Showing papers on "Majority opinion published in 1980"

Case selection in the United States Supreme Court

Abstract: For decades the Supreme Court has received more requests for review than it can possibly grant; it now rejects more than ninety percent of the petitions which fulfill jurisdictional requirements. Consequently, the process by which the justices select cases must be recognized as one of the most important aspects of the Court's work. But because it is hidden from public view and proceeds by secret ballot, the case-selection process has never been thoroughly analyzed. This concise and accessible study provides an intimate view of the Court's case-selection process through an analysis of the docket books and other papers of Justice Harold H. Burton, who kept scrupulous records of the Court's work from 1945 to 1957. In her analysis of these invaluable records the only records of case-selection votes made public since the advent of discretionary review in 1925 Provine provides two perspectives on the problematic issue of judicial motivation in case selection. The first perspective is an institutional one in which the Court is treated as the unit of analysis: the second is personal, in which differences among decision makers are the focus of analysis. Provine suggests that judicial role perceptions go far to explain both agreement and disagreement in case selection. She also considers the impact of the process upon litigants, since the system seems to favor petitioners with litigation expertise, especially the U.S. government. Yet, she claims, the secrecy of case selection fosters the popular misperception that any worthwhile case can be appealed "all the way to the Supreme Court." The Court thus maintains its image as a forum equally available to all litigants."

The Supreme Court and abortion: 2. Sidestepping social realities.

Abstract: Few social policy issues equal abortion in inciting acrimony and bitterness. Carrying these issues to the courts has done little to reduce polarization or allay emotions, and continuing litigation has placed the judicial system in the center of protracted social controversy. The five-to-four decision of the Supreme Court in Harris v. McRae-declaring that the Hyde Amendment restricting reimbursement for medically necessary abortions is constitutional-will only exacerbate the debate. Perhaps in anticipation, the majority opinion noted that "It is not the mission of this Court or any other to decide whether the balance of competing interests reflected in the Hyde Amendment is wise social policy." But it is difficult to read the majority view, and the various dissents, and still believe that this deeply divided Court has successfully avoided the policy battle. Neither broad social criteria nor more narrow medical judgments permit federal funding of abortion under the Hyde Amendment. States, however, retain the option to include abortion under the program using their own revenues. Since federal law, in my judgment, is misguided, this article focuses on why states should include abortion as a Medicaid service. My major purpose here is to examine issues deemed insufficiently compelling by the Court to its decisionwhether the types of restrictions encompassed by the Hyde Amendment are sound social policy. Although the Supreme Court decision supersedes the Dooling opinion in the Federal District Court, I refer to aspects of both in considering policy. Medicaid-a federal-state cost-sharing program to fund medical care for the medically indigent-is intended to provide recipients with a broad range of medical

Forum non conveniens

Abstract: Competent jurisdiction of a South African court linked to the subject of the decision is one thing, but the choice between a South African court and a foreign court is another.

Equality before the Law in the Supreme Court of Canada: A Case Study

Abstract: The twentieth anniversary of the enactment of the Canadian Bill of Rights is being celebrated at a time of great political uncertainty in Canada. The fundamental structure of Canadian federalism, if not its very survival, is the subject of heated debate. Much of the debate revolves around the aspirations of the provinces to gain a larger measure of legislative authority over economic and cultural matters, and their desire to have a greater input into the governing process at the federal level. Within the context of this debate, the role of the Supreme Court of Canada is a crucial element. This article is available in Osgoode Hall Law Journal: https://digitalcommons.osgoode.yorku.ca/ohlj/vol18/iss3/2 EQUALITY BEFORE THE LAW IN THE SUPREME COURT OF CANADA: A CASE STUDY By MARC EMMETT GOLD*

Conventional Wisdoms Don't Die Easily: Judicial Career Patterns and the Context of Majority Opinion Assignment

Abstract: I N A RECENT ISSUE of this Journal, Professor Elliot Slotnick attempted empirically to assess related conventional wisdoms regarding the "judicial life cycle."' According to these conventions, new justices on the United States Supreme Court are granted an "apprenticeship" wherein they are accorded a lighter work load, while those at the other end of the judicial life cycle are given a similar lightened work load. Together these views leave the middle career justice to bear the brunt of the Court's labor. Slotnick's effort to test this hypothesis is problematic. As his operational measure of work load, Slotnick relies on majority opinion assignments to individual justices and for his judicial life cycle measure, he uses year of service.2 Slotnick calculates the proportion of opinions assigned to all justices in the first year through the last year of service and does so for the entire set of justices spanning 53 years from 1921 to 1973. Ignoring when a justice served or with whom he served, Slotnick aggregates opinion assignment ratios by year of service and concludes that the conventional wisdoms are not

The Japanese Supreme Court and the Governance of Education

Abstract: A RECENT BENCHMARK DECISION by the Japanese Supreme Court Ahas opened a new chapter in the continuing controversy over the administration of postwar Japanese education. This celebrated case originated in Hokkaido in 1961 as a criminal suit against local teachers and sympathetic trade unionists charged with obstructing a junior high school test mandated by the Ministry of Education. It ended r aany years later as a review of the administrative structure of con:emporary Japanese education, particularly the role of the state in local education. Although the decision has yet to influence subsequent litigation, sufficient time has now elapsed to examine some of its consequences. The significance of this verdict derives not only from the provisions of the ruling itself-in themselves of great importance-but also from the many precedents established by the Court. First of all, the decision marks the High Court's initial judgment on the legality of the bitterly contested revisions of the administrative code enacted by the ruling conservative party shortly after the end of the American Occupation. Those revisions had fundamentally transformed the administrative statutes originally implemented by the American authorities as the very foundation for the democratic reformation of Japanese education. Secondly, until this decision, the various lower courts had treated the issue of teachers' rights essentially as a "labor relations" issue concerning the right to strike, to be judged in accordance with decisions affecting the rights of other civil servants. The Teachers' Union, however, has invariably grounded its defense in all cases on the autonomous rights of teachers. The High Court set legal precedence in this case by ruling on teacher's rights as an educational issue, sitting as an "education court."

Law and Opinion

Abstract: The battle for birth control was to be fought out through publications, debates and lawsuits.

JURY DECISION MAKING MODELS AND THE SUPREME COURT: THE JURY CASES FROM WILLIAMS v. FLORIDA TO BALLEW v. GEORGIA*

Abstract: This article analyzes recent U.S. Supreme Court decisions in cases relating to the size and unanimity of juries as an example of the use (and abuse) of social science by the Court in the realm of policy analysis. The four cases reviewed “cast an unflattering light on the U.S. Supreme Court's ability to integrate social science findings into public law.”

On Conventional Wisdoms, Context and Judicial Career Patterns: a Response to Professor Rathjen

Abstract: I HAVE READ WITH INTEREST Professor Gregory Rathjen's critique of my recently published study of judicial life cycle factors operating in the assignment of majority opinions. While the critique is well argued, I do not believe that it uncovers any "fatal" errors in my methods and/or findings and, in fact, would argue that it succumbs to some serious errors of its own. At bottom, my research is characterized as suffering from "conceptual" problems including the failure to view majority opinion assignment as a contextual act performed by Chief Justices who are severely constrained in their options. Rathjen's assertions are less than compelling on several distinct and independent grounds. First, in arguing that the Court's experiential configuration precluded the Chief Justice from paying much attention to apprenticeship in 43.4 percent of the terms under analysis, Rathjen has lumped together years one through five as "apprenticeship" years to arrive at his figure. Casting such a broad net to label "apprentice" justices, we should not be surprised that so many courts seemed so overly burdened by them. This is, however, an arbitrary designation which does not flow from my analysis and, in fact, appears to run counter to it. Thus, my own discussion of apprenticeship utilized such terms as "junior," "new," "first year," and "freshman" to identify such a jurist. To my knowledge, nobody has ever suggested as lengthy a time as five years for one's judicial apprenticeship and, in fact, when applied to my data the classification would categorize

Progressives and the Supreme Court: A Case for Judicial Reform in the 1920s

Abstract: (1980). Progressives and the Supreme Court: A Case for Judicial Reform in the 1920s. The Historian: Vol. 42, No. 3, pp. 419-436.