Showing papers on "Judicial opinion published in 1988"

Gray Markets and the Legal Status of Parallel Importation

Abstract: The authors describe how and why gray marketing occurs in the context of legal and illegal (shadow) marketing activities. The regulatory and judicial decisions relating to gray marketing activities...

Hard Judicial Choices: Federal District Court Judges and State and Local Officials

Abstract: In controversial court cases involving civil rights, schools and housing, prison reform, and other social issues, federal district-court judges are often called upon to make some of the most difficult judicial decisions. Asked to protect the constitutional rights of all individuals, even when such protection may be at odds with the interests of local majorities, federal district-court judges are frequently faced with pressure, ridicule, and even threats to themselves or their families when deciding and implementing complex remedial decrees. Why do judges issue these decrees given the difficulties involved? How do these cases arise? How are they prosecuted and remedies fashioned when federally protected rights are violated? How can relations between federal judges and state and local officials be improved? This book, the first to attempt to view these cases from the perspective of district-court judges, examines some of these questions through five comparative case studies involving housing discrimination, school desegregation, mental health facilities, and the right to treatment, prison conditions, and policy/community relations. An introductory chapter presents a clear overview of the remedial decree process. Each of the following case studies is preceded by a chapter that sets the case in its legal, administrative, and political context.

Monopolizing the Law: The Scope of Copyright Protection for Law Reports and Statutory Compilations

Abstract: West Publishing v. Mead Central Data was wrongly decided by the Eighth Circuit, as measured by the Copyright Clause of the Constitution, the Copyright Act of 1976 and, importantly, prior Supreme Court precedents. This article chronicles those shortcomings. In the litigation between West Publishing Company and Mead Data Central, Inc., the court was tasked with balancing the copyright protection against unfair competition accorded an author’s work with the benefit to the public of having free access to the law. Mead had made available to the public, via LEXIS, its new online legal research service, texts of decisions contained in the volumes of West’s National Reporter system. In the process, Mead had referenced, through star paginations, the placement of decisions in West’s volumes. West claimed that Mead’s star pagination references infringed what West claimed to be the copyrighted arrangement of cases in its volumes. The Eighth Circuit determined that West held the copyright protection it asserteded. There had been four earlier decisions by the Supreme Court on the copyrightability of judicial reports: Wheaton v. Peters, Banks v. Manchester, Callaghan v. Myers, and Banks Law Publishing v. Lawyers’ Co-operative Publishing. All of them weighed against the Eighth Circuit’s decision. The Copyright Act of 1976 protects only “original work[s] of authorship” and precludes copyright protection for trivial elements of a work-product containing the law, such as page numbers in judicial opinions and section numbers in statutory compilations. Overarching all of these considerations, the Copyright Clause emphasizes the three doctrinal imperatives of copyright: to promote learning, to secure the author’s right to profit, and to enhance the public domain. West Publishing eviscerate each of these imperatives. West v. MDC involves the intersection of copyrights for works embodied in old and new communications technologies, making the claim novel both factually and legally. The case is not the first, nor will it be the last, to sacrifice the public’s good in favor of private interests, in the process making bad law. Although West Publishing is wrongly decided, the case remains precedent despite its deficiencies and threatens to damage the integrity of copyright law.

Political consequences of ethical investing: The case of south Africa

Abstract: This paper discusses the economic impact and political consequences of ethical investing, with particular attention to the case of South Africa. The origins of ethical investing are examined, along with the institutions and strategies by which ethical investing operates today. Of immediate relevance to managers is a recent judicial decision upholding Baltimore's divestment ordinance. The discussion concludes with an assessment of the likely consequences of ethical investing for U.S. multinationals in Southern Africa.

Legal Innovation within the Wider Intellectual Tradition: The Pragmatism of Oliver Wendell Holmes, Jr.

Abstract: Oliver Wendell Holmes, Jr. is one of the dominant figures in American jurisprudence. As a scholar, he wrote prolifically about legal theory and legal history. His book The Common Law is one of the most influential studies of the common law tradition; it has shaped the views of American legal scholars for several generations. In addition, Holmes spent nearly forty years as a judge-first as a justice on the Massachusetts Supreme Judicial Court and later as an Associate Justice of the United States Supreme Court. On the bench, Holmes was a formidable presence influencing the development of American law. His judicial opinions are both numerous and memorable. More than fifty years after his death, casebooks still include many of his opinions and legal periodicals frequently contain analyses of his judicial philosophy.' Indeed, Holmes is so central to the American legal tradition that understanding what Holmes thought about law is an important step in understanding one's own thoughts on legal theory.

Legal Innovation Within the Wider Intellectual Tradition: The Pragmatism of Oliver Wendell Holmes, Jr.

Abstract: Oliver Wendell Holmes, Jr. is one of the dominant figures in American jurisprudence. As a scholar, he wrote prolifically about legal theory and legal history. His book The Common Law is one of the most influential studies of the common law tradition; it has shaped the views of American legal scholars for several generations. In addition, Holmes spent nearly forty years as a judge-first as a justice on the Massachusetts Supreme Judicial Court and later as an Associate Justice of the United States Supreme Court. On the bench, Holmes was a formidable presence influencing the development of American law. His judicial opinions are both numerous and memorable. More than fifty years after his death, casebooks still include many of his opinions and legal periodicals frequently contain analyses of his judicial philosophy.' Indeed, Holmes is so central to the American legal tradition that understanding what Holmes thought about law is an important step in understanding one's own thoughts on legal theory.

The physician, the media, and the 'spectacular' case.

Abstract: THE PRESS came into the operating theater 20 years ago when Christiaan Barnard, MD, electrified the world by performing the first human heart transplant. Since then, physicians with a "spectacular" medical case have found themselves, their patients, and their projects in the unwavering spotlight of the press. In our media-intrusive society, the spectacular case confronts physician-researchers with dilemmas unknown to their professional forebears. If the research happens to be conducted in the United States, the problems—or opportunities—tend to be intensified. American press organizations are unique in that their freedom to report news is guaranteed by the national constitution, and freedom and protection from previous restraint cannot be limited by government. Legislation and judicial decisions during the past quarter century have tended to make reporters' access to information easier, and citizens' recourse in libel actions more difficult. Consider these factors in relation to a spectacular, newsworthy medical case, especially one where

Before Plessy, Before Brown: The Development of the Law of Racial Integration in Louisiana and Kansas

Abstract: In the face of the Nixon-Reagan counterrevolution against liberal decisions of the Warren Court, some liberal judges and legal commentators have called for an increased reliance on state courts for the protection of civil rights and civil liberties. To gauge how well state courts and legislatures protected civil rights in the nineteenth century, I examined twenty school integration cases and numerous legislative and state constitutional convention actions in Louisiana and Kansas from 1868 through 1903. Contrary to what Raoul Berger and others have asserted, black integrationists had many allies in the mainstream of the Republican party in the late 19th century. Not only did they pass laws prohibiting the exclusion of children from any school because of race, color, or previous condition of servitude, but they represented black plaintiffs in numerous school integration cases, most of which have previously been unknown to or at least little noticed by scholars. At least one judge ruled segregation contrary to the Fourteenth Amendment, while another came close to doing so. The arguments of lawyers, legislators, and black petitioners to legislative bodies were all similar and often quite sophisticated. In particular, the unpublished briefs in three Louisiana cases made clear how intermixed contentions based on state and national constitutions were. If the state constitution and laws created a right and the national constitution and laws prohibited unequal enjoyment of state-created rights, then legal inequities violated rights on both governmental levels simultaneously. From 1877 on in Louisiana, and from 1903 on in Kansas, blacks lost the strong protection against unequal schools that they had enjoyed, at least de jure, earlier. Whether the reversals reflected shifts in white public opinion is unclear, for it was not the white populous that made the changes, but a new, younger set of white racist judges. Their ability to reverse or bypass earlier liberal judicial decisions or legal provisions demonstrates how fragile rights can be in the several states and undermines the empirical foundations of what might be called "the new states' rights."

Redefining the Supreme Court's Role: A Theory of Managing the Federal Judicial Process

Abstract: Discusses the workload crisis of the United States Supreme Court and argues t the role of the Court should be as manager of the national lawmaking process

The psychiatrist's guide to right and wrong: judicial standards of wrongfulness since M'Naghten.

Abstract: In insanity defense litigation, the precise legal definition of wrongfulness is often critically important. References in the M'Naghten Rules to the appropriate standard of wrongfulness were ambiguous, resulting in a divergence of judicial opinion as to whether wrongfulness means legal wrong, subjective moral wrong , or objective moral wrong . This article reviews and analyzes these three judicial standards of wrongfulness in the context of case law from jurisdictions that follow each of the respective standards. The evolution of knowledge of right and wrong tests of criminal responsibility is traced back to its philosophical roots. Most psychiatrists claim no expertise in matters of morality or law. The American Psychiatric Association would bar psychiatric expert testimony on the ultimate issue of insanity, on the grounds that there are “impermissible leaps in logic” when psychiatrists opine on the probable relationship between medical concepts and moral-legal constructs. Whether or not they testify on the ultimate issue, psychiatrists should ascertain the applicable standard of wrongfulness in order to properly relate their findings to the relevant legal criteria for insanity and thereby enhance the probative value of their testimony.

A Judicial Decision Under Pressure: A Dramaturgical Analysis of the Rosenberg Case.

Abstract: ii Chapter One: Introduction 1 Statement of the Problem 2 Review of Relevant Literature 6 Methodology Used in the Study 16 Organization of Data 19 Significance of Study 21 Conclusion 22 Notes # 23 Chapter Two: Overview of the Scene 24 Naming the Scene 28 The Cold War Period 29 The Red Scare Period 39 The Korean War Period 58 Other Post War Problems 63 Images Created By the Scene 65 The Scene as the Dominating Element 67 Conclusion 68 Notes 69 Chapter Three: The Act and Agency 70 Overview of the Act and Agency 71 Atomic Spying in the 1940s 74

The Discretionary Heart of Administrative Law

Abstract: This chapter argues that administrative law is so much occupied with defining the boundaries of discretion when the substance of decisions is under review that it would not be inappropriate to give it an alternative name of the law of public discretions. Likewise, the requirements of natural justice and legitimate expectations may be seen as boundaries of different kinds, superimposed by the courts to supplement or qualify the bare bones of generally-worded discretions. And just as the subject-matter of judicial decisions in the whole field is essentially the scope of discretions, so the remedies which the courts may grant are very largely discretionary.

The Case of Baby M: Love's Labor Lost

Abstract: This essay examines the New Jersey Supreme Court's 1988 decision in the case of In re Baby M and the effect of the holding on the consequences of collaborative conception. Rather than embrace, totally, the development of legislative approaches to validating surrogate birth contracts, this essay suggests that the courts seek a reasonable balance of competing interests in determining where the best interests of issue born of these contracts truly lie. Thus, the goals of equity rather than contract law should be pivotal in guiding judicial decision making.

Developmental psychology and family law: A discussion paper

Abstract: The starting point of this paper is developmental psychologists' lack of interest in family law, and the small use that is made of psychological work in judicial decision making about parents and children. The particular concern here is decisions related to children at divorce, the commonest situation where the law is involved with parent-child relationships. The paper describes previous studies of judicial decision making in relation to children and points to some of their weaknesses. In considering the lack of psychological work on the topic, a number of contributory reasons are discussed. In particular, it is argued that our approach to parent-child relationships has concentrated on the dyad rather than on the network of family relations which has made it difficult to study changes in family form such as that which follows divorce. It is suggested that both the recent increase in the divorce rate and changing theoretical approaches to parent-child relationships should increase the attention given by psychologists to legal processes.

A critique of interpretivism and its claimed influence upon judicial decision making

Abstract: Interpretivism is a theory of judicial decision making that holds that modern constitutional adjudication should be grounded upon the values originally incorporated in the Constitution by its drafters. Interpretivists have claimed that the employment of their decision rule promotes judicial neutrality and restrains the Court from engaging in constitutional policymaking. This study empirically examines the interpretivists' approach in an area of law that is very conducive to the achievement of the interpretivists' objectives. Although a single study cannot prove or disprove major tenets of the interpretivist argument, this study's findings nevertheless question whether the claims of the interpretivists are realizable in the modern judicial process.

Rhetoric and Legitimation

Abstract: Despite its control over neither “the sword or the purse,” the United States Supreme Court wields a great deal of power. Through its opinions - its use of language -- the Court has affected areas ranging from the fate of snail darters to the power of the executive branch. Judicial scholars, relying on textual exegesis to understand the judicial process, are recognizing increasingly the value of rhetorical criticism. Marc Gold, for example, has argued; “When conjoined with more traditional forms of analysis, a rhetorical perspective should significantly enhance our understanding of the judicial process.”2 The goal of this paper is to respond to Gold’s challenge by illustrating how rhetorical criticism can unlock legal texts. In particular, the critical objects of this analysis are direct reversals by the Supreme Court. However, before begining this critique, we must first establish what is meant by “rhetoric,” and suggest the value of rhetorical criticism. Next we shall demonstrate that judicial opinions are in fact rhetorical texts and direct reversals uniquely rhetorical moments. Evaluation of West Coast Hotel v. Parrish, an instance in which the Court maintained its legitimacy as “the” interpretor of our law while reversing its own prior decision, closes this analysis.

Who’s Been Sleeping in Your Bed? an Analysis of the Government’s Approach to the Sexual Orientation of its Employees

Abstract: The United States Supreme Court recently granted certiorari in Doe v Casey to consider whether the decision by the Director of the Central Intelligence Agency (CIA) to discharge an employee based solely on sexual orientation is judicially reviewable The discharged employee petitioned to have the court determine whether the employee was entitled to a statement of reasons for the CIA's determination, but certiorari was not granted on that issue Both questions, however, arise out of a broader and more difficult issue: when may the government legally discharge an employee because he or she is a homosexual? This Note reviews the judicial decisions regarding employment terminations of homosexual persons in both private and governmental contexts It then examines rulings of the lower courts in Doe v Casey, a recent case concerning an employee of a government agency dealing with sensitive national security information Finally, it evaluates the existing policy framework that the Supreme Court may use in its upcoming decision

Who’s Been Sleeping in Your Bed? An Analysis of the Government’s Approach to the Sexual Orientation of its Employees

Abstract: The United States Supreme Court recently granted certiorari in Doe v. Casey to consider whether the decision by the Director of the Central Intelligence Agency (CIA) to discharge an employee based solely on sexual orientation is judicially reviewable. The discharged employee petitioned to have the court determine whether the employee was entitled to a statement of reasons for the CIA's determination, but certiorari was not granted on that issue. Both questions, however, arise out of a broader and more difficult issue: when may the government legally discharge an employee because he or she is a homosexual? This Note reviews the judicial decisions regarding employment terminations of homosexual persons in both private and governmental contexts. It then examines rulings of the lower courts in Doe v. Casey, a recent case concerning an employee of a government agency dealing with sensitive national security information. Finally, it evaluates the existing policy framework that the Supreme Court may use in its upcoming decision.