The proposition is an application of Feldman and March's (1981) argument concerning the symbolic and signaling functions of information in organizations. The proposition is tested on a sample of 5,976 majority opinions written by sixteen state supreme courts between 1870 and 1970 (see Cartwright; Kagan et al., 1977, 1978; Friedman et al.). I will argue that some of the features of cases about which this sample provides information are associated with decision difficulty and uncertainty and therefore predict more citations to authority when each feature is present than when it is absent. Feldman and March argue that organizational decisionmakers often gather and display information relevant to a decision simply to show that they are good decisionmakers. In this society, a decision provides the opportunity to display the proper attitude toward the concept of intelligent choice. One belief about intelligent choice is that more information allows better decisions. The display of information, therefore, is a display of competence, and it provides legitimacy to the decision. This symbolic display may be a
TL;DR: In this article, the authors argue that knowledge of potential effects and responses is preferable to ignorance, and that public responses to the decision may or may not undercut what the judges sought to achieve.
Abstract: A LL good things are scarce. Self-interested conduct is the handmaiden of scarcity. These are facts of life. Given scarcity, judicial decisions inevitably create, transfer, or destroy valuable things and affect people's decisions. Even justice is scarce. Disputes about attorneys' fees stem from the high costs of litigation, and rules about harmless error grow out of the costs of retrials (including the delay other litigants encounter when one case receives extra process). Judges must respond to scarcity. The effects of a court's decision on who gets how much of what good things may or may not be what the judges anticipated. Private and public responses to the decision may or may not undercut what the judges sought to achieve. The foundation of my Foreword1 is the belief that knowledge of potential effects and responses is preferable to ignorance. The Foreword contains three principal normative propositions:
TL;DR: A brief history of American court administration leadership, identifying important challenges for the 21st century, and offers some ideas for dealing with them can be found in this article, where the authors trace a brief history and identify important challenges.
Abstract: Enshrined on the marble facade of the Supreme Court building is the phrase "Equal Justice Under Law." To this end, judges have historically stressed fair and reasonable decisions. While just decisions are vital, administration of a system of justice is also critically important and deserves similar attention. The Founding Fathers recognized this in the Bill of Rights with the right of the accused to a speedy trial. Recently, Judge Jon Newman of the Court of Appeals of the Second Circuit emphasized that "Fairness of [the] system reflects the aggregate impact of the litigation process upon the lives of all actual and potential litigants. It is concerned with the money each person is obliged to spend to achieve an outcome [and] with the time each person must invest until an outcome is reached. .. ."' Judges and judicial administrators must consider the consequences and the impact not only of particular judicial decisions, but also of the system in which cases are decided. The judiciary's responsibility is twofold: case adjudication and court management. Despite growing public awareness and support for improved judicial administration, more intellectual and physical energies still need to be concentrated on providing more efficient and economical-and just-means of administering justice. This article traces a brief history of American court administration leadership, identifies important challenges for the 21st century, and offers some ideas for dealing with them.
Posted Content•
TL;DR: In this article, the citation practices of the New York Court of Appeals were analyzed through the use of sample cases from particular areas of law selected from three different years (1963, 1973, and 1983).
Abstract: Court citation practice is an objective measure of judicial behavior which, it can be hypothesized, will vary with the type of issue before the court. Variation in citation practice that can be related to the subject matter of the suit before the court may provide useful information about the judicial process attorneys and legal scholars alike.What sources of knowledge do courts turn to when providing authority for their decisions? What sources are seen as legitimate, and thus given legitimacy by citation in court opinions? By studying the citation practices of the New York Court of Appeals, the author hopes to quantify the influence of various sources (e.g. cases; statutes; legal treatises; law reviews and legal periodicals; etc.) and the legitimacy of the use of some sources. This information is relevant to two audiences: scholars interested in judicial decision making, and practicing lawyers who seek to understand which legal reasoning sources best persuade the court.In this study, the citation practices of the New York Court of Appeals were analyzed through the use of sample cases from particular areas of law selected from three different years (1963, 1973, and 1983). Cases from four different areas of law were sampled: constitutional, criminal, "concriminal" (cases falling within both the constitutional and criminal categories), and negligence. Differences in citation practice over time and between types of cases were found. Court citation practice in particular areas of law varied widely. Cases involving constitutional issues invoked a fuller use of authority than did those involving negligence or criminal issues alone. Suits containing negligence issues generally cited to more authority than those involving criminal issues. In all of these groups, differences were found in the types of authority cited by the court.The scope of the conclusions which can be drawn from this study must be circumscribed. Such a study will obviously be under inclusive -- its results "reflect only the superficiality of citation and not the deep undercurrents of unacknowledged reliance." Further, citation of precedent may leave unstated the reasons why the precedent is persuasive, as well as policy arguments and unstated legal and social philosophy behind any decision.
01 Sep 1985
TL;DR: In this article, the authors argue that the decision of the Privy Council in the Barrett case represents the most unfortunate of all judicial amendments because of its deleterious impact upon Canadian unity.
Abstract: The 1896 election, ushering in the Laurier era, was profoundly influenced by two Manitoba School cases decided in directly conflicting ways by the Supreme
Court of Canada and the Privy Council. The Supreme Court in the Barrett case
gave a reasonable interpretation to the denominational school rights guaranteed
by the constitution. However, the narrow interpretation by the Privy Council so
trivialized the protection that it must be regarded as an amendment to our
constitution. The author contends that this Privy Council case represents the
most unfortunate of all judicial amendments because of its deleterious impact upon Canadian unity. The amendment nurtured the growth of political separatism in Quebec by causing French Canadians to believe that only within Quebec would their cultural rights be protected. Franco-Manitobans were so disillusioned that almost ninety years elapsed before Manitoba's official Language Act of 1890, a clearly unconstitutional statute, was challenged in the Supreme Court. The Supreme Court itself was adversely affected and ceased to confront issues arising under section 93 of the Constitution Act, 1867 in the united way, initially exemplified by the Barrett case. The author occasionally uses biographical material in an attempt to understand the factors influencing the judicial decisions.
Journal Article•
TL;DR: In this article, the citation practices of the New York Court of Appeals were analyzed through the use of sample cases from particular areas of law selected from three different years (1963, 1973, and 1983).
Abstract: Court citation practice is an objective measure of judicial behavior which, it can be hypothesized, will vary with the type of issue before the court. Variation in citation practice that can be related to the subject matter of the suit before the court may provide useful information about the judicial process attorneys and legal scholars alike.What sources of knowledge do courts turn to when providing authority for their decisions? What sources are seen as legitimate, and thus given legitimacy by citation in court opinions? By studying the citation practices of the New York Court of Appeals, the author hopes to quantify the influence of various sources (e.g. cases; statutes; legal treatises; law reviews and legal periodicals; etc.) and the legitimacy of the use of some sources. This information is relevant to two audiences: scholars interested in judicial decision making, and practicing lawyers who seek to understand which legal reasoning sources best persuade the court.In this study, the citation practices of the New York Court of Appeals were analyzed through the use of sample cases from particular areas of law selected from three different years (1963, 1973, and 1983). Cases from four different areas of law were sampled: constitutional, criminal, "concriminal" (cases falling within both the constitutional and criminal categories), and negligence. Differences in citation practice over time and between types of cases were found. Court citation practice in particular areas of law varied widely. Cases involving constitutional issues invoked a fuller use of authority than did those involving negligence or criminal issues alone. Suits containing negligence issues generally cited to more authority than those involving criminal issues. In all of these groups, differences were found in the types of authority cited by the court.The scope of the conclusions which can be drawn from this study must be circumscribed. Such a study will obviously be under inclusive -- its results "reflect only the superficiality of citation and not the deep undercurrents of unacknowledged reliance." Further, citation of precedent may leave unstated the reasons why the precedent is persuasive, as well as policy arguments and unstated legal and social philosophy behind any decision.
TL;DR: The scope and effect of the two Queensland provisions concerning documentary hearsay mentioned above, sections 92 and 93 of the Evidence Act 1977-84, are examined in this article, where the authors focus on the two general and most widely used provisions.
Abstract: The purpose of this article is to examine the scope and effect of the two Queensland provisions concerning documentary hearsay mentioned above, sections 92 and 93 of the Evidence Act 1977-84. What is remarkable about this area of the law is that despite the wealth of comparatively complex statutory material there is a paucity of reported judicial decisions, not least in Queensland. Such cases as there are come in the main from England, New South Wales and Victoria, and it will be necessary to look to those and other jurisdictions for some guide as to how the Queensland provisions might be interpreted.Although there are other sections in the Queensland Evidence Act, such as s.84 and s.95, which deal with specific areas of documentary hearsay it will be necessary to defer an examination of them to a later time. This article will concentrate on the two general and most widely-used provisions.
Book•
01 Jan 1985
TL;DR: The authors presented a casebook on legal method and process that introduces students to the synthesis of judicial opinions, resolution of statutory issues, and the role of the lawyer, the courts and the legislature in conflict resolution.
Abstract: This innovative casebook on legal method and process introduces students to the synthesis of judicial opinions, resolution of statutory issues, and the role of the lawyer, the courts and the legislature in conflict resolution. The book differs from competing books in that it covers civil and criminal topics. It contains an Anatomy of a Legal Dispute that puts the following materials in proper perspective, as well as a glossary that has been fully augmented in the Fifth edition. A useful teacher's manual accompanies the book.
TL;DR: The processes of bargaining and cooperation among the major actors who used the decree to obtain the new legislation and factors that facilitated the catalytic impact of the judicial decision are discussed.
Abstract: This paper examines the way in which a United States district court decision in Texas catalyzed state legislation in that state. The events leading from the decision to the enactment of the statute are chronicled. The paper also describes the processes of bargaining and cooperation among the major actors who used the decree to obtain the new legislation. In the conclusion, factors that facilitated the catalytic impact of the judicial decision are discussed.
TL;DR: In this paper, the authors show that there is no connection between a judicial decision's being required by law and its being justified, and that any justification must turn on doctrines that come from outside the law.
Abstract: Philosophers of law generally appear to assume that there is a very close connection between a judicial decision's being required by law and its being justified. In this paper I shall try to show that this assumption is mistaken. Legal theory recently has focused on the problem of "hard cases," in which there is reason to doubt that the law requires a particular decision, to the exclusion of alternative possible decisions. The relevant question is not whether the law requires that a judge render some decision or other, thus deciding those cases, but whether the law that can truly be said to exist before a decision is rendered requires one particular decision. Discussions of this issue often seem to assume that this is equivalent to the question, whether a particular decision is uniquely justifiable. Less attention has been paid to what we may call "easy cases," in which it seems clear that the law requires a particular decision. What is said about them, however, does appear to assume that a particualar decision's being required by law is equivalent to its being justified. Those who believe that there is a significant connection between a judicial decision's being required by law and its being justified would no doubt agree, upon reflection, that the connection is not one of equivalence. Some qualification of the view under discussion would seem to be required by considerations such as the following. First, someone who believes that no particular decision is required by law in a hard case need not hold that no decision can then be justified. It may be possible for a court to justify a par ticular decision, to the exclusion of the alternative decisions, even when no decision is required by law. In that event, any justification must turn on doctrines that come from outside the law. If so, however, we should not assume that a judicial decision can be justified only when it is required by law. In other words, we must allow that a judicial decision's being required by law is not, in general, a necessary condition of its being justified. Second, and perhaps more controversially, it seems possible for a judicial decision to be justified, all things considered, even when it is con trary to a decision that is required by law. This can happen when the in justice that would be done by following the law provides sufficient reason for a judge not to follow it and to render a different decision. If we wish to leave room for this possibility, then we must allow that a judicial decision's
TL;DR: The Eighth Amendment Revisited: A Model of Weighted Punishments as discussed by the authors presents a model of punishment designed to satisfy the proportionality and disparity requirements of the eighth amendment and suggests several difficulties with the main arguments of the article.
Abstract: In "The Eighth Amendment Revisited: A Model of Weighted Punishments," Nevares-Muniz presents a model of punishment designed to satisfy the proportionality and disparity requirements of the eighth amendment.' This commentary focuses upon the nature of the proposed model and suggests several difficulties with the main arguments of the article. The author begins by discussing the concept of "cruel and unusual punishment." She traces its roots from the English Bill of Rights of 1689 through its original appearance in American judicial opinion in O'Neil v. Vermont,2 through the important case of Weems v. United States,3 and to the recent cases of Coker v. Georgia4 and Rummel v. Estelle.5 The discussion narrows to a treatment of the proportionality requirement associated with the currently conceived notion of cruel and unusual punishment. The author points to the importance of the proportionality requirement by referring to the work of Beccaria,6 Hart7, and the Criminal Code Revision Act of 1979.8 Nevares-Muniz then establishes the importance of the propor-
Posted Content•
TL;DR: The post-New Deal Supreme Court emerged as an exceptionally active counter-majoritarian decision-making institution as mentioned in this paper, and it is also important to examine the relationship between the Court's decisions and public opinion.
Abstract: The countermajoritarian activism of the Supreme Court is usually assessed in terms of the willingness of the Court to overturn legislation and/or to protect minorities. Using these criteria, the post-New Deal Supreme Court emerges as an exceptionally active countermajoritarian decision-making institution. It is also important, however, to examine the relationship between the Court's decisions and public opinion. Such an examination reveals that the Court's decisions overturning legislation and/or protecting minority rights were often supported by the distribution or at least the trend of nationwide public opinion and that when such support was lacking, the Court seemed reluctant to act. Thus, the policymaking activism of the post-New Deal Supreme Court was perhaps more consistent with majoritarian principles than is sometimes supposed.
01 Jan 1985
TL;DR: The concept of acte administratif (Verwaltungsakt) is a core concept of the German administrative law as discussed by the authors and has been used in many laws on administrative courts.
Abstract: ‘Administrative act’ (Verwaltungsakt) is a core concept of the German administrative law.1 It covers most of the actions of the administrative authorities through which they affect the legal interests of an individual. The origin of this concept is traced from the French concept of acte administratif from which it was borrowed by the German jurists and developed into a German concept since 1826 onwards. To begin with it covered all measures of the administration whether taken under the private or public law. But slowly its scope was confined to the administrative measures in the area of public law and was finally defined by Professor Otto Mayer in his monumental work on German administrative law in 1895 as an ‘authoritative pronouncement of the administration which in an individual case determines the rights of a subject.’2 The concept so defined was applied by the administrative courts and further refined in the later juristic writings but it did not find its mention in any legislation till after the World War II when the expression ‘administrative act’ was used in some laws on administrative courts. Later it also found its mention in article 129 (1) of the Basic Law and several sections of the Law on Administrative Courts of 1960. Finally, on the basis of the existing law and practice the concept has now been defined in Sect. 35 of the Law of Administrative Procedure of 1976 in the following words:
Administrative act is every order, decision or other sovereign measure taken by an authority for the regulation of a particular case in the sphere of public law and directed at immediate external legal consequences.