Judicial opinion

About: Judicial opinion is a research topic. Over the lifetime, 5300 publications have been published within this topic receiving 64803 citations.

From Roberts to Plessy: Educational Segregation and the "Separate but Equal" Doctrine

Abstract: The segregation era was a contradictory period in American legal history. For almost one hundred years, courts had the necessary language, the Fourteenth Amendment, needed to outlaw the institutional separation of African-Americans from European-Americans. Yet, the nation had to wait until 1954 when the U.S. Supreme Court in Brown v. Board of Education ruled that segregation deprived African-Americans of the equal protection of the laws, which had been guaranteed by the language of the Fourteenth Amendment.' In this decision, the separation of the races by law in public education was ruled to be unconstitutional. Education also served as the foundation of segregation as rulings on the legality of separate schools for African-Americans in the 19th Century resulted in the legal argument that was used to justify segregation: "separate but equal". Leonard Levy and Harlan Phillips in their influential article "The Roberts Case: Source of the 'Separate but Equal' Doctrine" wrote that the first judicial opinion that used the "separate but equal" doctrine was Roberts v. City of Boston in 1849. This decision by the Massachusetts Supreme Court upheld segregated public education in Boston, Massachusetts and its reasoning was utilized by many state courts to uphold educational segregation. Moreover, Roberts was used as the leading precedent by the Plessy majority to nationally institutionalize "separate but equal".2 Despite the influence of their argument, Levy and Phillips never demonstrated exactly how state courts utilized and modified the Roberts ruling nor did they focus on how the Fourteenth Amendment affected the logic used in the "separate but equal" doctrine. This study attempts to fill that void. Boston's segregated school system was originally not established by whites, but rather by the growing number of free African-Americans settling in the city. An independent school for African-Americans was first established in 1800. The Boston Public School Committee annexed the institution in 1812 and began to assign every African-American grammar school-aged child to the school.3 Another all-black school was built in 1835.

Legal Techniques for Rationalizing Biased Judicial Decisions: Evidence from Experiments with Real Judges

Abstract: Judges rarely reveal their real reasoning in their opinions when they are influenced by factors that they know they should not consider. The natural next question is how, when a judge is improperly influenced, he or she reasons to justify a biased decision. In a set of experiments using incumbent Chinese judges, we first replicated the findings of previous studies that showed judges can be influenced by extra‐legal factors. More importantly, we showed that judges may employ a range of legal techniques to rationalize decision biases: they interpret legal standards and legal concepts strategically, finesse the applicability of law, infer or deny causation and foreseeability, and draw different conclusions from facts. Our findings provide a more realistic understanding of how judges behave, and cast doubt on reasoned elaboration as a guarantee of judicial transparency and trustworthiness.

Judicial Hostility Toward Labor Unions? Applying the Social Background Model to a Celebrated Concern

Abstract: Brudney, Schiavoni, and Merritt address an important debate dividing lawyers and political scientists: To what extent do extradoctrinal factors such as political party, gender, and professional experience influence judicial decisionmaking? They analyze an area of law, decisions interpreting the National Labor Relations Act, that has long been characterized by assertions of judicial bias. By including every federal court of appeals decision applying the Act over a seven-year period, and controlling for both deference to the administrative agency and differences among issues arising under the Act, the authors are able to identify previously undetected influences on judicial decisionmaking. These include a strong interaction between gender and political party, the influence of prior experience representing management clients under the Act, and associations based on race, religion, and educational background. At the same time, the authors place those influences in context, suggesting the complex interweaving of doctrine and personal background in shaping judicial decisions.

Carl Schmitt and Constituent Power in Latin American Courts: The Cases of Venezuela and Colombia

Abstract: If there is a concept in modern constitutional theory that is unlikely to be found in a judicial opinion it is that of constituent power. And if there is a jurist not likely to be treated favourably by a court in a constitutional democracy, it is Carl Schmitt. Courts, and particularly courts in constitutional democracies, are close to be the exact opposite of the constituent power: they are called to limit political power, to put into practice the constraints placed by constitutionalism both in governments and their peoples. Schmitt, one of the most famous 20th century theorists of constituent power, was not only directly associated with National Socialism during the 1930's, but his theory of the constituent subject pointed toward an unlimited and uncontrollable sovereign, a political will whose decisions cannot be limited by any form of positive law. Perhaps more importantly, he maintained that constituent power could be exercised at any moment after a constitution is in place, an idea that, at least at first glance, appears as radically alien to the activity of deciding cases according to the established law. Latin American courts, however, represent an important exception to this rule. It is not only common for courts in this region to discuss in detail the theory of constituent power, but also to explicitly adopt the Schmittian conception of constituent power as surviving “alongside and above” the Constitution. This paper will examine two key judicial opinions from Venezuela and Colombia, which suggest that the theory of constituent power, as conceived by Schmitt, should not be summarily rejected as an invitation to absolute and arbitrary rule. The first of these decisions, Opinion No. 17 of the Supreme Court of Justice of Venezuela (1999), provides an example of the former in the context of the exceptional moment of constitution-making. There, the court declared that 'the people' was not bound by the amendment procedure contained in the constitution (which only applied to Congress in the exercise of the ordinary power of constitutional reform), and could therefore alter the constitution through other, constitutionally unspecified procedures. The second decision, Opinion C-551/03 of the Colombian Constitutional Court (2003), put into practice Schmitt's theory of implicit limits to constitutional reform, ruling that the constituted powers (that is, the executive and legislative powers) could not engage use the constitution’s amendment procedure to introduces changes so fundamental that amount to the creation of a new constitution (something that can only be done by the bearer of the constituent power). These decisions show that the Schmittian conception of an unlimited and ever present constituent power can be deployed by courts both as an enabling and limiting force. That is, as a justification for the idea of a legally unbound popular will, but also as a way of limiting political power in profound ways.

The Equal Access Act: â Not the Access for All Students Except Gay Students Actâ : Federal Judicial Decisions and Their Implications for School Systemsâ Policies and Practices Regarding Student Requests to Establish Gay Straight Alliance Clubs in Public Schools

Abstract: ................................................ii Dedication...............................................iv Acknowledgements..........................................v List of Tables..........................................xii Preface................................................xiii Chapter I.................................................