Showing papers on "Judicial opinion published in 1991"

The Elements of Legal Style

Abstract: Focusing on the argumentative, narrative, and descriptive style found in legal briefs and judicial opinions, The Elements of Legal Style (second edition) will be a thought provoking examination of effective argumentation in law.

Private International Trade in the Shadow of the Territoriality of Law: Why Does It Work?

Abstract: The theory of international trade is dominated by a model presupposing a legal order that is perfect in its specifications and controllability, binding for all economic agents, no matter their nationality. World order appears to be cosmopolitan, as defined by Kant [20]. An international private law community such as this, however, does not exist. In fact, there is a territoriality of law, leading to problems largely neglected in the traditional theory of international trade. They are at the heart of what we would like to call the New Institutional Economics of International Transactions (NIEIT) [29; 30; 31; 32; 33]. These problems can best be described in the terminology of property-rights analysis. Economic transactions consist of an exchange of property rights, that is, of "sanctioned behavioural relations" [13, 1139]. While for domestic trade the legal foundation and its enforcement through the "protective state" [7, 68, 85] are unequivocal, international transactions touch a multitude of legal systems and the monopoly of power claimed by each state within its boundaries. Collisions of norms and gaps between different norm systems then appear. An accord in judicial decisions is often coincidental, and the assistance of the judicial and penal institutions in foreign countries is not at all a matter of course. Thus, because of the absence of a world state, the property rights of economic agents involved in private international trade are often incompatibly defined and insufficiently protected. Consequently, the territoriality of law results in a specifically high amount of uncertainty that we call the constitutional uncertainty in international trade. For agents involved in foreign trade this kind of uncertainty poses coordination problems of a special type. They are reflected in transaction costs, i.e., the costs of coordinating the economic activities among individuals. Consider the following examples [33, 27; 30, 50]: In the year 360 B.C.-as is reported by the Greek author Demosthenes-Zenothemis and the shipowner Hegestratos convinced traders of Syracuse to advance money to them upon declaring untruthfully that their vessel was fully laden with corn belonging to them. The two swindlers sent the money to Massalia, and three days after sailing, Hegestratos tried to scuttle the vessel in order to circumvent the repayment of the credit. But the passengers were alert, and the scuttling attempt failed. Nevertheless, we have reason to believe that the Syracusian traders never saw their money again [19, 4].

Court Management of AIDS Disputes: A Sociolegal Analysis

Abstract: Historically, disease scares reveal contradictions in the social order. We postulate that courts focus on depoliticizing social tensions revealed by AIDS, legitimating the routines of dominant parties in the AIDS sociolegal network. At the same time, courts deviate from their normal practices try upholding the claims of subordinate parties in this network, particularly people living with AIDS (PWAs) and their allies. Our analysis of 36 AlDS-related court rulings, published during the formative years of AIDS litigation in the United States, supports the notion that courts operate as “double-edged” institutions. To explain the duality of judicial decision making, we concentrate on the powers of social and cultural factors rather than on the doctrinal judgments of the courts. We trace how relational attributes, evident in contestants' characteristics (e.g., plaintiff/defendant, status differentials) and the nature of claims (i.e., restrictive/expansive), combine to account for wins for dominant parties and how other combinations of these attributes define wins for subordinate parties. We also show how judges combine specific interpretational attributes in the text of their rulings (e.g., use of divisive AIDS metaphors, deference to medical authority) to justify wins. We consolidate these findings to discuss how PWAs and their allies might use the courts to their advantage and point out the ways in which the changing epidemiology of AIDS in the United States limits the use of courts.

“REVERSE DISCRIMINATION” CASES IN THE FEDERAL COURTS: Legal Mobilization by a Countermovement

Abstract: This article argues that those opposing affirmative action and reverse discrimination constitute a countermovement, working against the social movement for equal employment opportunity (EEO). Like women and minorities promoting EEO, opponents of reverse discrimination utilize litigation as a social movement tactic, mobilizing federal EEO laws. This study analyzes judicial decisions in EEO reverse discrimination cases between 1965 and 1985 to test four hypotheses about countermovement legal mobilization: that (1) many cases reach court, (2) plaintiffs are highly organized, (3) organization relates to success in court, (4) and plaintiffs win. Contrary to expectations, few reverse discrimination cases occur, and plaintiffs are not well-organized and usually lose; better-organized plaintiffs meet more success but there are few of them. The cases provide little evidence that reverse discrimination is widespread.

Jerome Frank and the Legacy of Legal Realism

Abstract: It is a rather sad fact that jurisprudence, for those who follow the subject, has always been a name-game. Mention a movement positivism, utilitarianism, Scandinavian realism, whatever and, more often than not, certain core representatives of that movement can, as if automatically, be summoned to mind. In Britain, the core representatives of the movement which we call American legal realism are commonly considered to be Karl Llewellyn and Jerome Frank. Llewellyn's work has without doubt made its mark on British legal scholarship.1 To assert the same of Frank, however, would be rather more contentious. From his first formal introduction into British jurisprudence, Frank was characterized as the prime representative of the radical tendency in American legal realism the realist who turned his back on legal rules and declared them to be well nigh valueless.2 This characterization became official, as it were, with the publication of Hart's The Concept of Law in 1961. Distinguishing formalism and realist rule-scepticism, Hart criticizes the rule-sceptics for focusing only on the function of rules in judicial decisions and ignoring those secondary rules which confer judicial and legislative power.3 Hart considered Frank's work to be illustrative of the sceptical tradition in American legal realism,4 though Frank himself distinguished scepticism as to rules and scepticism as to facts, declaring himselfas we shall see to be a factsceptic. An unfortunate consequence of Hart's formalism-scepticism distinction, and his citation of Frank as an exemplary sceptic, I would argue, is that Frank's jurisprudence has come primarily to be conceived as a critical

Judicial Activism in England

Abstract: ‘Judicial activism’ is a term that sits uncomfortably with English constitutional theory, political culture, and with the judges themselves.1 Yet, it is now applied regularly to the behavior of English judges. John Griffith refers to ‘a period of judicial activism or intervention which began in the early 1960s and has been growing in strength ever since.2 While discussing the evolving law of public duties A. J. Harding stressed the importance of ‘the winds of the new judicial activism.’3 Even a senior British judge offered the following assessment in 1985: ‘Today it is perhaps commonplace to observe that as a result of a series of judicial decisions since about 1950 … there has been a dramatic and indeed a radical change … That change has been described — by no means critically — as an upsurge of judicial activism.’4

Advance Directives Under State Law and Judicial Decisions

Abstract: Three years ago I first surveyed state court decisions and laws governing the withholding or withdrawal of medical treatment.l The decision of the United States Supreme Court in Cruzan v. Director, Missouri Department of Health2 on June 25, 1990, makes it timely to review again state law developments because a majority of the Court announced in Cruzan that it will leave to the states the question of what legal requirements may be imposed on decisions to discontinue treatment for incompetent patients.3 Justice Rehnquist, writing for the majority, explained that the Court’s deference to state decisionmaking is grounded in the fact that “state courts have available to them for decision a number of sources-state constitution, statutes, and common law-which are not available to US.\"^ Although the opinion makes clear that Missouri might have authorized the family of Nancy Cruzan to decide to terminate medical treatment for her, a majority of the Supreme Court refrained from holding that Missouri is constitutionally required to do so. Missouri and all other states are thus free to impose a requirement that treatment cannot be withdrawn in the absence of “clear and convincing” evidence of the patient’s wishes. Nancy Cruzan, the young woman at the center of the Supreme Court case, lost control of the car she was drivingone night in 1983 in Jasper County,Missouri. She was discovered lying face down in a ditch without detectable cardiac or respiratory function. Permanent brain damage generally results after six minutes without oxygen.5 It was estimated that Cruzan was deprived of oxygen for 12 to 18 minutes. Ultimately, she was diagnosed to be in a persistent vegetative state.6 Although a state trial court approved the request of the Cruzan family to terminate her artificial hydration and nutrition, the Supreme Court of Missouri by a divided vote reversed that decision. The trial court found that Cruzan’s “expressed thoughts at age twenty-five in a somewhat serious conversation with a housemate friend that if sick or injured she would not wish to continue her life unless she could live at least halfway normally suggests that given her present condition she would not wish to continue on with her nutrition and hydration.”’ By contrast, the Missouri Supreme Court found the roommate’s statement to be “unreliable for the purpose of determining [Cruzan’s] intent” and held that her family was not entitled to direct the termination of her treatment in the absence of a living will o r “clear and convincing, inherently reliable evidence absent here.”* Justice Scalia both joined the majority opinion and wrote a separate concurrence in which he praised states for beginning to grapple with the issue of terminating medical treatment through legislation. He also warned the other justices of the Supreme Court against confusing that effort “as successfully as we have confused the enterprise of legislating concerning abortion-requiring it to be conducted against a background of federal constitutional imperatives that are unknown because they are being newly crafted from Term to Term.’’9 Five justices thus have made clear that this area is not to be constitutionalized. Like some limitations on abortion after Webster’slo modification of Roe v. Wude,ll decisions concerning withholding or withdrawing lifesaving treatment are to be left to individual states for resolution. There was one point of exception to the majority consensus in Cruzan on deference to the states. Justice O’Connor, one of the five, in a separate concurrence stated that states “may” be constitutionally required to give effect to the decisions of a surrogate decisionmaker.l2 Justice Souter’s views on this matter, as on most, are not known. It is thus not clear whether the Court has a majority of justices who would support

Adjudication supervision and judicial independence in the P.R.C.

Abstract: The role of judicial independence and the way in which judges actually decide cases are central in the understanding of any legal system. The concept is that judges should decide cases according to enacted law, and free from outside interference. China has, in recent years, given renewed attention to the issue of judicial independence.' Around 1978, under the leadership of Deng Xiaoping, the P.R.C. government began a period of reform and reinstituted its judicial system, which was dismantled during the Cultural Revolution.2 The new legal system claimed to ensure for the courts freedom from interference in their work. The 1982 P.R.C. Constitution provided that the people's courts shall "exercise judicial power independently, in accordance with the provisions of the law.. . "3 The Organic Law of People's Courts similarly proclaimed a guarantee of judicial independence,4 and to protect the integrity of a judicial decision, provided for the rendering of final judgments after one appeal.5 The

Law and the language of community: On the contributions of James Boyd white

Abstract: This essay examines James Boyd White's analysis of legal discourse from the perspective of a legal and cultural critic. We commend his observation that jurists have done a poor job of communicating their decisions to both legal practitioners and the public community. We ask, however, how his art of translation as constitutes ethical and political communities enabling writers and readers of what White characterizes as law's most central text, the judicial opinion, to participate more constructively in the creation of "a world of meaning." We have focused our analysis on White's Justice as Translation.' Our focus is appropriate because this essay is the developmental sequel to When Words Lose Their Meaning2 in which White announced his method of rhetorical and cultural criticism. His is a method for analyzing legal texts systematically to illuminate the meaning of justice and injustice "in the relations we establish with our languages and with each other."3 We argue that the forms of discourse addressed to or issued from courts in the United States define a distinct (in White's terms) "culture" of argument. White contributes an approach to this culture which is particularly useful to those extra-legal critics who participate in the construction of the meaning of a judicial opinion through thoughtful reading, but which provides little guidance to those involved in the creation of those texts.4 While we accept that legal discourse is a distinct culture of argument with characteristics in common with other cultures of argument, including literary

EPA and the Courts: Twenty Years of Law and Politics

Abstract: Agency has changed substantially during this period An early mix of enthusiasm for the project of environmental protection, respect for the public policy decisions of the Congress, and a rhetoric of close scrutiny of EPA's decisionmaking processes has given way to neutrality toward environmental values, skepticism about whether environmental legislation expresses coherent public policy, and a rhetoric of deference toward EPA's decisions This shift is apparent in both doctrinal changes and in the language of judicial opinions reviewing EPA decisionmaking It is part of a larger reorientation of the federal courts toward judicial review of agency decisionmaking generally During the period we study, scholarly analyses of aggressive judicial review of agency rulemaking have also moved from agreement with the judiciary's early self-evaluation that "agencies and courts together constitute a 'partnership' in furtherance of the public interest, and are 'collaborative instrumentalities ofjustice,' "' to a more negative appraisal As Peter Strauss has recently observed, "recent scholarship is tending to [view judicial review as] paralyzing" the ability of administrative agencies to carry out their statutory responsibilities, or-what is not always the same thing-to develop sound public policy2

Understanding Supreme Court opinions

Abstract: Introduction 1 The Supreme Court: Policy Maker and Teacher 2 The Constitution in a Nutshell 3 Opinion Writing in the Supreme Court 4 The Legal Materials Used in Building a Constitutional Opinion 5 Tests, or Standards of Review 6 Precedent 7 Strategies of Justification 8 Understanding a Supreme Court Opinion Table of Cases

The judicial role in life-sustaining medical treatment decisions.

Abstract: Although there has been speculation regarding the pervasiveness and nature of judicial decisions regarding life-sustaining medical treatment (LSMT), no attempt has been made to empirically assess their prevalence or the issues they address. An exploratory study utilizing a mail survey of a nationwide random sample (N = 905) of state trial court judges was conducted to provide initial information regarding this decision-making process. Twenty-two percent of the responding judges had heard at least one LSMT case, and judicial review did not appear endemic to particular states. The number of judges hearing LSMT cases dropped from 1975 to 1981 but has increased since then. Three major issues predominate: patient competency, appointment of a surrogate decisionmaker, and resolution of the ultimate issue of forgoing LSMT. Relatively few cases either contested a prior directive's validity or involved imposing sanctions for instituting or forgoing LSMT. Although subject to different interpretations, the results suggest the courts are having a significant impact on certain aspects of the LSMT decision-making process. However, the infrequency with which any one judge is called upon to make an LSMT decision causes concern about the judiciary's ability to respond in a timely and appropriate manner. With their potential for a profound effect on the actions of health care providers, greater attention to this decision-making process is warranted.

Participation through Mobilization of the Law: Institutions Providing Indigents with Access to the Civil Courts

Abstract: This article examines the mobilization of law as a method of popular participation in judicial decision making. The author differentiates between reactive and proactive approaches, characterizing the first as participatory and the latter as representative or republican. She explores these modes of legal action in the context of institutions that provide counsel to the poor, searching for a structure that best combines responsiveness to the needs of the poor with planned legal change.

Federal judges' perceptions of social research in judicial decision‐making

Abstract: Social science methods have come to play an ever increasing role in judicial decisions, particularly in civil rights cases. Results of an exploratory survey of the federal judiciary indicated at least two rather remarkable patterns. Although most federal judges thought knowledge of empirical methods could be helpful, they believed that a workable knowledge of such methods was not essential in either judicial rulings or legal education. Such thinking suggests several serious implications for the character and quality of judicial decisions and, as a result, offers students of communication and the law an important opportunity to contibute to the futher study of legal argument.

A Predictive Model of Decision Making in State Supreme Courts:: The School Financing Cases

Abstract: In recent years, numerous state governments have seen their methods of financing public primary and secondary education challenged as unconstitutional. To date, 13 state supreme courts have upheld their financing systems while 11 others have found such methods unconstitutional. This article develops and tests a multivariate model of judicial decision making which attempts to indicate the factors which lead to variation in the decisions on this issue. The analysis indicates the primary importance of the court itself, the relevant constitutional language and the facts surrounding the case.

Contesting the Self: Negotiating Subjectivities in Nineteenth-Century Ontario Defamation Trials

Abstract: Understanding the hegemonic quality of legal discourse requires us to view hegemony as unfolding in multiple sights of discursive practice. Thus, we must begin to analyze not only hegemonic legal discourse but hegemony in social sights of legal practice in order to see that legal practice is essential in processes of domination and social ordering. In this article, I explore the processes of political subjection and resistance as they manifest in witness testimony and judicial decisions from late nineteenth century defamation trials in Ontario. I argue that slander and libel suits were integral in constructing particular legitimate knowledges about class and gender as categories of social identity.

Rethinking Legal Need: The Case of Criminal Justice

Abstract: Part 1 How we think about legal need - introducing the problem of legal need competing professional definitions of need clients and the pragmatics of legal need - Gilbert Smith's case studies re-analyzed what clients do the contribution of other disciplines contemporary philosophy the contribution of other disciplines - social administration Bradshaw's taxonomy of adjectival need - a method for classifying the problem applying Bradsahw's taxonomy to legal need demand side - felt legal need felt need features in criminal justice conclusions on felt need demand side - expressed need supply side - "normative legal need" general conclusions on Bradsaw's need types towards a negative definition of need conclusion testing for the absence of need conclusion. Part 2 Legal need in criminal justice - legal need in criminal justice normative perspectives the perceptions of defendants conclusion appearing in person - self-representation in criminal justice the scale of self-representation by defendants a survey of self-representation characteristics the survey testing negatively for non-need - comparative-consequential need in criminal justice applying comparative-consequential method the impact of representation on sentence a comparative-consequential study of thieves representation, judges and decisions - "inverted legal need" the implications of inverted legal need - the weight of representation in judicial decisions re-thinking legal need - the clinical analogy structural considerations the positive residue of legal need - attempts to transcend the problem of definition consensual need conclusion on referendal approaches further structural considerations.

Comparative Judicial Politics Case Studies of the Federal Republic of Germany and the Republic of India

Abstract: This article is part of an ongoing project of the authors to systematically compare the policy-making influence of courts in nations with disparate political systems, levels of economic development, and legal traditions. Presented herein is a two-nation comparative case study of the policy influence of the highest courts in the Federal Republic of Germany and the Republic of India. The general research strategy begins with the premise that judicial decisions are not self-executing and therefore implementation requires the cooperation of others. Courts are forced to rely on other political actors to translate policy decisions into action. From this premise the authors reason that the degree of judicial influence in the policy process of any nation can be roughly gauged by examining the reaction of other actors who, as part of the political environment, are themselves subject to a wide range of political pressures. Using the judicial impact model of Charles A. Johnson, the authors analyze the impact of the ...

An Excursion into the Uncharted Waters of the Seventeenth Amendment

Abstract: The Seventeenth Amendment mandates that Senators shall be "elected by the people." In the event that a Senate vacancy occurs, the Seventeenth Amendment allows a state's legislature to "empower the executive [of the State] to make temporary appointments until the people fill the vacancies by election as the legislature may direct." In this Article, Professor Laura Little analyzes the Third Circuit's opinion in Trinsey v. Pennsylvania, a case that arose in the aftermath of Senator John Heinz's 1991 death, and addressed the constitutionality of Pennsylvania's temporary appointment statute.The issue in Trinsey was whether the Seventeenth Amendment allows a state to forego a primary election in choosing candidates to fill the Senate vacancy, instead empowering political party committees to select the candidates, which is what title 25, section 2776 of the Pennsylvania Statutes provides for. Reversing the trial court's determination that section 2776 was unconstitutional, the Third Circuit held that the Seventeenth Amendment did not require a state to hold primary elections when filling Senate vacancies. Professor Little criticizes the Trinsey opinion for its failure to address arguments and concerns on both sides of the issue, thereby passing up an opportunity to provide much-needed guidance on the Amendment's meaning. In her own analysis, Professor Little notes that the Trinsey opinion fails to take into consideration many factors such as the importance of primary elections in Pennsylvania's political process, the specific evils that the Seventeenth Amendment as a whole was meant to cure through requiring more democratic procedures for electing state senators, and the resemblance of section 2776's procedures with the same procedures that Congress rejected through the Seventeenth Amendment. Although Professor Little concedes that exigency may have required the one-sided approach to the issue, she expresses particular concern that given the dearth of judicial precedent dealing with the Seventeenth Amendment, the Trinsey opinion will end up creating substantial uncertainty and confusion for lower courts and future litigants who are unable to discern the limits of the decision. Professor Little thus ends the article with a general jurisprudential discussion of the importance of candor in judicial decisions.

Goldstein on Copyright Law: A Realist’s Approach to a Technological Age

Abstract: The treatise writer's dilemma is that while reliability requires faithful interpretation of the law as it stands, he or she must also remain sufficiently detached and forward-looking to assist decisionmakers in shaping the law as it ought to be The better treatise writers resolve this tension by devising jurisprudential and methodological approaches that broaden the horizons of experienced practitioners in the field Paul Goldstein's Copyright: Principles, Law and Practice fits this mold His ability to use economic analysis to illuminate discrepancies between judicial decisions and legal doctrines distinguishes this major new treatise from other useful commentaries in the field2 Professor Goldstein's treatise arrives at a time when economic and inter-

Marxist Jurisprudence: Historical Necessity and Radical Contingency

Abstract: Rather than advancing a refined theory of judicial decision making or puzzling over the nature of law, Marxist jurisprudence offers a critique of liberalcapitalist conceptions of law. As part of its general undermining of bourgeois consciousness, Marxism aspires to manifest the legitimating functions of law as a contributor to ideological distortion and as a solidifier of the political status quo. Accordingly, there is not so much a Marxist theory of law as there is a Marxist unmasking of law’s alleged unsavoury participation in domination and oppression.

Financial incentives for surrogacy.

Abstract: T he Ethics Committee of the American College of Obstetricians and Gynecologists (ACOG), in their statement Ethical Issues in Surrogate Motherhood, a challenges the enforceability of surrogacy contracts, recommending ' . . . a specified period of time after birth during which the surrogate mother is free to depart from the preconception agreement and retain custody of the child." This opinion is in keeping with the New Jersey Supreme Court decision in Baby M affirming the right of a mother to change her mind about relinquishment after the birth of a baby, 2 a judicial opinion consistent with adoption laws in every state. Such positions recognize the difficulty of anyone, man or woman, to anticipate with certainty how they will feel after the birth of a baby. This is not a reflection on the fickleness of men or women. Rather it reflects an awareness of the profound and transformative nature of birth and parenthood, and the changes that usually occur when men or women suddenly find themselves parents. For both men and women, planned relinquishment may feel more like abandonment, and the depth of their sense of parental commitment may supercede promises made to others. Mary Beth Whitehead, trying to explain herself to the experts, said "I need my baby and my baby needs me. ''3 The ACOG committee, in supporting a fee to the surrogate mother, stops short of challenging the commercial practice of surrogacy altogether, a decision that warrants further reconsideration. The New Jersey Supreme Court was of the opinion in Baby M that surrogacy is "baby-bartering ''4 and stated "This is the sale of a child, or, at the very least, the sale of a mother's right to her child . . . . ,,5 Although some surrogacy contracts may require a fee be paid even if the baby dies, that loss is rare and does not change the nature of the agreement. The ACOG committee advises that "compensation should not be based on a successful delivery or on the health status of the child." The committee does not say "compensation should not be based on whether the mother decides to relinquish the child," because the bottom line of surrogacy is the purchase and sale of a child. Surrogacy, like prostitution, allows for the use of a woman's reproductive function for the pleasure of others. Although it is voluntary, it is also coercive. Prostitutes may defend the legitimacy of their profession and struggle to maintain self-esteem in the situation, but few would want their daughters to follow them. Even fewer of their "customers" would want their own daughters to become prostitutes. We should not romanticize the options © 1991 by The Jacobs Institute of Women's Health 1049-3867/91/$3.50

Argumentation in international law

Abstract: Modem international law was founded on a persuasive argument: Grotius' reasoning that agreements between States were analogous to agreements in private law. The development of international law continues to depend on techniques of argumentation in many contexts - in the work of the Legal Adviser to national governments finding justifications for State action as witnessed in the arguments of States during the tense period leading to military action against Iraq. Legal advisers use a range of arguments, arguments of analogy, sacrifice, continuity and authority as well as pragmatic and consequential arguments. In the negotiation of international treaties States often appeal to consequential arguments, e.g., the constitutional difficulty (or impossibility) of accepting a certain provision and hence the inevitability of their non-participation if the provision isnot changed. In the interpretation of treaties many rhetorical skills are called on: to flesh out vague terms or deal with ambiguities, and the use of multiple authentic languages opens up a wide are for the use of persuasive techniques as to which of the many nuances of the several languages involved should be adopted. Furthermore, international law has heavily depended on the development of juristic doctrine by scholars, and their works are full of examples of rhetorical reasoning, as are the judgements of international tribunals. Some examples are drawn from the decisions of the International Court of Justice: theargumentum ad hominem, the argument of the absurd, the argument contrasting the real and the ideal, the argument as to consequenses, the argument a fortiori. Evident also in international judicial opinions is that hallmark of non-stringent reasoning, the awareness and carefull cultivation of the audience. International lawyers, like jurists in other systems of law, depend greatly on the techniques of reasoned persuasion, and the forms of strict logic play a minor part in the justifications of their decisions. The need for flexibility in reasoning techniques has been clearly expressed in a recent decision of the International Court of Justice.

Changing Needs for Judicial Decision-Making

Abstract: This paper discusses the problems in ensuring effective decision-making by judges in cases where the legal answer is not clear cut. This is especially the case where judges need to resolve conflicts between competing societal values. The paper examines the difficulties that arise when judges are required to reassess the values underlying legal principles in response to changes in thinking. Effective decision-making will also depend on the judge being able to assess the economic, social or administrative implications of a decision. This requires all relevant material to be put before a judge. The paper concludes that formal judicial educational programmes are the best way to ensure that judges are aware of changes in the societal and economical values and perspectives that must inform their decisions.

Argumentation in Miranda v. Arizona

Abstract: This essay investigates the argumentation advanced in briefs, oral arguments, and the Court's opinion in the Supreme Court case of Miranda v. Arizona, an extremely important case in American constitutional law. The background of the case—including Escobedo v. Illinois—is considered first, followed by analysis of argumentation on granting certiorari, on Escobedo, and on balancing conflicting interests. In many places in its opinion, the Supreme Court adopts claims and arguments from the briefs of the winning side, suggesting that these arguments either influenced the Court's decision or provided a socially acceptable rationale for their decision. The evaluation of the competing arguments suggests that, in general, the arguments of the petitioner (Miranda) were superior to those of the respondent. This illustrates the importance of viewing the Supreme Court as an active participant in the decision‐making process.