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Showing papers on "Majority opinion published in 1989"


Journal ArticleDOI
TL;DR: The authors found little correlation between state opinion and party control of the state legislature or between party control and state policy when comparing states in the United States and found that state opinion influences the ideological positions of state parties, and parties' responsiveness to state opinion helps to determine their electoral success.
Abstract: When comparing states in the United States, one finds little correlation between state opinion and party control of the state legislature or between party control and state policy. Although these low correlations seeming to indicate that partisan politics is irrelevant to the representation process, the opposite is true. State opinion influences the ideological positions of state parties, and parties' responsiveness to state opinion helps to determine their electoral success. Moreover, parties move toward the center once in office. For these reasons, state electoral politics is largely responsible for the correlation between state opinion and state policy.

279 citations


Journal ArticleDOI
TL;DR: It is shown that the Court's decision did affect public attitudes but not as previous work would predict, and a theory resting on interpersonal influences to explain these results is developed, arguing that the social interpretation of events drives the differing outcomes.
Abstract: The United States Supreme Court has a historical role as a “republican schoolmaster,” inculcating virtues in the citizenry. The role as teacher to the republic also serves the interests of the Court. As the “weakest branch,” the Supreme Court needs public support if its decisions are to be effective. We investigate the Court's ability to win popular support for its rulings, specifically in the case of Roe v. Wade. The analysis shows that the Court's decision did affect public attitudes but not as previous work would predict. While support for abortions to protect health increased as a result of the Court's decision, the public became more polarized over “discretionary” abortions. The puzzle is what process can account for these disparate reactions. We develop a theory resting on interpersonal influences to explain these results, arguing that the social interpretation of events drives the differing outcomes. This theory is then tested against a purely psychological alternative. The closing discussion considers how these results can be extended to the general problem of public decisions and popular responses, including presidential actions and the influence of the media.

213 citations


Book
01 Jan 1989

191 citations


Journal ArticleDOI
TL;DR: In this article, the U.S. Supreme Court is conceptualized as a political institution whose decisionmaking behavior over time can be effectively explained and predicted, and a four-variable model is constructed as a means of better understanding the Court's policy outputs in criminal justice disputes.
Abstract: This study conceptualizes the U.S. Supreme Court as a political institution whose decisionmaking behavior over time can be effectively explained and predicted. A four-variable model is constructed as a means of better understanding the Court's policy outputs in criminal justice disputes. This model represents Court decisions as a function of the institution's political composition, the generally stable attitudes of its members, its policymaking priorities, and the political environment. The results indicate that the model has substantial explanatory and predictive capacity when applied to Supreme Court criminal rights cases from 1946 to 1986.

47 citations




Journal ArticleDOI
31 Mar 1989-Science

29 citations


Journal ArticleDOI
TL;DR: This article investigated the relationship between argumentation advanced in the briefs and oral argument of four Supreme Court cases and the reasoning proffered by the Court in the opinion justifying the decisions of the judges.
Abstract: This study investigates the relationship between argumentation advanced in the briefs and oral argument of four Supreme Court cases and the reasoning proffered by the Court in the opinion justifyin...

27 citations


Journal ArticleDOI
TL;DR: This article examined the effects of age, generation, and situation on Japanese public opinion on foreign and defense policy and found that majority opinion is sceptical about the merits of departures from the status quo, buttressed by countervailing minorities that support opposed directions of change.
Abstract: Japanese public opinion on foreign and defense policy warrants longitudinal analysis as an extreme case of change and lack of interest in international diplomatic and military activism. Data for the post-Occupation period through 1984 are examined for the effects of age, generation, and situation; more recent aggregate poll data are used to check for recent changes. Little support appears for strong, ongoing shifts from international passivism to activism, alignment to equidistance, dependence to autonomy, military minimization to effort, or lack of guiding principles. Generational effects are very modest after the early 1970s; age-group differences have more continuing importance. Majority opinion is sceptical about the merits of departures from the status quo, buttressed by countervailing minorities that support opposed directions of change.

25 citations





Journal ArticleDOI
TL;DR: For instance, the authors argues that despite periodic Court-curbing efforts in Congress, the Court's supporters have usually blocked efforts to overturn specific rulings or to limit the court's appellate jurisdiction.
Abstract: VAILABLE research offers strikingly different images of the Supreme Court's success as a policy-maker. On one hand, some accounts depict the Supreme Court as a powerful policy-maker, whose rulings are rarely overturned. Only six to nine Constitutional amendments have overturned specific Court rulings (Abraham 1980: 351-58; Library of Congress 1973: 1789-97, 1983: S332-33). Despite periodic Court-curbing efforts in Congress (Nagel 1965; Handberg and Hill 1980), the Court's supporters have usually blocked efforts to overturn specific rulings or to limit the Court's appellate jurisdiction (Adamany and Grossman 1983; Schmidhauser and Berg 1972). Indeed, several unpopular rulings, such as the school prayer decisions (Weissberg 1976: 121-26) have prevailed for long periods of time. Still other accounts, however, challenge this image of a uniformly successful Court. Several authors argue that Congress often revises the Court's statutory construction (Dahl 1957; Harvard Law Review 1958; Handberg and Hill 1980; Krislov 1965: 143; Murphy 1962; Nagel 1969; Pritchett 1961; Stumpf 1965; Ulmer 1960). Other authors contend that the Court seldom successfully defies Congress and mass public opinion (Dahl 1957; Ulmer 1960). Many accounts provide instances of rulings which were ignored or reinterpreted by lower federal or state courts (Harvard Law Review 1954; Johnson 1979; Murphy 1959; Sheldon 1974: 197), by administrative agencies (Shapiro 1968), or by local officials (Barth 1968; Becker 1969; Becker and Feeley 1973; Birkby 1966; Canon 1974; Dolbeare and Hammond 1971; Goldman and Jahnige 1985: 221-22; Patric 1957; Wasby, D'Amato, and Metrailer 1977). The Supreme Court itself may also overrule, erode, "distinguish," or otherwise abandon its own rulings (Blaustein and Field 1958; Burnet v. Coronado Gas and Oil Co., 1932; Douglas 1949; Library of Congress 1973, 1983; Murphy 1972: 146-63).

Journal ArticleDOI
TL;DR: In this paper, the authors focused a great deal of attention on the Supreme Court and the behavior of its members, but despite this attention, analysts have differed as to the relative influence of the factors justices rely upon when making their decisions.
Abstract: Students of the judiciary have long been concerned with the factors that contribute to decision-making at the individual and institutional levels. In particular, analysts have focused a great deal of attention on the Supreme Court and the behavior of its members. Despite this attention, analysts have differed as to the relative influence of the factors justices rely upon when making their decisions. Even the courses taught in a standard political science undergraduate curriculum send mixed signals about these factors to students. Basic constitutional law courses tend to overestimate the role of doctrinal interpretation and precedent and underestimate the impact of the values and attitudes of the Court's members. Courses on the judicial process and politics err in the opposite direction. When the decision-making literature is viewed as a whole, five basic determinants of judicial decisions emerge: the background of the justice (Tate 1981), the justice's attitudes and values (Rohde and Spaeth 1976), the dynamics inherent in small-groups (Murphy 1964; Woodward and Armstrong 1979), the member's conception of the role of the Court (Howard 1977), and the impact of external stimuli (Casper and Posner 1974). Some of these variables can be measured, but some are very difficult to gauge. As a consequence, analysts cannot accurately assess the relative impact of these five factors upon the individual's decision.

Journal ArticleDOI
TL;DR: In this article, the authors discuss the courts' adoption of the limited publication plans and analyzes the methods used by the courts to discourage the use of unpublished opinions, and discuss the results of a survey conducted to determine if, and how, government litigants some
Abstract: Since 1976, every federal appellate court has adopted rules that limit the publication of opinions.1 As a result, only a minority of the federal courts of appeals publish even half of their decisions on the merits.2 Although withholding opinions from publication is meant to reduce or eliminate their applicability to litigation, the large body of unpublished decisions creates a variety of incentives for those litigants who have unusual access to these opinions to use them. The policies reflected by the publication plans do not anticipate these sorts of incentives. Although the rules adopted by the courts of appeals attempt to curtail litigant use of unpublished opinions, the controls do not work because these mechanisms restrict only certain uses usually of the most overt kind such as citation. Not only do the appellate rules fail to destroy the usefulness of unpublished opinions, they also exacerbate the advantages that the selective publication plans give frequent litigants. This article discusses the courts' adoption of the limited publication plans and analyzes the methods used by the courts to discourage the use of unpublished opinions. It also discusses the results of a survey conducted to determine if, and how, government litigants some

Journal ArticleDOI
TL;DR: The authors explored the relevance of studies of judicial policy-making in the United States to the decision-making of the Supreme Court of Canada under the Canadian Charter of Rights and Freedoms.
Abstract: This article explores the relevance of studies of judicial policy-making in the United States to the decision-making of the Supreme Court of Canada under the Canadian Charter of Rights and Freedoms. The article suggests that literature concerning the political legitimacy of judicial policy-making is minimally relevant, since a broad form of judicial review appears to be well established in Charter jurisprudence. The literature on institutional decision-making capacity has greater relevance, since the Canadian Court faces the same information-processing constraints as its American counterpart. The article concludes by suggesting that attempts to overcome problems of institutional capacity may produce additional questions of political legitimacy.


Posted Content
TL;DR: A detailed analysis of the United States Supreme Court's environmental decisions since 1976 supports this conclusion, concluding that despite its ostensible adherence to principles of judicial restraint, the Supreme Court has pursued a policy far less protective of the environment than the policy intended by Congress as discussed by the authors.
Abstract: The proper role of the courts in our system of government has long been the source of considerable controversy. The environmental law decisions of the United States Supreme Court illustrate the opportunities for, and implications of, the exercise of judicial activism and restraint in the regulatory context. Beginning in the late 1960s, Congress enacted a series of statutes intended, sometimes at the expense of economic efficiency, to prevent environmental degradation and to force improvements in pollution control technology. Perceiving administrative reluctance to implement these laws, the Supreme Court in the 1960s and early 1970s exercised its power broadly to ensure the realization of a pro-environment policy. This judicial activism was supported by commentators who argued that environmental interests were underrepresented in the regulatory process and that judicial intervention was necessary to counterbalance the powerful interests favoring industrial development at the expense of environmental protection. More recently, the Supreme Court appears to have retreated from this activism by emphasizing judicial restraint in its environmental decisions. Proponents of judicial restraint assume this shift has limited the Court’s power to implement its own policy preferences. Under this presumed limitation the Court’s decisions simply reflect the environmental policies of other governmental institutions. These recent Supreme Court decisions, however, reflect a trend seemingly at odds with congressional policy, reaching pro-development results far more often than pro-environment results. While this shift may reflect the exercise of judicial restraint toward governmental institutions other than Congress that have pursued a development-oriented policy, the shift also may be the result of the Court’s own pro-development policy. This latter possibility draws into question the traditional assumption that judicial restraint prevents the Court from implementing its own policy choices.This Article concludes that, despite its ostensible adherence to principles of judicial restraint, the Supreme Court has pursued a policy far less protective of the environment than the policy intended by Congress. A detailed analysis of the Court’s environmental decisions since 1976 supports this conclusion. To frame this analysis, the Article examines the concepts of judicial activism and judicial restraint and distinguishes between ‘institutional’ and ‘policy’ based activism and restraint. It then describes the institutional and policy implications of judicial oversight of the implementation of regulatory programs in general, and of environmental regulation in particular. The article then gathers the Court’s environmental law decisions and divides them into three broad categories: those concerning substantive review of environmental policy decisions made by federal agencies; those involving judicial remedies that supplement administrative enforcement of environmental statutes; and those addressing procedural opportunities for private parties to pursue environmental protection goals at the agency level and before the courts. Analysis of these decisions demonstrates a marked shift in the policy outcomes reached by the Court, and two reasons why the alleged exercise of judicial restraint has not prevented the Court from pursuing a pro-development policy. First, the Court has invoked principles of judicial restraint toward administrative agencies to justify decisions with pro-development consequences that are inconsistent with congressional intent. Second, the Court at times has engaged in judicial activism that produced pro-development results. In short, despite its emphasis on judicial restraint, the Supreme Court has been making environmental policy—a pro-development policy contrary to the pro-environment policy chosen by Congress.

Journal ArticleDOI
TL;DR: In Switzerland, no rule forbids the minority arbitrator from expressing his concerns about an award as discussed by the authors, provided the dissenting arbitrator abides by his "devoir de diligence" (general duty of diligence).
Abstract: an arbitrator whose views did not prevail may wish to let them be known, through a separate opinion which is either ‘dissenting’, (if he disagrees with the decision) or ‘concurring’ (if he approves of the decision but disagrees with its reasoning). Each is termed a ‘separate opinion’ to distinguish it from the ‘majority opinion’ reflecting the reasoning of the arbitrators whose views prevailed.1 In Continental Europe, dissenting opinions were traditionally unknown.2 They were perceived as being in conflict with the collegial nature of the courts; it was felt that a decision should be made by the court as a whole rather than be produced as the mathematical sum of the judges’ opinions. The notion of the ‘confidentiality of the deliberation’ (or secret du delibere ) was a corollary: judges could not discuss their deliberations, could not indicate if there was a dissent within their ranks and, a fortiori , could not dissent.3 In international arbitration, however, dissenting opinions appear with increasing frequency. As discussed below, Swiss law does not prohibit dissenting opinions; nor does it provide a framework for the minority arbitrator desirous of expressing his concerns about an award. Dissenting opinions are not forbidden in Switzerland provided the dissenting arbitrator abides by his ‘devoir de diligence’ (general duty of diligence). ### (a) No rule forbids dissenting opinions International arbitration in Switzerland is governed by the Federal Act on Private International Law (PIL) of 18 December 1987 which came into force on 1 January 1989. Article 182 of the PIL provides for the parties to determine the arbitral procedure, directly, indirectly or by submission to a procedural law. Should the parties fail to agree on the procedure, the arbitral tribunal will do so ‘to the extent necessary’; the only limit to the freedom of the parties (or the arbitrators) is that equal treatment must be …



Posted Content
TL;DR: The so-called Board of Commerce cases mark a watershed in the history of the Supreme Court of Canada as discussed by the authors, where the first time the Court decisions compromised a major federal regulatory initiative.
Abstract: The so-called Board of Commerce cases mark a watershed in the history of the Supreme Court of Canada. For the first time, Court decisions compromised a major federal regulatory initiative. This article analyzes those rulings and the circumstances surrounding them. Section I explores the considerations behind the creation of the Board of Commerce, reviews it responsibilities and traces its history up to March 1920, when the challenges to its jurisdiction and constitutional legitimacy were heard in the Supreme Court. Section II reviews Re Price Brothers and the Board of Commerce Reference, the two high court cases dealing with the Board. Section III suggests that the differing approaches evident within the Court in both decisions were reflective of broader philosophical and conceptual disagreement among the justices. Section IV describes how the Supreme Court rulings contributed to the demise of the Board and also discusses the Privy Council ruling on appeal. Section V briefly relates the Board of Commerce cases to the development of Supreme Court jurisprudence in the area of regulation during the later 1920s and the 1930s.

Journal ArticleDOI
13 Jul 1989-Nature
TL;DR: The US Supreme Courts ruling in the Missouri case has modified and narrowed the scope of Roe, weakened the basic trimester system created in Roe and left no other substitute structure in its place and will be a flood of anti-abortion legislation at the state level.
Abstract: The US Supreme Courts ruling in the Missouri case has modified and narrowed the scope of Roe. The majority opinion made it quite clear that they do not accept the logic used in Roe. The most significant indicator of this fact is their action to let the preamble of the Missouri law stand. In this preamble the law states that life begins at conception and that unborn children have all the rights privileges and immunities as other persons. The implications of this preamble are that even certain contraceptives could be outlawed. The IUD and the morning after pill both prevent implantation of a fertilized ovum. The Missouri law gives legal rights to fertilized ovums and as such an abortion and an IUD perform the same function. Even externally fertilized ovum from in vitro procedures would be granted rights under this law. Justice Stevens was the only member to view the preamble as a theological argument. In his dissenting opinion he wrote that the preamble was unconstitutional because it violated the First Amendment and was an obvious endorsement of the religious tenets of the Christian faith. The Court has thus weakened the basic trimester system created in Roe and left no other substitute structure in its place. The result of their action will be a flood of anti-abortion legislation at the state level. These restrictive laws will be supported by religious fundamentalist pressure groups and will be fought by womens rights pressure groups. Justice Blackmun wrote in his dissenting opinion that the result of this decision will be an increase in the suffering of poor and minority women who will be denied access to abortion services as well as an increase in the number of unwanted births that will lead to the suffering of mothers children and society. The pro-abortion groups feel that women will come forward and fight such legislation but the anti-abortion groups feel that they have more staying power and will win in the end.


Book
01 Jan 1989
TL;DR: The authors views the Supreme Court decisions as just part of the evolutionary process of constitutional interpretation, and views them as an evolutionary process that leads to the evolution of the legal system itself, i.e.
Abstract: Views Supreme Court decisions as just part of the evolutionary process of constitutional interpretation.

Journal ArticleDOI
15 Sep 1989-JAMA
TL;DR: It is argued that the prevention of unwanted pregnancy, not limiting access, is the way to reduce the abortion rate and physicians are urged to become involved in a public education campaign to further ACOG's goal of preventing unwanted pregnancies.
Abstract: THE SUPREME Court's decision in Webster v Reproductive Health Services has little immediate impact on physicians' practices but is certain to have dramatic long-range effects. The actual ruling of the court, in the opinion written by Chief Justice Rehnquist, addressed four distinct issues. First, the court refused to strike down a statement in the Missouri Abortion Control Act that "[t]he life of each human being begins at conception" and that "[u]nborn children have protected interests in life, health and well-being," on the grounds that it can be read merely as a value judgment favoring childbirth over abortion rather than as an enforceable proviso. The Supreme Court then upheld the Missouri prohibitions against performance of abortions in public facilities and against public employees' performing or assisting abortions, unless the abortion is necessary to save the mother's life. The Court held that these provisions do not constitute a "government obstacle" obstructing a



Book
30 Oct 1989
TL;DR: The fourth edition of the Banking Law Committee (E) of the International Bar Association's Section of Business Law (SBL) is the result of extensive discussions at many IBA conferences of lawyers worldwide who provide commentary on a multitude of issues which may arise in the process of rendering legal opinions in international transactions as discussed by the authors.
Abstract: Sponsored by the Banking Law Committee (E) of the International Bar Association's Section of Business Law, this fourth edition is the result of extensive discussions at many IBA conferences of lawyers worldwide who provide commentary on a multitude of issues which may arise in the process of rendering legal opinions in international transactions. In most important international business transactions opinions of counsel are required as a condition precedent to the "closing" of the transaction. This book analyses and comments on the clauses of a typical legal opinion requested in an international transation. The book explains meaning given to such opinion clauses by US counsel, discusses under the law and practice of 25 countries whether such opinion can be given and whether or not modifications are advisable and addresses the investigation necessary to enable a lawyer to render a correct opinion. The book also contains a chapter discussing the opinion a non-US lawyer should request from a US lawyer. The fourth edition adds a discussion of the special issues involved in opinions rendered by in-house counsel. The principal purpose of the book is to improve the communications between the lawyer - frequently a US attorney - requesting the opinion and the lawyer rendering the opinion. Both must have a common understanding of the meaning of the terminology used in, and the scope of, the opinion. Another important purpose of the book is to analyse the interdependence of the opinions of counsel from several countries rendered in connection with one transaction. This frequently requires a conflict of laws analysis. Where the laws of several countries apply to a transaction, the various opinions must be put together like pieces of a puzzle before the recipient of the opinion can be certain that all relevant legal issues, under all relevant legal systems, have been fully addressed.

01 Jan 1989
TL;DR: Schauer observes that little empirical evidence exists that the Supreme Court ever consciously drafts an opinion for its likely audience as discussed by the authors. But, Schauer complains, the audience rarely if ever affects the manner of the message.
Abstract: As Frederick Schauer observes, little empirical evidence exists that the Supreme Court ever consciously drafts an opinion for its likely audience. To be sure, Schauer notes, the audience frequently varies. Often, only lower courts and attorneys advising business clients are watching, while at other times officials for state and local governments are the primary audience. Sometimes a case might pique the curiosity of the academic world, while on other occasions the whole world-or at least the American public-seems to be watching. But, Schauer complains, the audience rarely if ever affects the manner of the message. Schauer's Court-watching has led him to conclude that "serious thought about this issue, let alone how to address these people once we decide who they are, seems conspicuously absent from the Supreme Court's processes." In Schauer's mind the Court's inattentiveness to its audience is unfortunate: "it would seem sensible, once it was decided what the Court was going to do and how it was going to do it, for the Court to devote some time to drafting an opinion that tried to talk to those to whom the opinion ought to talk." 1 I do not quarrel with Schauer's conclusion about the Court's tendency to neglect its readership. As an inductive generalization, Schauer's thesis is probably correct. My project is more modest and specific. I will focus on just one counterexample to Schauer's thesis, which is Justice Tom Clark's majority opinion in the school prayer case, School District of Abington Township v. Schempp.2 The historical evidence shows that Justice Clark very consciously addressed the Schempp opinion to its primary audience, the ordinary citizen.