Showing papers on "Judicial opinion published in 1992"

On the nature of supreme court decision making

Abstract: How does the U.S. Supreme Court reach decisions? Since the 1940s, scholars have focused on two distinct explanations. The legal model suggests that the rule of law (stare decisis) is the key determinant. The extralegal model posits that an array of sociological, psychological, and political factors produce judicial outcomes. To determine which model better accounted for judicial decisions, we used Supreme Court cases involving the imposition of the death penalty since 1972 and estimated and evaluated the models' success in accounting for decisional outcomes. Although both models performed quite satisfactorily, they possessed disturbing weaknesses. The legal perspective overpredicted liberal outcomes, the extralegal model conservative ones. Given these results, we tested another proposition, namely that extralegal and legal frameworks present codependent, not mutually exclusive, explanations of decision making. Based on these results, we offer an integrated model of Supreme Court decision making that contemplates a range of political and environmental forces and doctrinal constraints.

Toward an Integrated Model of Judicial Voting Behavior

Abstract: This article is an initial step toward the development of an integrated model of judicial decision making. The study synthesizes elements derived from contextual and attitudinal perspectives by app...

Child Welfare Law, "Best Interests of the Child" Ideology, and First Nations

Abstract: Liberalism has structured legal discourse such that racism is most often unintended and rarely explicit. To understand how and why law has an oppressive and discriminatory impact on First Nations and other racialized groups in Canadian society, one must look at some of its more subtle processes and, in particular, its ideological form. The goal of this article is to provide insight into the origins and operation of "best interests of the child" ideology and to illustrate how it structures and constrains judicial decision making in the context of First Nations child welfare. Best interests ideology serves to portray the apprehension and placement of First Nations children away from their families and communities as natural, necessary, and legitimate, rather than coercive and destructive. This is accomplished, in part, through legal processes that appear to be universal and neutral, and to protect children and serve their best interests. As well, the relevance and importance of a First Nations child maintaining her First Nations identity and culture is minimized. After illustrating the difficulty involved in transforming ideology through law reform, the article concludes by suggesting that First Nations must be empowered to develop their own child welfare services outside the framework of existing provincial legislative schemes and in line with more general goals of self-government. This article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol30/iss2/4 CHILD WELFARE LAW, "BEST INTERESTS OF THE CHILD" IDEOLOGY, AND FIRST NATIONS©

On Judicial Review in Islamic Law

Abstract: Classical Islamic law apparently constitutes an exception to the finding that legal systems in complex societies invariably possess hierarchical appellate structures. The prevailing wisdom among Islamicists for over a half-century has asserted that there are no appellate structures in Islamic law, that the decision of a judge is final and irrevocable, and that a judgment may not be reversed under any circumstances. The exceptional nature of Islamic law has been explained by Martin Shapiro as a function of the absence of hierarchy in the Islamic religious community. In this article, I argue that Shapiro has been poorly served by Islamicist scholarship. On the basis of a reexamination of Islamic legal theory and an analysis of 14th-century Islamic court practice, I demonstrate that a judicial decision was reversible by the issuing judge himself, albeit under limited and precisely defined conditions; that hierarchical organization was a regular feature of Muslim polities; that the court of the chiefjudge of the capital city served as a court of review for the decisions of local judges; and that Islamic law also developed a unique, nonhierarchical system of successor review. My conclusions will be of interest both to Islamicists and to social scientists who study the relationship between judicial institutions and social organization.

Public opinion and congressional representation

Abstract: The political views of citizens should be reflected in the government of a democratic society. Typically, citizens' views are expressed by their elected representatives. We used the Center for Political Studies (CPS) 1986 National Election Study and a mail survey of the U.S. House of Representatives to look at representation collectively and dyadically. Collectively, we find some degree of congruence between leaders and followers. However, there are significant differences between them on half of the issue items, with the leaders usually taking more extreme positions than the followers. We looked at leaders and followers dyadically in 33 districts using Achen's measures of representation. We found that the representatives' views are fairly close to those of their constituents, that representatives are efficient at positioning themselves at the mean constituent position, and that representatives respond to shifts in liberalism/ conservatism in their districts. Legislative representation has been the topic of numerous political debates. One controversy centers on the role of the legislator in relation to his or her constituency. Are legislators free to act as they please? Should they use their own judgment to do what is best for their constituents? Or are representatives, by definition, required to reflect accurately the opinions of their constituents? We respond "no" Public Opinion Quarterly Volume 56:185-205 ? 1992 by the American Association for Public Opinion Research All nghts reserved. 0033-362X/92/5602-0001$02.50 CHERYL LYN HERRERA is a Ph.D. candidate in political science at the University of California, Santa Barbara. RICHARD HERRERA is assistant professor of political science at Arizona State University. ERIC R. A. N. SMITH is associate professor of political science at the University of California, Santa Barbara. We would like to thank Richard Brody, John Geer, Kim F. Kahn, John Kessel, Patrick Kenney, Warren Miller, and two anonymous reviewers for their helpful comments on previous drafts of this article. An earlier version of this article was presented at the 1988 Western Political Science Association meeting in San Francisco. Some of the data used in this paper were made available by the Inter-University Consortium for Political and Social Research. We bear sole responsibility for the analyses and interpretations presented here. This content downloaded from 207.46.13.33 on Sat, 26 Nov 2016 04:22:08 UTC All use subject to http://about.jstor.org/terms 186 Herrera, Herrera, and Smith to the first question and argue that legislators should use their own judgment as well as reflect public interest and opinion. This is consistent with Pitkin's definition of political representation, which includes the idea that legislators should act in the interest of those represented and that "they should look after the public interest and be responsive to public opinion, except insofar as non-responsiveness can be justified in terms of the public interest" (Pitkin 1967, p. 224). In democracies, citizens' views are expressed by their elected representatives. Thus, most empirical studies of representation focus on the extent of agreement between political leaders and the mass public. Agreement between legislators and the public can be conceived of collectively or dyadically (Weissberg 1978). Collective representation refers to a collective body representing a people, while dyadic representation refers to a particular legislator and the constituency that elected that legislator. We shall employ both dyadic and collective measures of representation in order to provide as much information about the representativeness of members of Congress as possible. We use the opinions of the members of the U.S. House of Representatives, rather than the rollcall votes, because we believe that representatives' opinions serve as proxies for their behavior. Studies show a high correlation between congressional attitudes and roll-call behavior (Smith, Herrera, and Herrera 1990; Sullivan and O'Connor 1972). In addition, "congressional attitudes are important in their own right, functioning in the long gestation period before roll-calls, setting the agenda, and framing the specific questions to be decided by a roll-call" (Backstrom 1977, p. 412).

An Integrated Case-Related Model of Judicial Decision Making: Explaining State Supreme Court Decisions in Judicial Review Cases

Abstract: Employing data from more than three thousand state supreme court judicial review cases, I construct and test an integrated case-related model of judicial decision making. Logit analysis reveals that the type of issue raised, the identity of the challenging party, the constitutional arguments advanced, the centrality of the constitutional challenge, and the lower court ruling on constitutionality all have an independent impact on state supreme court decisions in judicial review cases. The findings clearly provide support for the notion that more complex theoretical and methodological approaches provide a more complete explanation of judicial decision making.

An archival study of decision-making in child custody disputes

Abstract: Investigation files and court records of 282 disputed child-custody cases (San Diego, 1982) were coded and analyzed to determine predictors of judicial decision. Log-linear analysis of physical custody decisions as a function of factors contained in the files suggested that three categories of factors (mother, father, and child) were linked causally to a counselor's recommendation, which was linked subsequently to the judge's decision. Judicial decisions could be predicted accurately by a model that took very few factors into account. Only two factors directly affected the judge; counselor's recommendation and child preference. The major factor that influenced decisions was counselor recommendation (60% of the cases); cases that lacked this recommendation were predicted by an inferential measure of the child's preference (15% of the cases).

Metaphor and reason in judicial opinions

Abstract: To the public, judges handing down judicial decisions present arguments arrived through rational discourse and literal language. Yet, as Judge Richard Posner has pointed out, "Rhetorical power counts for a lot in law. Science, not to mention everyday thought, is influenced by metaphors. Why shouldn t law be?" Haig Bosmajian examines the crucial role of the tropemetaphors, personifications, metonymiesin argumentation and reveals the surprisingly important place that figurative, nonliteral language holds in judicial decision making.Focusing on the specific genre of the legal opinion, Professor Bosmajian discusses the question of why we have judicial opinions at all and the importance of style in them. He then looks at specific well-known figures of speech such as "the wall of separation" between church and state, justice personified as a female, or the Constitution as "colorblind," explaining why they are not straightforward statements of legal fact but examples of the ways tropes are used in legal language.A useful example can be found in Judge Learned Hand s response to a 1943 case involving news gathering and monopoly. Hand found the need to protect the public s right to the "dissemination of news from as many different sources, and with as many different facets and colors possible," an interest "closely akin to, if indeed it is not the same as, the interest protected by the First Amendment; it presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and always will be folly; but we have staken upon it our all.""

The Law Is a Good Thing (Psychology Is, Too) Human Rights in Psychological Jurisprudence*

Abstract: Psycholegal studies have been hampered by the lack of a theory to guide the choice of topics for research. Both judicial decision making and psychological research would be enhanced by emphasis on subjective experience in determining the scope of fundamental rights and fostering a legal system consonant with human dignity and responsive to social reality. International human rights law is presented as an example of the feasibility and utility of psychological jurisprudence.

The retreat from Gillick.

Abstract: given the atmosphere of judicial restraint prevailing in such leading cases as Tai Hing and also, as Stuart-Smith LJ expressly recognised, given the particular controversy and complexity of the issues of NHS capacity and funding. However, in response to the insistence that the policy issue is not justiciable, one might be permitted the remark that a judicial decision that junior doctors cannot be required to work 'unreasonable' hours is likely to have the same disruptive effect on the NHS, whether it is reached on the basis of 'public policy or an imaginative use of implied terms.

The politics of abortion.

Abstract: This is a story about two constitutions which have each tried (disastrously) to 'solve' the abortion 'problem'. It is about two cultures, Irish and American, which have sought to avoid difficult moral choices by handing over responsibility for them to the judges. It is about the untrappable nature of words and about the risks that flow from trying to tie down phrases like 'human rights' and 'the right to life'. It is about the dangers inherent in even liberal judicial decisions in countries with written constitutions and so-called 'bills of rights'. Above all, it is about the women who are at the present time, and in their thousands, the victims of the politics of abortion. Their fight for freedom of choice has been opposed with gusto by the religious partisans who have found in the abortion issue their chief battleground for a last great stand against secularism.

Rape trauma syndrome: A review of case law and psychological research.

Abstract: This article analyzes recent case law on the admissibility of rape trauma syndrome evidence. Because many rulings on the admissibility of this evidence have been based on judicial assumptions about human behavior, rather than on scientific evidence, we next describe psychological research relevant to concerns raised about its scientific reliability, helpfulness, and prejudicial impact. Following this review, we evaluate both the expert testimony provided and the judicial decisions in recent cases in light of current research. Finally, we provide suggestions for future psychological research that could 1 inform discussions of the admissiblity of rape trauma syndrome evidence.

The protection of minorities and human rights

Abstract: Articles: Conceptual Problems of Rights of Minorities. General Problems of Rights of Minorities. Specific Problems of Minorities. Notes. Book Reviews. Judicial Decisions. Index of Cases. Name Index. Subject Index.

Comparative judicial review and public policy

Abstract: Comparative Judicial Review and Public Policy Comparative Judicial Review and Public Policy: Concepts and Overview by C Neal Tate Establishing Judicial Review as a Policy Tool Documenting the Establishment of Judicial Review: Japan and the United States by David J Danelski The Growth of Canadian Judicial Review and the Commonwealth and American Experiences by Peter H Russell Abstract Constitutional Review and Policy Making in Western Europe by Alec Stone Establishing and Exercising Judicial Review in the Soviet Union: The Beginnings by William Kitchin Judicial Review and Its Policy Impacts Social Action Litigation in India: The Operation and Limits of the World's Most Active Judiciary by Carl Baar Judicial Review and Public Policy in Italy: American Roots and the Italian Hybrid by Mary L Volcansek Temerity and Timidity in the Exercise of Judicial Review in the Philippine Supreme Court by C Neal Tate Judicial Review and the Rule of Law: Comparing the United States and Sweden by Nils Stjernquist The Incidence and Effect of Judicial Review: Procedures Against Central Government in the United Kingdom by Maurice Sunkin Judicial Review and Israel's Struggle for a Written Constitution by Martin Edelman Logic and the Exercise of Judicial Review in Policy Making Original Intent, Strict Construction, and Judicial Review: A Framework for Comparative Analysis by Donald W Jackson Selected Bibliography on Comparative Judicial Review Index

When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions

Abstract: When the Supreme Court decides a case, the Federal District Courts and Circuit Courts of Appeals are responsible for finding the governing rules of law in that decision. The first lower court to deal with the issue often \"defines\" the holding of the case by reviewing the reasoning found in the Supreme Court's opinion. Other lower courts then rely largely on this interpretation. Plurality decisions' greatly complicate this process because lower courts not only have to find the rationale of each opinion, but must also decide which opinion's rationale governs. With all these choices, it is not surprising that plurality decisions often do \"more to confuse the current state of the law than to clarify it.\" 2

CEO Must Weigh Legal and Public Relations Approaches

Abstract: With growing frequency, people or businesses faced with a crisis find themselves turning to two consultants: lawyers and those engaged in public relations. The potential for a serious problem arises, however, because these two consultants bring different approaches to the problems which the decision-maker or crisis management team will face. The often competing and adversarial approaches to problem solving used by public relations professionals and lawyers can have a paralyzing effect on the decision-making process. The decision-maker must balance the legal and public relations concerns during a crisis. If used properly, these two consultants can play significant roles in helping an organization survive a crisis. It is strongly recommended that when faced with a crisis in which legal issues may play a role, however remote, the decision-maker should bring a lawyer onto the crisis management team. This does not mean just any lawyer, but one experienced in dealing with questions laced with public relations concerns. Some examples of these types of issues are any major land use or development debates, municipal or private labor negotiations, and political referenda where both proponents and opponents may have to analyze the possibility of legal action. Lawyers focus on litigation To balance legal and public relations concerns, it is essential to understand why lawyers and public relations consultants so often have different views of the proper approach to a problem. The most volatile, and potentially most dangerous area of the law with which a decision-maker can become involved is litigation. A good lawyer always considers the threat or existence of a lawsuit. Much of a lawyer's advice is designed to avoid litigation, position the client for the strongest litigation posture possible if a lawsuit is to commence, or to tightly control events after a lawsuit has begun. Since the law is not static but can be applied differently in the face of changing facts, the facts of particular matter become critically important. Legal results vary depending on the facts of each case. Facts, for the most part, are created by spoken or written words. Therefore, the last thing that an attorney wants to do is to lose control of the words that are used as litigation threatens or explodes. That's why the attorney will often insist that his client remain publicly silent in a crisis. Words are to be used only in the controlled environment of the litigation procedure. From the attorney's point of view, if the case is won, it does not matter what the public thinks. In reality, this may or may not be so. It is this uncertainty which is dangerous to those managing a crisis. Court of public opinion is key The public relations practitioner, on the other hand, is trained to publicly persuade the undecided, to publicly shake the resolve of the opposition and to educate the public with words. Litigation is, at best, an annoying distraction. At worst, it is a curse conjured by the "evil sorcerers of the bar." From the public relations consultant's point of view, if the public is persuaded of the rightness of the decision-maker's goals, the power of public opinion will pull all else with it -- including the courts of both public and judicial opinion. However, this too may or may not be so. And again, it is this uncertainty which is dangerous to the crisis management team. Tension blooms over words It is in words and their application that the inherent tension between lawyers and public relations consultants is expressed. Every word used to persuade the public is a word which may be used to persuade a judge. The conclusions reached by both, and hence the consequences, may be very different. While it is rare to find a public relations consultant trained in the law, it is no less rare to find an attorney who is able to combine his knowledge of the law with the sensitivity to understand public opinion. …

Politics and the Courts: Toward a General Theory of Public Law

Abstract: Preface Introduction Political versus Contextual Variables--or Do Law and Facts Count? Why Judges Are Not Constrained by Laws and Facts When Do Political Factors Affect Judicial Decision Making? Contextual Variables: Region Judicial versus Administrative Decision Making Comparing Judicial and Administrative Decision Making A Synthesis and a General Model New Approaches: Combining Public Law with Pluralism and Theories about Social Movements Social Movements and Public Interest Litigation Groups Bibliography Index

Guidelines for state court decision making in life-sustaining medical treatment cases.

Abstract: Need for and Inception of Project Only twenty-five years ago, a decision regarding life-sustaining medical treatment (hereinafter LSMT) (2) was the exclusive province of the patient, (3) the patient's family, and the treating physician This began to change when the New Jersey Supreme Court handed down the first judicial "right-to-die" opinion in 1976, in the well-known case of Karen Ann Quinlan (4) The extensive publicity attendant upon this and ensuing cases has sometimes made it seem that the courts have become the primary decision makers in such matters A series of appellate court opinions have been issued, (5) generally preceded by great anticipation and followed by close review and scrutiny When the US Supreme Court issued its opinion in Cruzan v Director, Missouri Department of Health, (6) this growing national attention to judicial opinions regarding LSMT reached new heights (7) Ironically, during this same time, many courts issuing such opinions took great pains to limit the role of the judiciary in making LSMT decisions and explain why they felt a greater role for the judiciary was inappropriate In general, they argued that LSMT decisions are inherently private medical decisions and are best resolved through discussions among the treating physician, the patient, and the family and friends of the patient (8) Typically, these courts considered judicial intervention appropriate only as a matter of last resort when there are irreconcilable differences between the decisionmakers However, little is known about the role of the courts in the LSMT decision-making process Limited insight has been provided on how frequently courts are called upon to resolve LSMT cases, what kind of issues are raised in the course of these cases, what kinds of difficulties they face in resolving such cases, how they feel about these cases, or what steps courts can and should take in order to handle these cases appropriately (9) In order to begin to address these issues, the Natioanl Center for State Courts undertook a two-year project to determine the role of the courts in the LSMT decision-making process and to generate guidelines to assist state court judges asked to review or make decisions involving the authorization or forgoing of LSMT The project is known as the Decision Making Regarding Life-Sustaining Medical Treatment Project (hereinafter DRLMT) Support was provided by a grant from the State Justice Institute The initial impetus for undertaking the project was provided by the Conference of Chief Justices (hereinafter CCJ) through its Committee on Decisionmaking on Authorizing and Withholding Life-Sustaining Medical Treatment, which passed a resolution after considerable deliberation and study stating that there was a need to explore and develop principles and practical guidelines for judicial decision making in LSMT cases Coordinating Council on Life-Sustaining Decision Making and Project Staff This project relied heavily on a twelve-member, multidisciplinary advisory body, the Coordinating Council on Life-Sustaining Decision Making (hereinafter Coordinating Council) The Coordinating Council was chaired by the Hon Douglas K Amdahl, Chief Justice of Minnesota (retired), with Hon Sol Wacthler, Chief Judge of New York, vice-chair Three other judges, all trial judges, were also involved: the Hon Robert C Bibb, from the Washington Superior Court, Snohomish County; the Hon Hilda R Gage, from the Michigan Circuit Court, Sixth Judicial Circuit, Pontiac, Michigan; and the Hon Francis G Poitrast, Chief Justice of the Juvenile Court Department in Boston, Massachusetts The other members of the Coordinating Council represented a wide range of disciplines and expertise They included Professor Alexander Capron, professor of law and medicine, University of Southern California Law Center; Joan McIver Gibson, PhD …

A Review of Case Law and Psychological Research

Abstract: This article analyzes recent case law on the admissibility of rape trauma syndrome evidence. Because many rulings on the admissibility of this evidence have been based on judicial assumptions about human behavior, rather than on scientific evidence, we next describe psychological research relevant to concerns raised about its scientific reliability, helpfulness, and prejudicial impact. Following this review, we evaluate both the expert testimony provided and the judicial decisions in recent cases in light of current research. Finally, we provide suggestions for future psychological research that could inform discussions of the admissibility of rape trauma syndrome evidence. Psychologists and other mental health professionals have contributed their expertise to court proceedings for many years on such topics as insanity and competency to stand trial. Both the frequency of the use of expert psychological testimony and the types of issues about which psychologists testify have increased in recent years, however. Controversy surrounding the admissibility and ethics of such testimony also has escalated (see, e.g., Elliott, 1991; Ellsworth, 1991; Mc

The Legitimacy of Judicial Decision Making in the Context of Richmond v. Croson.

Abstract: The public profile of the U.S. Supreme Court has rarely been as high as it is now. The replacement of retiring judges with Republican-nominated conservatives over the past decade combined with a series of contentious decisions regarding minority rights and affirmative action in the nation's cities have again raised doubts about the legitimacy of the Court. With respect to the Court's recent decision in City of Richmond v. J.A. Croson Co., this paper considers the theoretical logic behind three strategies of legitimization: (1) the idealization of law as a political institution; (2) the idealization of law as a superior mode of reasoning; and (3) the idealization of law as an ethical blueprint for society. Understanding the logic and limits of these strategies in the context of urban racial justice is the goal of this paper. In doing so, however, it is argued that all three strategies make too powerful claims about the theoretical virtues of their approaches to the law. Notwithstanding the virtues of theor...

What is the difference between a "person" and a "human being" within the law?

Abstract: The difference between legal terms such as “person” and “human being” represents more than a question of standing or mere semantics. Within liberal democratic societies, such as the United States and Canada, such distinctions may indicate substantive differences regarding fundamental concepts such as citizenship, membership in society, and the scope and essential nature of rights and liberties. In particular, judicial decisions regarding abortion have relied upon such distinctions in order to articulate some of the fundamental issues upon which such controversies are based.

A Retrospective on Cruzan

Abstract: In 1990, the United States Supreme Court issued a decision in the Cruzan case, the first "right-to-die case" to reach that Court. Prior to the Court's decision, there was wide-spread speculation as to what it would decide and what the impact of the decision would be. Speculation about the impact of the decision intensified after it was announced, with many suggesting that it would prove to be a serious setback to the consensus about the legality of terminating life-sustaining medical treatment that had evolved in the state courts since the Karen Quinlan case ushered in the era of right-to-die litigation in 1976. This article examines a number of aspects of the legal consensus about forgoing life-sustaining treatment that emerged prior to Cruzan and discusses their viability in light both of what Cruzan did and did not decide and in light of subsequent judicial decisions in right-to-die cases. Two years after the Supreme Court's decision, it is apparent that the pre-Cruzan legal consensus is stronger than ever.

Informed consent: medical-legal update for the practitioner on recent judicial opinions applying state laws.

Abstract: Physicians, in general, and surgeons, in particular, need to be aware that there is no universally applicable definition of informed consent. This paper provides a framework for understanding current, commonly accepted legal approaches and trends. State codes, state cases, and federal cases were searched manually and with the Westlaw and Lexis data bases for states with both informed consent statutes and judicial decisions interpreting those laws. Statutory definitions, where present, may be general or detailed. Legal standards for informed consent disclosure are usually either professionally based or objective. Standards for informed consent causation have been either subjective, objective, or modified-objective. Often, a physician must breech both the disclosure and the causation standards to be legally liable. Results of individual cases depend on the legislative and judicial standards adopted. Physicians need to be conversant with the general approaches to informed consent so they may better understand the applicable standards for their own jurisdictions.

The Lawless Execution of Robert Alton Harris

Abstract: Robert Alton Harris died in the gas chamber of California's San Quentin prison early Tuesday morning, April 21, 1992. Harris, the first person executed in California since 1967,1 had been convicted for committing two murders. The few days before Harris' death contained a flurry of legal activity. On Friday, April 17-about eighty hours before the scheduled execution-attorneys representing death row inmates in California filed a class action lawsuit in the Northern District of California to have the use of the gas chamber declared cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution.2 The suit sought a temporary restraining order barring Harris' execution.3 Over an Easter and Passover weekend, attorneys frantically litigated the issue before the district court, the United States Court of Appeals for the Ninth Circuit, and the United States Supreme Court. Although the district court issued a temporary restraining order preventing the execution for ten days,4 an appellate court panel vacated the order and allowed the execution to go forward as scheduled.5 Judges of the Ninth Circuit issued four additional stays, each overturned by the Supreme Court. The judicial opinions entered over these few days are shocking. The majority of the Ninth Circuit panel that overturned the district court's temporary restraining order, and the seven Supreme Court Justices who vacated the subsequent stays of execution, ignored or misapplied legal principles without justifying their departures from established law. Their understandable frustration

The Law and Psychology of Precedent

Abstract: The literature relating law and psychology places significant emphasis on conceptual and paradigmatic differences (Haney, 1980; Lochner, 1973; Marshall, 1966; Monahan & Loftus, 1982; Tapp, 1976). Divergent methods, reasoning, and decision making underscore allegations of disciplinary incompatibility (cf. Melton, 1987; Monahan & Walker, 1988). A prime example of this incompatibility, it has been argued, may be found in psychology’s devotion to the scientific method in explanation and the law’s reliance on precedent in judicial decision making. Psychology emphasizes creative and innovative research, unhampered by the constraints imposed by precedent and history. As Haney (1980) has observed, in psychology “there is no conscious and constant attempt to link the present to the past.

The History of the Law in Massachusetts: The Supreme Judicial Court 1692-1992

Abstract: What conclusions can we draw from this brief survey of the interplay of the Supreme Judicial Court and the Massachusetts Constitution in the eras of the centennial and bicentennial of the Court? The first, and both most obvious and most important, is surely that generalizations are difficult, if not impossible.