Showing papers on "Judicial opinion published in 1997"

Appeal to Expert Opinion: Arguments from Authority

Abstract: Reliance on authority has always been a common recourse in argumentation, perhaps never more so than today in our highly technological society when knowledge has become so specialized—as manifested, for instance, in the frequent appearance of "expert witnesses" in courtrooms. When is an appeal to the opinion of an expert a reasonable type of argument to make, and when does it become a fallacy? This book provides a method for the evaluation of these appeals in everyday argumentation.

Self-Determination and National Minorities

Abstract: 1.: The Origins of National Consciousness. 2.: Self-Determination and the First World War. 3.: The Inter-War Years: The Minorities Treaties Regime. 4.: Self-Determination in Modern International Law: International Instruments and Judicial Decisions. 5.: Self-Determination in Modern International Law: The Practice of States. 6.: The Protection of Minorities. 7.: Definitions of the Term "People". 8.: Secession. 9.: Irredentism. 10.: Historical Title. Epilogue. Bibliography. Index

The Life of the Law: Judicial Politics and Legal Change

Abstract: To what extent is legal change influenced by judicial politics? This question, as initially posed by legal realists, provided the stimulus for much of the early study of the judicial process Although judicial scholars have since explored the impact of judicial policy views, the litigation environment, and the political environment, no systematic analysis of the impact of these factors on legal change has been undertaken. I develop a measure of legal change and use it to test the impact of judicial politics by examining search and seizure cases decided by the Supreme Court between 1962 and 1989 Using a multinomial logit model, I find that several aspects of the judicial process, particularly the Court's political composition, legal constraints, litigant resources, attorney experience, amicus support, and presidential preferences, affect the direction of legal change.

Explaining u.s. courts of appeals decisions involving performance appraisal: accuracy, fairness, and validation

Abstract: Accuracy and due process perspectives were used to extend policy-capturing research concerning employment discrimination case law. Two-hundred ninety-five usable U.S. Circuit Court decisions concerning performance appraisal were located from 1980–1995. In both chi-square and multivariate LOGIT analyses, decisions were explained by: use of job analysis, provision of written instructions, employee review of results, and agreement among raters. Contrary to hypotheses, appraisal frequency and type (traits vs. behaviors or results) were unrelated to judicial decision. Rater training approached significance in chi-square analysis. Of other variables checked (e.g., type of discrimination claim, statutory basis, class action status, year of decision, circuit court, type of organization, purpose of appraisal, evaluator race and sex), only circuit court approached significance. We conclude that issues relevant to fairness and due process were most salient to judicial decisions; issues pertaining to accuracy were important, yet validation was virtually ignored in this sample of cases.

Decision Costs and the Strategic Design of Administrative Process and Judicial Review

Abstract: The ability of Congress to structure the institutional costs of agency and judicial decision making gives it considerable control over regulatory policy. We analyze the role of decision costs through models of agency‐court interaction and consider the ability of Congress to manipulate such costs for its own policy purposes. We explore the implications of these models by examining recent congressional efforts to change the decision cost structures of agencies and courts. In particular, we consider the so‐called Bumpers Amendments of the 1980s and, from the 1990s, the Republican‐proposed imposition of cost‐benefit analysis on agency decision making.

The American Law Institute and the Triumph of Modernist Jurisprudence

Abstract: In most studies of the early twentieth-century emergence of a modern conception of law in America, the formation of the American Law Institute in 1923 is not highlighted. One might point to academic literature advocating a “sociological” approach to judicial decision making, or a behavioralist approach to the work of judges, or the reorganization of law school casebooks to include “functional” legal categories or social science materials. One might unpack the work of an early twentieth-century lawyer, or even a judge, and find a jurisprudential perspective that could be labeled modernist. Finally, one might note the appearance of litigation strategies—encapsulated in the term “Brandeis brief”—designed to incorporate into case decisions arguments that legal rules should reflect their social context. But one would not associate the arrival of modernist jurisprudence in America with the early history of an organization of elite lawyers and judges whose stated purpose was to commission “restatements” of black-letter common law rules.

The Framework of Judicial Sentencing: A Study in Legal Decision Making

Abstract: List of figures List of tables Acknowledgments 1. Judicial decision making and sentencing policy: continuation of a study 2. A sentencing decision model: single and multiple similar counts 3. A sentencing decision model: multiple disparate counts 4. Testing the decision model for multiple disparate counts 5. The techniques of data collection 6. Judges' thoughts on sentencing the multiple offender 7. An alternative sentencing decision model for the multiple offender 8. Validity and development of the alternative decision model: the data collection 9. Towards a requisite decision model for sentencing the multiple offender 10. The armature of judicial sentencing Appendix: Case 37 from Sentencing Research Exercise - Part 3B References Index.

The legality of threat or use of nuclear weapons : a guide to the historic opinion of the International Court of Justice

Abstract: " ""The threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict, and in particular the principles and rules of humanitarian law ... There exists an obligation to pursue in good faith and bring to a conclusion negotiations leading to nuclear disarmament in all its aspects under strict and effective international control."" - Advisory Opinion of the International Court of Justice, 8 July 1996 ""This book shows how courageous states from the developing world, working in concert with visionary lawyers, physicians and other sectors of international civil society, boldly obtained astonishing results from the highest court in the world. The World Court clearly ruled that the threat or use of nuclear weapons is illegal in almost all conceivable circumstances. The Court further underlined the unconditional obligation of the nuclear weapon states to begin and conclude negotiations on nuclear disarmament in all its aspects. It is now up to all of us to determine the follow-up, whatever the opposition. We cannot end this century without clear commitments and steps to eliminate nuclear weapons."" - Razali Ismail, Permanent Representative of Malaysia to the United Nations, President of the United Nations General Assembly, 1996-1997 ""It is not often that a judicial opinion on a given question is both hailed and criticized by participants on all sides of the question. This book, written by a leading member of the team that helped to prepare the case on the illegality of the threat and use of nuclear weapons, explains succinctly what the World Court, and the judges in their separate statements, did and did not say. In so doing, it makes a compelling case for the proposition that the Opinion represents a milestone on the road to nuclear abolition."" - Peter Weiss, Co-President, International Association of Lawyers Against Nuclear Arms The 20th century has been defined in large part by the unleashing of the terrible destructive power of the atom, and the subsequent struggle to overcome the threat of nuclear annihilation. If humankind survives, the 8 July 1996 Advisory Opinion of the International Court of Justice, and the extraordinary process that led up to it, will have played an essential role. The (Il)legality of the Threat or Use of Nuclear Weapons is a concise yet thorough guide to the case. In straightforward language, it describes the history of this unprecedented initiative and summarizes and explains states' arguments to the Court, the Court's findings, and the separate statements of the judges. The author provides cogent expert analysis and, most importantly, reveals how the opinion imparts hope and points the way to the future: "" The Court has authoritatively interpreted law which states acknowledge they must follow, including humanitarian law protecting civilians from indiscriminate effects of warfare, the United Nations Charter, and the Nuclear Non-Proliferation Treaty. The implications are profound: abandonment of reliance on the threat and use of nuclear weapons as an instrument of national policy, and expeditious elimination of nuclear arsenals. The opinion can be cited as an authoritative statement of the law in any political or legal setting - including the United Nations and national courts and parliaments - in which nuclear weapon policies are challenged."" John Burroughs, an attorney for the Western States Legal Foundation in California, served as the legal coordinator for the World Court Project/International Association of Lawyers Against Nuclear Arms at the November 1995 hearings before the International Court of Justice. "

The Effect of Courtroom Dynamics on Child Maltreatment Proceedings

Abstract: The Adoption Assistance and Child Welfare Act of 1980 initiated major reform of court proceedings for children who enter into state care as a result of abuse, neglect, or dependency. Yet the implementation of reforms anticipated by the law has been uneven. Using data from surveys of six groups of key decision makers in Kentucky coupled with more extensive data from five counties, we apply a "courtroom workgroup" model of judicial decision making in order to understand how workgroup dynamics affect policy.

Guess who's coming to dinner? A preliminary model for the satisfaction of public opinion as a legitimate aim in sentencing

Abstract: This paper provides a preliminary outline of a possible model of how the satisfaction of public opinion could be used in a rational system of sentencing. As public opinion data concerning the criminal justice system is becoming increasingly sophisticated and readily available, and public opinion clearly plays a role in the sentencing decision, a model whereby the satisfaction of public opinion may be judiciously and effectively incorporated into the sentencing system is urgently required. Some of the pitfalls of using public opinion data are also highlighted as a caveat to the feasibility of such a model.

5 Political Attacks on the Judiciary: Can Justice Be Done Amid Efforts to Intimidate and Remove Judges From Office for Unpopular Decisions?

Abstract: The increasing political attacks on the judiciary by both major political parties and by candidates for judicial office are diminishing the independence of the judiciary and, equally important, the public's confidence in it. Thus, the distinction between fair criticism of judges and intimidation of them is an important one.There is no question that fair criticism plays a critical role in improving the quality of the courts. Every appeal, every petition for rehearing, every dissent is a criticism of a judicial decision. Decisions like Dred Scott v. Sandford, Plessy v. Ferguson, and McCleskey v. Kemp should be criticized. Citizens should ask if these decisions were correct. What does the Constitution require? Should it be amended? If the case involved a matter of statutory interpretation, should Congress respond with legislation?It is equally clear that everyone in the United States has a First Amendment right to be a demagogue and to make irresponsible criticism. But irresponsible criticism which brings about the removal of judges from office or influences their decisions is incompatible with judicial independence and the rule of law. Courts have a duty to protect the rights of minorities - political, racial, ethnic - no matter how unpopular their rulings may be. Legislators or executives may base their decisions on focus groups or public opinion polls, but judges may not. Judges are expected to enforce the law, whether it be the First Amendment freedom of the radical right or the radical left to publish political views which may seem distasteful to some, the right of The New York Times to publish the Pentagon Papers or the right of a suspected child molester to a fair and impartial trial. As Edmund Burke put it, the judiciary is to serve as "safe asylum" during times of crisis. In the United States, courts are to uphold the Bill of Rights regardless of whether the decision is popular at the time.Courts are not independent when state judges are voted off the bench because of unpopular decisions by their courts and federal judges reverse decisions or resign from the bench after a barrage of criticism. We must find ways to protect the rule of law from the potential harms of irresponsible criticism of judges and judicial decisions.The first issue I will address is what constitutes fair criticism and what constitutes irresponsible demagoguery that threatens the independence of the judiciary. Second, I will examine the damage to the integrity, effectiveness, and credibility of the courts caused by irresponsible attacks. Third, I will propose ways in which political leaders, the Bar, and others who care about the integrity of the judiciary should respond to irresponsible behavior, such as President Clinton's and former Senator Dole's attacks on Judge Baer, 24 and measures that could be adopted to ensure that decisions are based on the law and not political pressures.

Adjudication as Representation

Abstract: This Article sets forth an interpretive theory of adjudicative lawmaking according to which, under certain conditions, such lawmaking ensures constructive participation through interest representation and thus is not inherently nondemocratic. The author contends that the idea of ‘judicial activism,‘ courts deciding issues better left to political processes or substituting the personal ‘values‘ of judges for law, is based on the incorrect assumptions that courts are unconstrained and nonrepresentative. Instead, when adjudication operates in an archetypal way, it produces law in a manner similar to the parliamentary legislation process. Courts making law are constrained by the process of participatory decisionmaking--the production of judicial decisions through voluntary, self-directed debate among litigants. Moreover, adjudicative lawmaking occurs through the operation of interest representation--the binding of subsequent parties by precedent only to the extent that they are similarly situated to the original parties. The conditions necessary for adjudicative lawmaking to function democratically are that litigants participate to a significant degree in the production of binding decisions, that precedential decisions bind only future parties who are similarly situated to the parties to the original action, and that the conduct of the original litigants meet at least a threshold standard of adequacy. The author examines adjudicative lawmaking from the perspective of proceduralist and functionalist democratic justificatory theories and then demonstrates, using case law and current controversies, that a threat to adjudicative legitimacy arises when the potential binding effects of a decision extend beyond its particular facts. The author concludes that in our concern over judicial decisionmaking, we should monitor the decisionmaking processes used by courts to ensure that adjudication follows or simulates common law processes, thus rendering it democratically legitimate.

Does Public Choice Theory Justify Judicial Activism After All

Abstract: Some legal scholars have argued that public choice theory justifies certain kinds of judicial activism.! Others have said it does not. 2 Given the present state of the debate, it would appear that those finding no necessary support for judicial activism have the stronger argument. I will suggest, however, that if we tweak the analysis a little further, it may turn out that public choice theory provides limited support for judicial activism after all. From an economic perspective-which is to say, the public choice perspective-it may be useful to think of judicial activism as part of a larger market in which a product called \"law change\" is bought and sold.3 This market has many potential buyers, in the form of the interest groups to which the previous panelists have already referred. Virtually every group has some change in law it would like to see adopted, whether it be producer groups that would like to see new limitations on entry by potential competitors, or environmental groups that would like to see new limitations on the development of natural resources. On the seller side, we can simplifY the analysis by assuming that there are only two firms in the market for law change-the legislature and the courts. We can then reformulate the inquiry as follows: what sorts of factors will determine the demand for

Of Time and Judicial Behavior : Time Series Analyses of United States Supreme Court Agenda Setting and Decision-making, 1888-1989

Abstract: This study examines the agenda setting and decision-making behavior of the United States Supreme Court from 1888 to 1989.

Social, Cultural, and Temporal Dynamics of the AIDS Case Congregation: Early Years of the Epidemic

Abstract: Studies of legal decisionmaking have focused traditionally on how social influences, particularly the relative social standing of competing parties, affect case outcomes. More recently, sociolegal scholars have directed their attention to the significance of cultural categories in shaping case-based decisionmaking. The authors here examine how both social and cultural factors shape judicial decisions and their meanings for a congregation of court cases precipitated by the AIDS epidemic in the United States. Their logistic regression analysis of the opinions of 181 AIDS-related cases decided in the early years of the epidemic (1983-89) finds that two social factors, the relative social standing of parties and the types of claims brought to the court, and two cultural factors, the court's use of negative AIDS metaphors and references to individual rights, are significantly related to case outcome. Finally, in line with M. Galanter's notion that case congregations have histories that involve development and change over time, their temporal analysis reveals the emergence of two case congregations and suggests how each serves to bolster the legitimacy of the judiciary amidst social crisis

Construction management contracts: law and practice

Abstract: The context of construction management (CM) reveals that this method of procurement is as much a management philosophy as a contract structure. It is important to consider legal and contractual issues in this context. The interplay between management and law is complex and often misunderstood. Before considering specific issues, the use of contractual remedies in business agreements is discussed. In addition, the extent to which standardising a form of contract detracts or contributes to the success of projects is also considered. The dearth of judicial decisions, and the lack of a standard form, render it difficult to be specific about legal issues. Therefore, the main discussion of legal issues is centred around a recently completed research project which involved eliciting the views of a cross‐section of experienced construction management clients, consultants and trade contractors. These interviews are used as the basis for highlighting some of the most important legal points to consider when setting up CM projects. The interviews revealed that the advantage of CM is the proximity of the client to the trade contractors and the disadvantage is that it depends on a high degree of professionalism and experience; qualities which are unfortunately difficult to find in the UK construction industry.

Shaping Judicial Law in the Post-World War II Period: When Is Labor's Legal Mobilization Successful?

Abstract: The authors examine the circumstances in which labor is successful in the federal appellate courts when it has filed unfair labor practice charges against employers. They specifically focus on legal disputes concerning union organizing. Few studies have examined the role of class dynamics in shaping judicial law, even when labor law is studied. They find evidence that two strategies used by class actors influence judicial lawmaking. The greater the degree to which workers mobilize the law, the more likely they are to win union organizing cases in the federal courts. However, the greater the degree to which employers are organizationally mobilized, the less likely it is that judicial outcomes will favor labor. The authors also find that legal precedent matters in judicial decision making. They conclude that class dynamics are important in judicial lawmaking. However, they also conclude that, to a degree, judicial decisions also remain autonomous from class dynamics

Trash Talk: The Supreme Court and the Interstate Transportation of Waste

Abstract: Americans generate more domestic waste than any other country in the world. In 1996, for example, we generated an estimated 200,000,000 tons of domestic waste, the equivalent of 875 kilograms per person. That same year, Japan generated an estimated 40,225,000 tons of domestic waste, averaging 288 kilograms per person, while neighboring Canada generated an estimated 12,600,000 tons of domestic waste, averaging 525 kilograms per person. This excessive generation of waste has yielded immense challenges for our state and local governments that must manage waste not only within their own jurisdictions, but also waste from outside their jurisdictions. Some state and local governments seek out waste from outside their state in order to generate tipping, or disposal, fees while other governments shun such waste, in fear of becoming the dumping ground of the nation. While state and local governments have been ordered by federal, state, and local laws to develop and implement policies aimed at the reduction and proper disposal of waste, current policy regarding the interstate transport of waste limits their ability to do so. Policy in this area has been shaped by the courts and their interpretation of the Commerce Clause of the U.S. Constitution. The Commerce Clause states that "The Congress shall have the power to regulate Commerce among foreign Nations, and among the several states, and with the Indian Tribes" (U.S. Constitution Article I, Section 8, Paragraph 3). In a series of five key cases, the Supreme Court has tied the hands of state and local governments, severely limiting their options in regulating waste. This column highlights these cases as well as the implications of these judicial decisions for public administrators. Back to the Future Current law concerning out-of-state waste stems largely from the 1978 U.S. Supreme Court case, City of Philadelphia v. New Jersey, 437 U.S. 617 (1978), where the Supreme court overturned a New Jersey law that limited the transportation of waste into that state. The Court maintained that the New Jersey law fell "squarely within the area that the Commerce Clause puts off limits to state regulation" (City of Philadelphia v. New Jersey, 628). Justice Stewart's opinion hinged upon an argument for the "dormant" commerce clause. The dormant commerce clause, a judicially created doctrine, has been utilized by the courts to strike down state legislation in conflict with national commerce policies, and is often evoked by the courts in instances when states unduly infringe upon interstate commerce.(1) In City of Philadelphia v. New Jersey, there were two issues of contention: Whether the interstate movement of waste consists of "commerce" within the meaning of the Commerce Clause, and whether the New Jersey state law limiting interstate transport of waste is an economic protectionist measure or a law directed at legitimate local concerns that has only incidental effects on interstate commerce. In response to the issue of whether the interstate movement of waste consists of commerce, the Supreme Court held that "all objects of interstate trade merit Commerce Clause protections; none is excluded" (City of Philadelphia v. New Jersey, 622). In a previous ruling on the case, the New Jersey Supreme Court found, in conjunction with several prior Supreme Court rulings, that states can prohibit the importation of some objects because they are not legitimate subjects of trade and commerce. However, in City of Philadelphia v. New Jersey, the Supreme Court found that the state court had misinterpreted previous case law: "In Bowman and similar cases, the Court held simply that because the articles' worth in interstate commerce was far outweighed by the dangers inhering in their very movement, States could prohibit their transportation across state lines. Hence, we reject the state court's suggestion that the banning of `valueless' out-of-state wastes by. …

Adjudication As Representation

Abstract: This Article sets forth an interpretive theory of adjudicative lawmaking according to which, under certain conditions, such lawmaking ensures constructive participation through interest representation and thus is not inherently nondemocratic. The author contends that the idea of ‘judicial activism,‘ courts deciding issues better left to political processes or substituting the personal ‘values‘ of judges for law, is based on the incorrect assumptions that courts are unconstrained and nonrepresentative. Instead, when adjudication operates in an archetypal way, it produces law in a manner similar to the parliamentary legislation process. Courts making law are constrained by the process of participatory decisionmaking--the production of judicial decisions through voluntary, self-directed debate among litigants. Moreover, adjudicative lawmaking occurs through the operation of interest representation--the binding of subsequent parties by precedent only to the extent that they are similarly situated to the original parties. The conditions necessary for adjudicative lawmaking to function democratically are that litigants participate to a significant degree in the production of binding decisions, that precedential decisions bind only future parties who are similarly situated to the parties to the original action, and that the conduct of the original litigants meet at least a threshold standard of adequacy. The author examines adjudicative lawmaking from the perspective of proceduralist and functionalist democratic justificatory theories and then demonstrates, using case law and current controversies, that a threat to adjudicative legitimacy arises when the potential binding effects of a decision extend beyond its particular facts. The author concludes that in our concern over judicial decisionmaking, we should monitor the decisionmaking processes used by courts to ensure that adjudication follows or simulates common law processes, thus rendering it democratically legitimate.

International Law and Education in a Minority Language

Abstract: The Statute of the International Court of Justice sets out three principal (and two subsidiary) sources of international law. They are treaties, customary international law as evidenced by the practice of countries accepted as law, general principles of law recognised by all countries, and as subsidiary sources, judicial decisions and the writing of “highly qualified publicists”. The literature on the international law of minority language education is thus not a primary source of the law, but it serves as both a subsidiary source and as a record of discussion of the primary sources. This chapter discusses the international law concerning the right to an education in a language that is not the majority language of the state providing the education. The definition of “minority language” used in this chapter is the language spoken by a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members — being nationals of the State — possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion, or language (Capotorti 1979).

The Limits of Law in Accomplishing Racial Change: School Segregation in the Pre-'Brown' North

Abstract: During the past forty years, courts have been widely celebrated as important agents of racial change, with "Brown v. Board of Education" as the paradigmatic example of the ability of the judiciary to foster racial progress in the face of significant cultural and political opposition. Yet in recent years, numerous scholars have questioned the ability of courts to function as a significant force for racial progress without broad political and cultural support. Some of these scholars have concluded that the traditional emphasis on the role of the courts - especially the "Brown" Court - in securing racial gains are overstated and that certain aspects of racial reform, such as southern school desegregation, did not take place in this country until the elective branches of government embraced the desegregation agenda in the mid-1960s. These scholars suggest that courts - even the Supreme Court - are considerably more limited in their ability to effect social reform in the absence of significant popular support than we have previously imagined. Other scholars, associated with the critical race theory movement, go even further and conclude that the inherent conservatism of courts inhibits their willingness to produce meaningful change on behalf of racial minorities. Both groups of scholars suggest that courts alone are unable to bring about significant racial change and that political activism and private initiatives are more promising means of ensuring racial gains. While the issue of the ability of courts to effectuate racial change has received considerable scholarly attention in recent years, less attention has been paid to the ability of law more broadly defined - as manifest in legislative and executive actions as well as court decisions - to foster social reform. The capacity of statutory law to promote social change appears obvious, because statutes presumably reflect the majoritarian support that makes the underlying change possible. Yet statutory enactments that seek to reverse longstanding social and cultural patterns - particularly those associated with race - often fail to achieve their desired effect. Some statutes contain inadequate enforcement mechanisms, others do not reflect a real commitment to racial reform, while others fail due to significant cultural and political opposition. This Article seeks to broaden the conversation about law and racial change by examining the interplay between legal rules - as manifest in both court decisions and statutes - and racial progress in the context of the campaign against school segregation in northern states prior to the Supreme Court's decision in "Brown v. Board of Education." In the North, virtually every state prohibited school segregation by statute during the last three decades of the nineteenth century, and the vast majority of state courts, when called upon, enforced those statutes by requiring school integration. With this type of "legal" support for pupil mixing, one might expect to find thoroughly desegregated northern school systems. Indeed, many observers have - mistakenly - interpreted the enactment of the extensive state anti-segregation legislation as evidence that officially sanctioned school segregation ended in the North as of the end of the nineteenth century. Yet despite this legal support for school integration, government sponsored school segregation - such as the assignment of black children to separate "colored" schools or classrooms - persisted in open defiance of state law in many northern communities until the late 1940s and early 1950s. This Article explores the reasons for this dissonance between legal rule and social reality and seeks to provide insight into the broader question of how law affects racial change. This Article focuses primarily on desegregation efforts in four states: New Jersey, Pennsylvania, Ohio, and Illinois. The focus on these states is deliberate. Each of these states abolished segregated schools by statute during the 1870s and 1880s and in each, the vast majority of judicial challenges seeking to enforce those statutes succeeded. Yet despite unambiguous legislation that mandated integrated schools and a court system prepared to uphold these legislative prohibitions, many local school districts in each of these states operated segregated schools in open defiance of state law until the early 1950s. Although other northern states also enacted anti-segregation legislation during the nineteenth century and in some instances failed to enforce that legislation, it was in these four states, because of their large black populations and their proximity to the South, that the dissonance between legal rule and social reality was the greatest. The campaign to desegregate northern schools exposes the difficulties of legal rule and judicial decision forcing racial change. Just as the "Brown" decision failed to desegregate southern schools during the 1950s and early 1960s until both the President and the Congress committed themselves to racial desegregation with the enactment of the Civil Rights Act of 1964, so court decisions and statutes could not eliminate officially sanctioned northern school segregation during the pre-"Brown" era until a political environment developed in which majoritarian interests were served by desegregation. The enactment of the anti-segregation legislation had been an important first step in the campaign against state-mandated segregation in northern schools, but the campaign would need seventy years of cultural and political change to achieve success. And even then, that success, as has been true of so many racial "gains" in this country's history, proved somewhat hollow as it left untouched the burgeoning growth of northern residential segregation.

What's a Reasonable Woman to Do? The Judicial Rhetoric of Sexual Harassment

Abstract: The aim of this essay is to interrogate the rhetoric of judicial opinions in the context of sexual harassment disputes. I pay particular attention to six appeals and Supreme Court opinions, whose factual findings, outcomes, and legal rationales are summarized in the Appendix. I have chosen these particular cases because they allow me to examine two especially interesting concepts unique to hostile environment claims in sexual harassment law: the "reasonable woman" standard of review, and the curious legal category "welcome harassment."' "Welcome harassment," as Judge Richard Posner pointed out in his 1994 opinion in Carr v. Allison Gas Turbine Division (see Appendix), is obviously an oxymoron (1008). That its classification as such will not allow us to summarily dismiss the possibility of its legal existence is made clear by a strenuous dissent to Posner's opinion arguing that welcome harassment was recognized by precedent in the court's district (1013). The dissent could well have referred to precedent in many other districts; the existence of welcome harassment is implied by numerous judicial opinions referring to its logical counterpart, "unwelcome harassment" (my emphasis). Though the concept of "welcomeness" is of great importance in sexual harassment law and is frequently analyzed, the creation and derivation of "welcome harassment" has itself been the subject of very little notice or commentary. The "reasonable woman" standard, in marked contrast, has received a great deal of attention since its use in a majority opinion in Ellison v. Brady in 1991 (see Appendix). Relying on the dissent to a 1986 case, Rabidue v. Osceola Refining Co. (see Appendix), the Ellison court held that the reasonable woman standard was more appropriate than the "reasonable person" standard derived from tort law (itself a replacement of the traditional "reasonable man" standard) to determine whether behavior directed toward women creates a hostile work environment and thereby constitutes harassment. Decried by some as signaling a feminist "attack on all rational discourse" (Letwin 34) and hailed by others as a way to allow justices to "borrow" (Brenneman 1301) the perspective of the "usual victim" (Rabidue 626) of sexual harassment, the reasonable woman standard has nevertheless so far failed to revolutionize this area of law. As I examine these two terms-welcome harassment and the reasonable woman-I wish to make two major claims. First, I argue that a

Continuity and Judicial Creativity - Some Observations

Abstract: The occasions for judicial law-making have increased and the reasoning processes employed by the courts to justify their decisions have changed. In the development of the common law, the legitimacy of the courts law-making function is enhanced by the power of democratically elected Parliaments to overturn judicial decisions.

How Can Infringements of the Constitutional Rights of Aboriginal Peoples Be Justified

Abstract: On August 21, 1996, the Supreme Court of Canada handed down three decisions on Aboriginal fishing rights in British Columbia: R. v. Vander Peet, R. v. N.T.C. Smokehouse, and R. v. Gladstone. These decisions, already known as the Vander Peet trilogy, were followed by a decision on Aboriginal self government in relation to high-stakes gambling in Ontario, R. v. Pamajewon, released the next day. Then on October 3, 1996, the Court handed down two more decisions, this time involving Aboriginal fishing rights in Quebec: R. v. Adams and R. v. Cote. All these decisions deal with section 35(1) of the Constitution Act, 1982, and the nature of the Aboriginal rights which that section recognizes and affirms. Together, these six decisions are probably the most important pronouncements on Aboriginal rights the Supreme Court has made so far. They are going to have a profound impact on the Aboriginal peoples, and will influence not only future judicial decisions but negotiations for the resolution of Aboriginal claims as well.

Reasoning in Islamic Law: Part One

Abstract: The main purpose of this article is to offer a detailed and clear analysis of the different aspects of the process of reasoning to forrn legal and judicial opinions and rulings according to the principles and rules of Islamic Law (SharRah). The core of Islarnic legal science (jurisprudence: fiqh) consists of legal opinions which are supported by one or more of the primary or subsidiary sources (masadir) or proofs (adillah) of {he Shar

The Limits of Law in Accomplishing Racial Change: School Segregation in the Pre-Brown North

Abstract: During the past forty years, courts have been widely celebrated as important agents of racial change, with "Brown v. Board of Education" as the paradigmatic example of the ability of the judiciary to foster racial progress in the face of significant cultural and political opposition. Yet in recent years, numerous scholars have questioned the ability of courts to function as a significant force for racial progress without broad political and cultural support. Some of these scholars have concluded that the traditional emphasis on the role of the courts - especially the "Brown" Court - in securing racial gains are overstated and that certain aspects of racial reform, such as southern school desegregation, did not take place in this country until the elective branches of government embraced the desegregation agenda in the mid-1960s. These scholars suggest that courts - even the Supreme Court - are considerably more limited in their ability to effect social reform in the absence of significant popular support than we have previously imagined. Other scholars, associated with the critical race theory movement, go even further and conclude that the inherent conservatism of courts inhibits their willingness to produce meaningful change on behalf of racial minorities. Both groups of scholars suggest that courts alone are unable to bring about significant racial change and that political activism and private initiatives are more promising means of ensuring racial gains. While the issue of the ability of courts to effectuate racial change has received considerable scholarly attention in recent years, less attention has been paid to the ability of law more broadly defined - as manifest in legislative and executive actions as well as court decisions - to foster social reform. The capacity of statutory law to promote social change appears obvious, because statutes presumably reflect the majoritarian support that makes the underlying change possible. Yet statutory enactments that seek to reverse longstanding social and cultural patterns - particularly those associated with race - often fail to achieve their desired effect. Some statutes contain inadequate enforcement mechanisms, others do not reflect a real commitment to racial reform, while others fail due to significant cultural and political opposition. This Article seeks to broaden the conversation about law and racial change by examining the interplay between legal rules - as manifest in both court decisions and statutes - and racial progress in the context of the campaign against school segregation in northern states prior to the Supreme Court's decision in "Brown v. Board of Education." In the North, virtually every state prohibited school segregation by statute during the last three decades of the nineteenth century, and the vast majority of state courts, when called upon, enforced those statutes by requiring school integration. With this type of "legal" support for pupil mixing, one might expect to find thoroughly desegregated northern school systems. Indeed, many observers have - mistakenly - interpreted the enactment of the extensive state anti-segregation legislation as evidence that officially sanctioned school segregation ended in the North as of the end of the nineteenth century. Yet despite this legal support for school integration, government sponsored school segregation - such as the assignment of black children to separate "colored" schools or classrooms - persisted in open defiance of state law in many northern communities until the late 1940s and early 1950s. This Article explores the reasons for this dissonance between legal rule and social reality and seeks to provide insight into the broader question of how law affects racial change. This Article focuses primarily on desegregation efforts in four states: New Jersey, Pennsylvania, Ohio, and Illinois. The focus on these states is deliberate. Each of these states abolished segregated schools by statute during the 1870s and 1880s and in each, the vast majority of judicial challenges seeking to enforce those statutes succeeded. Yet despite unambiguous legislation that mandated integrated schools and a court system prepared to uphold these legislative prohibitions, many local school districts in each of these states operated segregated schools in open defiance of state law until the early 1950s. Although other northern states also enacted anti-segregation legislation during the nineteenth century and in some instances failed to enforce that legislation, it was in these four states, because of their large black populations and their proximity to the South, that the dissonance between legal rule and social reality was the greatest. The campaign to desegregate northern schools exposes the difficulties of legal rule and judicial decision forcing racial change. Just as the "Brown" decision failed to desegregate southern schools during the 1950s and early 1960s until both the President and the Congress committed themselves to racial desegregation with the enactment of the Civil Rights Act of 1964, so court decisions and statutes could not eliminate officially sanctioned northern school segregation during the pre-"Brown" era until a political environment developed in which majoritarian interests were served by desegregation. The enactment of the anti-segregation legislation had been an important first step in the campaign against state-mandated segregation in northern schools, but the campaign would need seventy years of cultural and political change to achieve success. And even then, that success, as has been true of so many racial "gains" in this country's history, proved somewhat hollow as it left untouched the burgeoning growth of northern residential segregation.