Showing papers on "Judicial opinion published in 1994"
160 citations
TL;DR: In this paper, a model of judicial decision-making based on a judge's concern for reputation and the interdependence of judges' decisions through precedent is developed, and the audience of judges plays a crucial role in the analysis.
Abstract: This paper develops a model of judicial decision-making based on a judge's concern for reputation and the interdependence of judges' decisions through precedent. The audience of judges plays a crucial role in the analysis. In general, we show that reputation can both restrain judicial discretion, but also inspire it if future judges are expected to be persuaded by a decision and follow it, thereby enhancing the authoring judge's reputation.
113 citations
TL;DR: Mishler and Sheehan as discussed by the authors reported evidence of both direct and indirect impacts of public opinion on Supreme Court decisions, at both individual and aggregate level, and further statistical analysis to support the aggregate linkages.
Abstract: In their 1993 article in this Review, William Mishler and Reginald Sheehan reported evidence of both direct and indirect impacts of public opinion on Supreme Court decisions. Helmut Norpoth and Jeffrey Segal offer a methodological critique and in their own reanalysis of the data find, contrary to Mishler and Sheehan, no evidence for a direct path of influence from public opinion to Court decisions. Instead, they find an abrupt-permanent shift of judicial behavior consistent with an indirect model of influence whereby popularly elected presidents, through new appointments, affect the ideological complexion of the Court. In response, Mishler and Sheehan defend the direct public opinion linkage originally noted, at both individual and aggregate level; respond to the methodological critique; and offer further statistical analysis to support the aggregate linkages.
106 citations
TL;DR: Scholars often characterize congressional response to public opinion as either reflecting opinion and legislating accordingly or manipulating opinion for political ends as mentioned in this paper. But when the wider political enriches when the wide political en...
Abstract: Scholars often characterize congressional response to public opinion as either reflecting opinion and legislating accordingly or manipulating opinion for political ends. When the wider political en...
68 citations
TL;DR: In this article, a paternity dispute was brought before a qadir serving in an undetermined location in the northern part of the Western Maghrib in 1312-13.
Abstract: Sometime after the year 1312-13 a paternity dispute was brought before a qādī serving in an undetermined location in the northern part of the Western Maghrib. The claimant asserted that he was the son of a local notable, whereas the latter's legally recognized children asserted that he was the child of a slave-girl who belonged to the notable's daughter. Before issuing his judicial decision, the qādī wrote a detailed letter to a distinguished Fāsī mufti in which he presented a summary transcription of the testimonial evidence and asked the mufti to issue a fatwā corroborating his handling of the case. In the following essay, I seek to shed light on the operation of qādī-justice under the Mārinids in the fourteenth-century by studying the qādī¸s familiarity with legal doctrine, his ability to manipulate legal discourse, and the "art" of his judicial narrative.
47 citations
TL;DR: In this article, the authors present a legal system that minimizes the sum of costs of erroneous judicial decisions and the costs of operating the legal system, by formulating the rules of procedure by judges.
Abstract: RULES of procedure determine and reflect the transaction costs of operating a legal system. An efficient procedural system is one that minimizes the sum of the costs of erroneous judicial decisions and the costs of operating the system.' However, the rules of procedure are formulated by judges. If the self-interest of those judges conflicts with the efficiency criterion, it would seem plausible that the judges will formulate procedural rules that further their own interests rather than the interests of
40 citations
TL;DR: The California Supreme Court's death penalty decisions provide an ideal vehicle for examining the relationships among judicial selection, individual judicial decision making, and court policy-making as discussed by the authors, and the relationship between judicial selection and individual decision-making.
Abstract: The California Supreme Court's death penalty decisions provide an ideal vehicle for examining the relationships among judicial selection, individual judicial decision making, and court policy-makin...
38 citations
TL;DR: In this paper, a high gain fluidic amplifier and a vortex fluidic device are connected around the forward circuit in a negative feedback circuit, where the vortex device may be a passive component utilizing only a control fluid input from the amplifier output, or an active component utilizing both the control (tangential) fluid input and a power fluid (radial) input supplied from a source of constant pressurized fluid.
Abstract: The circuit includes a high gain fluidic amplifier device in a forward circuit portion and a vortex fluidic device in a negative feedback circuit portion connected around the forward circuit. The vortex device may be a passive component utilizing only a control fluid input from the amplifier output, or may be an active component utilizing both the control (tangential) fluid input and a power fluid (radial) input supplied from a source of constant pressurized fluid.
29 citations
TL;DR: For all their faults, public opinion polls are of great importance to public policymaking, especially on issues that are highly visible and controversial as mentioned in this paper, and in the context of capital punishment.
Abstract: For all their faults, public opinion polls are of great importance to public policymaking, especially on issues that are highly visible and controversial. In the context of capital punishment, rese...
22 citations
TL;DR: In this article, the authors outline the major judicial decisions and legislative initiatives that have shaped the growth of various types of maternity and parental leave employment benefits in the United States and Canada.
Abstract: This paper outlines the major judicial decisions and legislative initiatives that have shaped the growth of various types of maternity and parental leave employment benefits in the United States and Canada and analyzes the differences and similarities in the United States and Canadian evolution of these benefits It presents the major judicial arguments in detail, because these arguments represent social and economic perspectives that shaped the labor market opportunities afforded women in the United States and Canada throughout the beginning and the middle of this century It also highlights the interaction between judicial decisions and legislative initiatives in influencing the availability of leave
16 citations
TL;DR: Modifications of legislation and judicial opinion in the history of Oregon's civil commitment procedures from 1853 to the present are summarized to show that changes in civil commitment reflect broader shifts in the social and political aspects of the mental health system.
Abstract: Legislatures, professional groups, and mental health consumers across the United States are currently engaged in a debate about the need for change in civil cormitment procedures. The authors summarize modifications of legislation and judicial opinion in the history of Oregon's civil commitment procedures from 1853 to the present to show that changes in civil commitment reflect broader shifts in the social and political aspects of the mental health system. Many current issues in civil commitment, such as the question of a patient's competency to make treatment decisions, are not new, and they are likely to continue to be controversial as mental health systems attempt to balance concerns about the liberty interests of mentally ill persons with concerns about providing appropriate treatment for mental illness.
TL;DR: Brown v. Board of Education of Topeka, Kansas (Brown I) was heralded as the landmark decision representing the dawning of a new era in American society and its educational system as discussed by the authors.
Abstract: INTRODUCTIONIn 1954, Brown v. Board of Education of Topeka, Kansas (Brown I) was heralded as the landmark decision representing the dawning of a new era in American society and its educational system. With Brown, the Supreme Court ended the systematic educational apartheid that had for so long upheld the constitutionality of separate and unequal educational systems in the United States. Although the decision was intended to ignite immediate nationwide educational reform to end segregation, the winds of change did not blow into many schools until some 15 to 20 years after Brow. Clearly, the Court's admonishment to the states to proceed "with all deliberate speed" was not readily heeded (Brown II, 1955).The promise of igniting change offered by Brown was stalled largely because many schools considered themselves flame-retardant and staunchly rejected the Court's mandates. Despite promised legal repercussions, many school officials vowed never to comply (Rowan, 1993). With the support of local authorities, some succeeded in delaying compliance and yielded only as a result of military force imposed by the President of the United States. Eventually, even those schools that considered themselves the most resistant and impenetrable, most notably Central High School in Little Rock, Arkansas, ultimately succumbed to the educational reform started by Brown (Cooper v. Aaron, 1958).As discussed more fully in other articles in this issue of the Journal of Negro Education, the struggle to implement the spirit and the letter of Brown continued for years (Cordon, 1994; Russo, Harris, & Sandidge, 1994; Stefkovich & Leas, 1994). Students of color soon discovered, however, that the new dawn promised by Brown was an eclipse with prolonged darkness and little light. The monocultural, Eurocentric curriculum continued in force, and many school systems complied only in nontransformative ways. Although judicial opinions succeeded in declaring school segregation illegal, their mandates stopped short of ensuring that the students would be afforded the equal quality educational opportunities they needed to excel. As a result, few if any structural or curricular changes were made to turn schools into educational environments in which students of all hues could thrive.Phillip (1994) submits that although "sociologists, educators, and civil rights advocates agree that the Brown decision has yielded a lot that is worthwhile...as its 40th anniversary is acknowledged, many view the occasion as one for introspection rather than celebration" (p. 9). This article undertakes the task of introspection. Focusing on multicultural education in the context of Brown, it presents a discussion of ongoing educational inequities in American schools since the Court's decision in this landmark case and offers a model for the effective implementation of multicultural education in our pluralistic society.BROWN AND THE DEVELOPMENT OF MULTICULTURAL AWARENESS IN OUR NATION'S SCHOOLSREFLECTIONS ON BROWNAs Phillip (1994) notes, "desegregation of the nation's schools has been a difficult equation to solve" (p. 13). Though Brown outlawed the physical separation characteristic of segregated schools, it fell short of addressing the psychological separation that even today prevents some students who differ racially from the mainstream from bridging cultural gaps. Merely placing students of color in physical proximity to Whites did not result in eradication of the educational disparities perpetuated by segregation; provisions for equal access were not coupled with provisions for equal quality. Four decades after Brown, inequities persist at many levels of our nation's educational system (Orfield, 1993; Weinberg, 1994). Moreover, White flight--the exodus of Whites from the cities to the suburbs and exurbs from the 1960s to the present--has resulted in urban classrooms largely populated by students of color whose socioeconomic status is lower than that of their White counterparts. …
Journal Article•
TL;DR: In this article, the authors discuss the importance of reason in the American public opinion system and its role in the formation and operation of the American opinion system. But they do not discuss the role of the media in this process.
Abstract: i. FORM AND FUNCTION IN THE AMERICAN OPINION ........................ 85 A. Aims of the Reasoned Opinion .................................. 86 1. Guidance ............................................ 86 2. Persuasion .......................................... 87 3. Judicial Accountability ................................... 88 4. Legitimacy .......................................... 89 B. A Note on the Importance of Candor ............................. 91
Posted Content•
TL;DR: The distinction between the concrete and abstract nature of the judicial power in the United States is discussed in this article, where it is argued that the first case does not merely resolve a dispute between the parties but announces a general principle applicable in future cases as well.
Abstract: At the heart of the federal judicial power lies a tension between the concrete and the abstract. On the one hand, Article III's case-or-controversy requirement prohibits federal courts from issuing advisory opinions. Federal courts may not decide "abstract, hypothetical or contingent questions"; they must instead limit their exercise of judicial authority to concrete disputes that arise out of the adversary process. On the other hand, the precept that like cases should be treated alike - rooted both in the rule of law and in Article III's invocation of the "judicial Power" rests upon the assumption that judicial decisions are necessarily abstract or general. To say that the reasoning in a prior case supports or even requires the same or similar result in a later case is to recognize that the first case does not merely resolve a dispute between the parties but announces a general principle applicable in future cases as well. Thus, Article III contains both a concreteness norm and an abstraction norm.
01 Jan 1994
Abstract: To paraphrase Hogarth (1971), judicial sentencing is a process involving human judgment and decision making with all its pitfalls and limitations. Examining how judges organize, interpret, and use information about offenders is crucial to the explanation of this process and its outcomes. As Lawrence (1984) has noted, however, “little empirical evidence has been available on how judicial decisions are made” (p. 319). Since 1984, a few studies have investigated the decisionmaking processes underlying judicial sentencing; nonetheless, empirical research and conceptual development in the area are still very limited.
TL;DR: In this article, the authors reveal how judicial discourse has been used to redefine the Court's role and the world-view presumed for its audiences by uncovering three judicial inventional strands: a rhetoric of efficiency, a revised rhetoric of reasonableness, and appeals to tradition and majoritarian ethics.
Abstract: Legal critics Dellapenna and Farrell (1991) urge examination of "how modes of judicial reasoning and the discourse in which that reasoning has resided have changed." Such work is important, they note, because the discourse of law "structures the 'conversation through which democracy proceeds'". This essay supports Dellapenna and Farrell's perspective. Uncovering three judicial inventional strands--a rhetoric of efficiency, a revised rhetoric of reasonableness, and appeals to tradition and majoritarian ethics--the essay reveals how judicial discourse has been used to redefine the Court's role and the world-view presumed for its audiences. More specifically, this study shows how the resulting new "thesis of political morality" (Sager, 1990, p. 28) has transformed this nation's conception of democracy. Studies of judicial reasoning (Dworkin, 1986, Golden and Makau, 1982) reveal that Supreme Court inventional strategies both reflect and help create cultural norms, particularly those that govern institutional ethics and the ostensible grounds for institutional decision making. Upham's (1991) study of differences between Japanese and American methods of judicial invention supports this view. Upham's research indicates that although the actual legal results of cases in these diverse cultures are sometimes remarkably similar, the Justices' inventional strategies are strikingly different. According to Upham, the fundamental difference in rhetorical strategy "both exemplifies and creates a different understanding of the nature of society that may be fundamentally more important than any similarity in outcomes". White's (1984) research further supports study of judicial inventional strategies. He notes that the law "constitutes both the community and the culture it commands". The language of law is a language "in which our values and motives are defined, in which our methods of reasoning are elaborated and enacted; and it gives us our terms for constructing a social universe by defining roles and actors and by establishing expectations as to the propriety of speech and conduct" (White, 1984, p. 36).(1) Examining evolving judicial inventional strategies therefore provides valuable insight into shifting cultural norms. SETTING THE CONTEXT FOR JUDICIAL INVENTIONAL STRATEGIES From Marshall's famous Marbury opinion, written largely to legitimize the power of judicial review, to today's controversial decisions, Justices have crafted arguments responsive to societal standards of reasonableness (Murphy, 1964; Ball, 1978; Berkson, 1978; Golden & Makau, 1982; Makau, 1983, 1984a, 1984b). Throughout this history, however, critics have challenged judicial efforts to maintain an ethos of reasonableness. During this century, legal realists posed a difficult and prolonged challenge to the Court's ethos by publicly questioning, for example, the authenticity of the Court's reasoning strategies. The noted Realist Jerome Frank (1930) insisted that judges "in fact" start with conclusions and make efforts to substantiate them as they proceed. He argued that judicial decisions are primarily the result of hunches combined with a judge's entire life of experiences, shaped values, and beliefs. He urged both judges and scholars to acknowledge the tenuous nature of judicial decision making, thereby helping all involved refine techniques of prediction. The more recently evolved Critical Legal Studies Movement seeks even greater "realism."(2) Proponents of this perspective reject even the pretense of reasonableness in judicial decision making. They see instead the hand of politics (i.e., ideology) and economics behind every major Court decision, casting doubt on even the most zealous judicial effort to appear reason bound. But even adherents of the Realism and Critical Legal Studies (CLS) perspectives readily acknowledge that Justices seek to maintain an ethos of reasonableness. They recognize, too, the potency of judicial rhetoric. …
Posted Content•
TL;DR: The authors examine the development of libel law in America since the Supreme Court's watershed decision in New York Times Co. v. Sullivan and suggest that Sullivan affords members of the press less protection than many think.
Abstract: In this article, the authors examine the development of libel law in America since the Supreme Court's watershed decision in New York Times Co. v. Sullivan and suggest that Sullivan affords members of the press less protection than many think. Sullivan's actual malice standard invites judges to create norms of acceptable journalistic conduct for news gathering, which members of the press and their lawyers use as maps to navigate around libel liability. The authors examine a large number of these judicial decisions and note the types of journalistic conduct at issue and what conduct the courts view positively. The authors also examine the modes of decision making that courts employ and suggest that judges may take a more restrictive approach in cases concerning research than in cases concerning writing and editing. The considerable leeway that judges have in deciding libel cases presents a serious threat to press freedom. The authors urge law reformers to abandon Sullivan's actual malice standard and adopt alternative forms of First Amendment protection.
Posted Content•
TL;DR: The legal recognition of gay "rights" is often accompanied by a period of frantic activity as the competing forces of stasis and evolution vie for domination as discussed by the authors, where the findings of modern science, in their varied and multifarious forms, are pitted directly against prevailing moral or societal precepts.
Abstract: Disjunctive legal change is often accompanied by a period of frantic activity as the competing forces of stasis and evolution vie for domination. Nowhere is the battle for legal change likely to be more sharply joined than when the findings of modern science, in their varied and multifarious forms, are pitted directly against prevailing moral or societal precepts. One of the latest incarnations of this trend is the battle over the legal recognition of gay "rights." In recent history, the courts have been inundated by gay litigants seeking the rights and protections already afforded other discrete groups within society. In the resulting legal skirmishes, gay individuals are resorting with increasing regularity to the sciences in an effort to overcome the moral opprobrium surrounding homosexuality. The judicial opinions which have resulted from the onslaught of gay litigants have not remained untouched by the scientific information adduced. Rather, as this Article will demonstrate, a disproportionally large number of gay rights opinions contain citations and references to social science information. These judicial opinions have become artifacts of the battle between modern science and existing moral conceptions of homosexuality and provide a discrete microcosm within which to examine science's contribution to legal change. The lessons derived from gay rights cases may help to elucidate other contexts in which science and morality meet head-on.
TL;DR: In this article, the author criticizes the argument in Dyzenhaus (1991) that a study of South African judicial decisions establishes the superiority of Dworkinian anti-positivism over legal positivism.
Abstract: The author criticizes the argument in Dyzenhaus (1991) that a study of South African judicial decisions establishes the superiority of Dworkinian anti-positivism over legal positivism. Among the claims criticized are: (1) Positivism and anti-positivism each imply a specific theory of judicial duty, and the decisions of South African judges are explained by their adherence to one or the other of these theories; (2) resistance to South African government policy was morally required of judges; (3) the only theory which supports this resistance (anti-positivism) is therefore the correct one; (4) the cases establish that judges do not have discretion in hard cases; (5) Dworkin's theory does not imply that South African judges are required to apply the wicked principles embedded in their legal system; (6) positivism involves a pragmatic contradiction.
Book•
08 Sep 1994
TL;DR: Grossman as mentioned in this paper provides a comprehensive review of the development of legal research tools in the history of law, including court reports, digests, legislative codes, administrative regulations, citators, treatises, law reviews, and other sources, concluding each section with a description of the research tools of today and the impact of computers.
Abstract: Maintaining that the development of legal research tools has been a fundamental and integral part of the history of law, this comprehensive anthology includes selections and notes on court reports, digests, legislative codes, administrative regulations, citators, treatises, law reviews and other sources, concluding each section with a description of the research tools of today and the impact of computers on modern legal research. Readings also examine the impact of legislative publications on the judicial interpretation of statutes, the attempts to bring under control the growing mass of information generated by modern-day administrative regulation, the interrelationship between the development of court reporting and the use of judicial decisions as precedents, and the effect of scholarly literature on the growth of the law. In each section, Grossman relates the historical readings to the legal information environment of today and in the Epilogue he examines the wide-ranging impact of computers on legal research. The book is intended to develop practical research skills in the most meaningful way--by appreciation of the forces which brought each research tool into being and the purposes those tools are intended to serve.
TL;DR: The article examines the pros and cons of bringing legal actions for child sexual abuse many years later, and concludes with a discussion regarding the current debate about the accuracy and authenticity of long-term memory and the advisability of legal reforms to extend or eliminate the statute of limitations.
Abstract: This article first briefly discusses the problem of delayed memories and long-term effects of child sexual abuse and the current trend to bring civil lawsuits or criminal prosecutions for childhood sexual abuse. The article addresses the primary obstacle to such actions--the statute of limitations--which in most states places a time limit on when legal actions can be commenced. It describes the purpose of the statute of limitations and the need for changing or extending it in child sexual abuse cases; it then summarizes and analyzes the methods used by state legislation and judicial decisions to change or extend the statute of limitations in both criminal and civil actions. The article examines the pros and cons of bringing legal actions for child sexual abuse many years later, and concludes with a discussion regarding the current debate about the accuracy and authenticity of long-term memory and the advisability of legal reforms to extend or eliminate the statute of limitations in this area. Language: en
Posted Content•
TL;DR: The authors study the use of baseball metaphors in judicial opinions, including the judge as "umpire", "hit-and-run", and "three strikes and you're out" and consider the ways in which such metaphors might direct thought about the underlying subject matter in inappropriate directions.
Abstract: This article draws on literary and linguistic theory, as well as prior work studying the effects of metaphor in judicial opinions, to study the use of a specific type of metaphor - baseball metaphors - in judicial opinions. The article surveys several specific metaphors that have been recurrently used - including the judge as "umpire," "hit-and-run," and "three strikes and you're out" - and considers the ways in which the use of such metaphors might direct thought about the underlying subject matter in inappropriate directions. (And it is, in reality, more interesting than those two sentences might make it sound. You should totally download it.)
Book•
30 Aug 1994
TL;DR: In this paper, a survey of Constitutional Amendments and their impact on change is presented, along with a selective look at the impact of the political branches in changing the U.S. Constitution.
Abstract: Preface The Process of Constitutional Amendment and Constitutional Change A Survey of Constitutional Amendments and Their Impact on Change A Selective Look at Supreme Court Decisions and Their Impact on Change A Selective Look at the Impact of the Political Branches in Effecting Change Examining the Terminology and Theory of Constitutional Change Laws, Orders, Judicial Decisions, and Amendments: A Comparative Analysis Appendix: Amendments to the U.S. Constitution Selected Bibliography Index
Journal Article•
TL;DR: This article argued that Marshall's decisions reflected a commitment to a careful reading of the constitutional text (as opposed to conceptions of natural law or a judge's extraconstitutional policy preferences) and this practice is to be preferred over what is presumed to be a more modem and less legitimate notion, traced to the turn-of-the-century Court, that judicial decisions should be based on more abstract and atextual conceptions of political morality.
Abstract: A struggle is underway over the legacy of John Marshall. For some time a number of political scientists (Mendelson 1982; Wolfe 1986; Clinton 1989; Goldstein 1991) have been waging a battle to rescue Marshall from those who presumably have been claiming that the great Chief Justice not only established the precedent for judicial review but also established the precedent of the activist use of judicial power-with activist in this context referring to result-oriented decisionmaking that is not supported by a fair reading of the constitutional text.' There are important differences separating these writers but they share a belief that Marshall's decisions reflected a commitment to a careful reading of the constitutional text (as opposed to conceptions of natural law or a judge's extraconstitutional policy preferences) and that this practice is to be preferred over what is presumed to be a more modem and less legitimate notion, traced to the turn-of-the-century Court, that judicial decisions should be based on more abstract and atextual conceptions of political morality. There is much to be admired in the work produced by these scholars. They have contributed to our understanding that Marshall viewed the Constitution as positive law and not as a gateway to decisions based on natural justice (see also Snowiss 1990). They have also helped remind political scientists that it is often misleading to characterize SupremeCourt decisionmaking as governed by the justices' idiosyncratic policy preferences. A careful reading of texts and contexts often uncovers a process that more closely resembles principled (albeit politically charged) acts of interpretation than unrestrained acts of legislation.2
Journal Article•
TL;DR: The citation practices of the provincial courts of appeal also show a striking reliance on their counterparts in other provinces as mentioned in this paper, such as Ontario, Quebec, British Columbia, and New Brunswick.
Abstract: It comes as no surprise that the provincial courts of appeal frequently cite as authority the decisions of the Supreme Court of Canada or the prior decisions of the court of appeal itself. However, the citation practices of these courts also show (emerging before, and persisting after, 1970) a striking reliance on their counterparts in other provinces. Both the simple existence of this interprovincial conversation and the details of its provenance-such as the dominance of Ontario, the persistent isolation of Quebec, the recent emergence of British Columbia-constitute an important and distinctive element of judicial decision making in Canada. This article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol32/iss2/3 THE EVOLUTION OF COORDINATE PRECEDENTIAL AUTHORITY IN CANADA: INTERPROVINCIAL CITATIONS OF JUDICIAL
TL;DR: The book consists of a first chapter titled "A Little Law for Non-Lawyers," a section reviewing the medical background of AIDS, a comparison to other epidemics in history, an analysis of the relationship between lawyers and physicians, and 16 essays on a wide range of social, political, financial, and practical issues related to AIDS.
Abstract: When the first edition of this book (called AIDS and the Law: A Guide for the Public ) went to press in 1988, the legal profession had just recently "discovered" the acquired immunodeficiency syndrome (AIDS). There were only a handful of judicial decisions involving the human immunodeficiency virus (HIV) and AIDS and few books that covered the legal issues raised by the epidemic. Since then, AIDS has become the most litigated of diseases in the United States. AIDS and the Law was written in lay terms and intended as a guide for the public rather than for lawyers. The book consists of a first chapter titled "A Little Law for Non-Lawyers," a section reviewing the medical background of AIDS, a comparison to other epidemics in history, an analysis of the relationship between lawyers and physicians, and 16 essays on a wide range of social, political, financial, and practical issues related to
TL;DR: In this article, Cover explores the tensions faced by "antislavery" judges when they were called upon to decide cases under laws that upheld the legality of slavery and identifies certain rhetorical devices used by such judges in their attempts to mitigate this tension.
Abstract: Today, I have taken an oath as a judge, as a judge of a great Court of Appeals. What I can properly do for those left behind in this role is limited. A judge is appropriately restrained. … As a judge I must never forget that. …But neither must I or any judge hide behind the role and fail to do that which is properly our function. …Whenever as judges we use logic or reasoning that would have led to catastrophic results in the great landmarks of our legal history—logic and reasoning that all too often did lead to such results—we should rethink that logic. And we should do so especially when that logic seems compelled by our roles.In Justice Accused, Robert Cover explores the tensions faced by “antislavery” judges—judges who strongly believed that slavery was immoral—when they were called upon to decide cases under laws that upheld the legality of slavery. Cover focuses on the tension created by the divergence of law and personal morality in such situations, which he terms the “moral-formal dilemma.” After analyzing the legal and historical context of these cases, Cover identifies certain rhetorical devices used by such judges in their attempts to mitigate this tension. Specifically, Cover labels these dissonance-reducing behaviors as (i) elevation of the formal stakes; (ii) retreat to a mechanistic formalism; and (iii) ascription of responsibility elsewhere.
Journal Article•
TL;DR: The most common difference between externalism and judicial practice is that externalism emphasizes, theoretically and critically, the outcomes reached in adjudication; while viewed critically from the standpoint of internality, those very same judicial decisions are justified not on the basis of their results, but insofar as they satisfy the conditions of adjudicative excellence-impartiality, reasoned explanation, articulative boundaries, coherence, and workability as discussed by the authors.
Abstract: moral values and should be "interpreted in a normative way, so as to provide the best theory of the values of the [American constitutional] tradition."' ' t 6 He thus directs judges to read the Constitution according to the "best moral and political theory,"'' 8 7 which he sees as a combination of John Locke and John Rawls.1 88 The list could go on, as the variety of externalist theories is rich and diffuse. Yet even this brief survey suffices to show that while the many externalist characterizations of constitutional vision and method vary markedly, they share certain foundational assumptions. These assumptions mark from the outset the sharp contrast between the practices of externalist jurisprudence and adjudication. First, as I have stressed throughout this essay, the most fundamental difference between externalism and judicial practice is one of orientation: externality or internality. Legal scholars who evaluate judicial decisions on the basis of criteria external to the practice of adjudication engage in a cognitive enterprise fundamentally different than that of deliberating over and rendering decisions in the restrictive context of concrete disputes arising within judicial practice. Second, externalist theory is essentially result-oriented, whereas adjudication is practice-oriented. Externality emphasizes, theoretically and critically, the outcomes reached in adjudication; while viewed critically from the standpoint of internality, those very same judicial decisions are justified not on the basis of their results, but insofar as they satisfy the conditions of adjudicative excellence-impartiality, reasoned explanation, articulative boundaries, coherence, and workability. Third, externalist writers rely heavily on abstract generalities. They posit, for use in adjudication, normative standards of justice, rights, or political morality which take the form of abstract general rules or principles known a priori. Courts, to the contrary, often expressly reject such abstract essentialist definitions in favor of meanings worked out in practice. Fourth, externalist jurists work from within a rationalist paradigm where particular constitutional provisions are said to have determinate meaning accessible by deductive reasoning from the predetermined abstract general rules and principles. 89 This rationalist model stands at odds with judicial practice, where legal meaning is 186. Richards, Toleration and the Constitution, 30. 187. Ibid. 188. See Richards, Foundations of American Constitutionalism; Richards, Toleration and the Constitution; Richards, "Human Rights as the Unwritten Constitution: The Problem of Change and Stability in Constitutional Interpretation," University of Dayton Law Review 4 (1979): 295-303. 189. In this respect, externalism resembles nineteenth-century Legal Formalism. See H.L.A. Hart, "Jhering's Heaven of Concepts and Modem Analytical Jurisprudence," in Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 265, 269 (describing the formalist model of adjudication in terms of logical deduction from fixed general rules); Hart, The Concept of Law (Oxford: Oxford University Press, 1961), 124-27 (same). See generally, Douglas Lind, "Free Legal Decision and the Interpretive Re-Turn in Modem Legal Theory," American Journal of Jurisprudence 38 (1993): 159-88. [Vol. 6: 353 26 Yale Journal of Law & the Humanities, Vol. 6 [1994], Iss. 2, Art. 9 http://digitalcommons.law.yale.edu/yjlh/vol6/iss2/9
01 Jan 1994
TL;DR: The legal recognition of gay "rights" is often accompanied by a period of frantic activity as the competing forces of stasis and evolution vie for domination as discussed by the authors, where the findings of modern science, in their varied and multifarious forms, are pitted directly against prevailing moral or societal precepts.
Abstract: Disjunctive legal change is often accompanied by a period of frantic activity as the competing forces of stasis and evolution vie for domination. Nowhere is the battle for legal change likely to be more sharply joined than when the findings of modern science, in their varied and multifarious forms, are pitted directly against prevailing moral or societal precepts. One of the latest incarnations of this trend is the battle over the legal recognition of gay "rights." In recent history, the courts have been inundated by gay litigants seeking the rights and protections already afforded other discrete groups within society. In the resulting legal skirmishes, gay individuals are resorting with increasing regularity to the sciences in an effort to overcome the moral opprobrium surrounding homosexuality. The judicial opinions which have resulted from the onslaught of gay litigants have not remained untouched by the scientific information adduced. Rather, as this Article will demonstrate, a disproportionally large number of gay rights opinions contain citations and references to social science information. These judicial opinions have become artifacts of the battle between modern science and existing moral conceptions of homosexuality and provide a discrete microcosm within which to examine science's contribution to legal change. The lessons derived from gay rights cases may help to elucidate other contexts in which science and morality meet head-on.