Judicial opinion

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

Women and the Law: Leaders, Cases, and Documents

Abstract: A definitive overview of court decisions and legislative victories in the fight for gender equality in U.S. history. Women and the Law: Leaders, Cases, and Documents chronicles the evolution of women's rights from the Revolutionary War to the present day. Spanning the gamut of legal concepts, court decisions, justices, and organizations, this extensive reference also explores a broad range of issues from sexual harassment and spousal abuse to the gender gap in voting and the custody challenge of Baby M. Profiles of Susan B. Anthony, Ruth Bader Ginsburg, Anita Hill, Betty Friedan, and other activists explore their roles in bringing the issue of equal rights for women to the forefront of U.S. politics. A thorough review of key legislative acts, including the 19th Amendment, the Equal Pay Act, the Pregnancy Discrimination Act, Title IX of the Educational Amendments, and more recent rulings like the Violence against Women Act of 1994 reveals the successes, failures, and tenacious efforts of those who are fighting to achieve gender equality in the United States. * A-Z entries ranging from legislation such as Title IX, the Equal Pay Act, and the failed Equal Rights Amendment to pioneers such as Susan B. Anthony, Ruth Bader Ginsburg, and Betty Friedan * An introductory chapter presenting key concepts and issues that pertain to women in U.S. law * A table of cases that features more than 50 key judicial decisions * Chronological coverage of the history of U.S. laws pertaining to gender * An appendix of key original documents in the struggle for equality * Photographs of many important pioneers of women's rights

Me the People

Abstract: This essay is a contribution to a symposium on Randy Barnett’s book, Our Republican Constitution: Securing the Liberty and Sovereignty of We the People (2016). The essay focuses on Barnett’s treatment of courts. On the one hand, Barnett complains, judicial decisions of the past produced a dangerous consolidation of governmental power and truncated rights. On the other hand, fixing the problem — restoring a “republican” constitution — requires highly motivated judges to keep power in check and promote rights. These two impulses are in tension and, at least without additional work on both the diagnostic and remedial sides, appear incompatible. The root of the tension is Barnett’s failure to perceive the inherent limits to judicial recognition of expansive constitutional rights when judicial power itself is consolidated. Barnett celebrates dispersed legislative and executive power as a means for states and localities to adopt different regulatory programs, with variation triggering citizen foot voting. He complains that such experimentation has become more difficult with legislative and executive powers increasingly concentrated at the national level because the end result is a one-size-fits-all regulatory scheme. Yet Barnett does not extend the same analysis to the courts, where a one-size-fits-all judicial scheme is equally problematic for Barnett’s constitutional vision. Consolidated judicial power, where ultimate authority rests in the Supreme Court of the United States, does not serve well to generate expansive rights for “We the People.” It is even less suited to Barnett’s own individualistic version of rights — a sort of “Me the People” — in which, he says, each of us is sovereign and courts exist to vindicate our own personal liberties. Barnett’s suggestion that courts really will get things right once they are stacked with originalist judges (and a few constitutional amendments are ratified) is a hypothesis unlikely to be tested anytime soon. In the interim, Barnett’s program could find hope in unexpected places: the jurisprudential approaches of Justices John Paul Stevens and Sonia Sotomayor point to a role for courts that would better promote experimentation and protect more securely individual rights along the lines Barnett himself advocates.

Borrowed ideas: on the impact of American scholarship on Indian law

Abstract: Modern Indian law is characterized by the extent to which it has borrowed from Western, particularly English and American, sources. The incidence of this borrowing is manifest in the statutes that comprise India's codified laws, in judicial decisions andin the form and content of Indian scholarship on law. What is the nature of this borrowing? An American observer has suggested that Western 'modern' law has transformed India's 'traditional' legal system.' This is partly an attempt at analysis and partly a discouraging warning to traditionalists who were attempting the aborted restoration of Indian law.2 There is no doubt that modern adjudicating and other institutions are both abundant in their existence as well as their use. The normative development of Indian law has been centrally placed in the hands of legislatures and courts in a way in which it never was before. Lawyers and judges abound as custodians of the modern law, from which they derive power, status and fortune. But are most of these innovations just formal? Did Indian society accept modern Western law as a 'rational' entity, or did it accept, adapt and transform it in a manner that was peculiarly Indian? Is-as some American scholarship suggests-India one of those cultures which easily blend 'tradition' and 'modernity'?3 If so, to what end? Or, should we adopt the somewhat cynically expressed but more incisive comments of an English authority on Indian law that-

Missing in action: practice, paralegality, and the nature of immigration enforcement

Abstract: U.S. immigration control is typically understood in terms of enforcement practices undertaken by federal officers guided by legislation and court decisions. While legislation and court opinions are important components of the immigration control apparatus, they do not adequately account for immigration control ‘on the ground.’ To explore this problem, we advance the concept of paralegality, the practices and operations that constitute a dynamic system of actions and relationships that are not simply linear applications of legislation or judicial decisions but may in fact extend or counter these texts. We illustrate the importance of paralegality by reconstructing the evolution of the §287(g) and Secure Communities programs, both of which have shape-shifted dramatically since their inception. Our account of immigration control highlights the problem practice poses for law, proposes a theoretical alternative to textual-law-centric research on immigration and law enforcement, and contributes to schol...

Sharpening the Dialogue Debate: The Next Decade of Scholarship

Abstract: The first part of this commentary examines the roles of coordinate construction in which legislatures act on their own interpretation of the constitution, second look cases in which the courts judge the constitutionality of a legislative reply to a judicial decision, and various constitutional remedies. The second part examines some differences in emphasis between the author's approach to dialogue and that taken by Hogg and his co-authors with respect to the justification of the judicial role in the dialogue, the relation between Charter dialogue and common law constitutionalism, and the proper interpretive approach to section 7 of the Charter. Three areas that may be a productive focus for the next decade of scholarship about institutional dialogue are outlined. They involve comparative studies, dialogue in the post 9/11 environment and increased study of the legislative role in dialogue.