Showing papers on "Majority opinion published in 1990"

Perceived legitimacy of supreme court decisions: three functions of source credibility

Abstract: Public reaction to a Supreme Court decision hinges, in part, on the level of diffuse support enjoyed by the Court prior to announcement of the ruling. Previous investigators have exchanged adamant claims concerning the legitimacy-conferring ability of the Supreme Court, yet these studies have consistently ignored theoretical explanations of the psychological determinants of a receiver's response to an authoritative edict. Examined from the context of a cognitive view of persuasion, the credibility of the Supreme Court as a message source should not be expected to have a simple positive effect on opinion. Instead, unique effects may result from the interaction of source credibility and other components of the process of persuasion. This paper reports the results of a series of experiments that demonstrate that the credibility of the Supreme Court can serve three unique persuasive functions: Source credibility can cue a simple positive response, prompt increased cognitive effort, and serve as evidence in support of a persuasive claim.

The Poor in Court: The Legal Services Program and Supreme Court Decision Making

Abstract: Focusing on the Supreme Court as an integral part of the policy-making process, Susan Lawrence examines how a change in who has access to the Court, and the nature of the institutions that structure that access, has affected its agenda setting and doctrinal development. In her analysis of cases sponsored by the Legal Services Program (LSP) before the Supreme Court during the 1966 through 1974 terms, she explores the effect of this agency in creating a voice for the poor in the judicial policy-making process. The Court's response to cases presented by the LSP--as exemplified in its decisions to invalidate residency requirements for welfare recipients (Shapiro v. Thompson, 1969) but uphold maximum family grants (Dandridge v. Williams, 1970)--is described as emerging from a timely combination of new litigant claims, available legal bases, and judicial values and role conceptions, all of which were shaped by the political climate of the era. Lawrence convincingly argues that litigation before the Court is a powerful method of political participation for the disadvantaged. Originally published in 1990. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Bioethicists' Statement on the U.S. Supreme Court's Cruzan Decision

Abstract: On June 25, 1990, the U.S. Supreme Court issued its long-awaited decision in the case of Nancy Cruzan, the first "right to die" case to come before it. The purpose of this statement is to clarify the meaning of that case in order to prevent misinterpretation that might lead to serious adverse consequences for hopelessly ill patients, their families, and health care professionals. First, the Supreme Court affirmed the right of competent patients to refuse life-sustaining treatment. Second, the Court did not treat the forgoing of artificial nutrition and hydration differently from the forgoing of other forms of medical treatment. . . .

Community Size, Perceptions of Majority Opinion, and Opinion Expression

Abstract: A study examined structural determinants of opinion expression by merging two theoretical perspectives: the "spiral of silence" model advanced by Elisabeth Noelle-Neumann, and the structural approach to communication research offered by Phillip Tichenor, George Donohue, and Clarice Olien. The study also distinguished between different forms of opinion expression in terms of: 1) the degree to which the expression is public, and 2) the degree to which feedback is immediate and potentially hostile. Subjects, 478 mass communications students at a midwestern university, were asked their opinions on two social issues, the banning of pornography and the passage of a mandatory seat-belt law. They were also asked about their perceptions of majority opinion in their hometowns and their willingness to express their opinions on these two topics in their hometowns. Results showed significant differences in willingness tc express opinion in smaller communities, i.e., those in which the media serve a predominantly distributive function, than in larger, more pluralistic ones, i.e., those in which the media serve more of a feedback function in response to the presence of diverse social and political groups. Spe:ifically, perceived congruity with majority opinion is a significant predictor of two forms of opinion expression in small, but not large, communities. Results suggest that "fear of confrontation" in smaller communities may inhibit opinion expression to a greater extent than the "fear of isolation" mechanism proposed by Noelle-Neumann. (Three figures and 2 tables of data are included; 23 references are attached.) (Author/RAE) *********************************************************************** Reproductions supplied by EDRS are the best that can be made from the original document. *********************************************************************** PERMISSION 10 REPHODUCE THIS MATEhIAL HAS BEEN GP,ANTED BY

The Constitution in the Supreme Court: The Second Century, 1888-1986

Abstract: The Constitution in the Supreme Court: The Second Century traces the development of the Supreme Court from Chief Justice Fuller (1888-1910) to the retirement of Chief Justice Burger (1969-1986). Currie argues that the Court's work in its second century revolved around two issues: the constitutionality of the regulatory and spending programs adopted to ameliorate the hardships caused by the Industrial Revolution and the need to protect civil rights and liberties. Organizing the cases around the tenure of specific chief justices, Currie distinguishes among the different methods of constitutional exegesis, analyzes the various techniques of opinion writing, and evaluates the legal performance of different Courts. "Elegant and readable. Whether you are in favor of judicial restraint or judicial activism, whatever your feelings about the Warren Court, or the Renquist Court, this is a book that justifies serious study."--Robert Stevens, New York Times Book Review

On the Treatment of Political Parties in the U.S. Supreme Court, 1900-1986

Abstract: This article contemplates the role the U.S. Supreme Court has played in the maintenance of the American two-party system. Specifically, we ask whether the Court has worked to constrain minor parties or to facilitate their efforts to become meaningful political entities. Our examination of litigation involving political parties depicts a Court that has remained "neutral" toward minor and major parties; indeed, we found some evidence of a positive relationship between minor parties and Court decisions, but only after we controlled for three other variables: cycles of American politics, case issues, and Court eras. These and other findings lead us to a number of conclusions about the role the Court plays in the American political system.

Missouri Stands Alone

Abstract: Missouri Stands Alone On June 25, 1990, the United States Supreme Court decided Cruzan v. Director, Missouri Dep't of Health. The Court ruled on extremely narrow grounds, and virtually all ill effects of the decision are limited to the state of Missouri. Indeed, so-called "right to die" advocates have hailed the decision as a victory for residents of the other forty-nine states, because the Court acknowledged for the first time that competent persons enjoy a constitutional right to refuse medical treatment. And perhaps more importantly, the Court effectively ended any debate about the nature of gastrostomy tubes and other artificial feeding devices--they are medical treatments. Unfortunately, these victories offer little comfort to the Cruzans and others in Missouri. But like our midwestern tornadoes, while the damage may be dramatic, it is thankfully confined to a small geographic area. Hopefully with some sensible legislation the damage can be repaired and Missouri can begin to move forward again. To understand the decision of the Supreme Court, it is important to know first what the rules are in Missouri, and then to look at what exactly the Supreme Court did and did not say about those rules. The current state law in Missouri is set out in the fourt-to-three majority opinion of the Missouri Supreme Court in the state version of the Nancy Cruzan case. That opinion unfortunately draws a distinction between initially withholding a medical treatment and later withdrawing it. In Missouri, once a family member provides the initial consent to a medical treatment for an unconscious loved one like Nancy Cruzan, the family member at that point forever forfeits all power to undo that consent or to stop treatment. No other state has such a law. Once a treatment is started for an unconscious person in Missouri, the family and doctor for that person simply lose any role in making the decision. There are only two ways the treatment can be stopped: if it causes pain (a definitional impossibility for a patient in persistent vegetative state like Nancy Cruzan), or if the patient left behind clear and convincing evidence of his or her wishes prior to incompetency. The United States Supreme Court did not endorse this Missouri rule excluding families and doctors from medical decisionmaking. Nor did it in any way endorse or recommend that other states adopt the clear and convincing standard of evidence imposed by Missouri. All the Court ruled was that the United States Constitution does not expressly prohibit Missouri from erecting this procedural barrier. Indeed, the Court implicitly acknowledged that states do sometimes pass laws that are not necessarily good laws, but all bad laws do not necessarily offend the Constitution. The high Court in fact took great pains to emphasize the limited reach of its ruling and to plead the case that its hands (unlike the various state courts and legislatures) were tied by the Constitution--"the question is simply and starkly whether the United States Constitution prohibits Missouri from choosing the rule of decision which it did. …

The Justices Write Separately: Uses of the Concurrence by the Rehnquist Court

Abstract: The concurrence is a neglected element of appellate jurisprudence. Although there is a substantial literature about the dissent, little has been said about the role of the concurrence. This article identifies and examines the ways in which members of the Rehnquist Court have employed this flexible device to serve a variety of purposes. The limiting concurrence, the most traditional use, allows a member of the majority to qualify agreement through the caveat that the Court's opinion should apply only to the circumstances of the present case. In contrast, the expansive concurrence, a much less common use, seeks to enlarge the applicability of the majority opinion. The emphatic concurrence seeks only to underscore its author's view of the majority position. Finally, the doctrinal concurrence offers its own alternate theory to reach the majority's result; it is the quintessentially right result, wrong reason opinion. The consequences of the use of the concurrence include a substitution of a plurality opinion for a majority opinion, an obstacle to a purely unanimous opinion, or a splintered decision that undermines the force of a more cohesive outcome. Although critics of the Rehnquist Court have complained that such uses weaken the Court's authority, they may also provide benefits by deferring resolution of a difficult issue to a more suitable case, by illuminating for bench and bar the implications of a majority opinion, or by placing an opinion in context. Used with restraint, the concurrence may contribute to a more finely tuned jurisprudence.

Nancy Cruzan in China.

Abstract: Nancy Cruzan in China Had the Cruzan family been in China when Nancy Cruzan suffered the accident that left her in a persistent vegetative state, and had China done to the Cruzans what Missouri has done to them, outrage would have rung throughout the United States. The commandeering of Nancy Cruzan's living body by the Chinese government would likely have been condemned by the White House, the State Department, and the Attorney General. Nancy's parents, who know and love her better than anyone on earth, would have been seen as her natural protectors, the state as an unpredictable predator. Most Americans would likely have found it easy to see that both her and Nancy's family's rights were being unconscionably violated, and have thanked God that we live in a free country where arbitrary governmental actions are restrained by a Constitution. Yet the post-Reagan Supreme Court's majority seems to believe that while personal constitutional rights exist, the Constitution should not protect them against government restrictions that are related to a legitimate state interest and are not completely "irrational." In the abortion context the struggle between the individual and the state can be misleadingly portrayed as one between the pregnant woman and the fetus. But there can be no mistake in the case of Nancy Cruzan. The choice is between the rights of Nancy Cruzan and her family, and the interests of the state. How did the state prevail? Why are we moving more and more toward a government that sees citizens merely as means to its own ends? Nancy Cruzan in Missouri Nancy Cruzan, like Karen Quinlan before her, is a young woman in a persistent vegetative state whose parents believe that she would not want to continue to live permanently unconscious. Unlike Ms. Quinlan, however, who required both a mechanical ventilator and tube feeding at the time her case was heard in court, Ms. Cruzan requires only the latter. The trial judge granted the Cruzans' petition to have tube feeding discontinued because he believed this is what Nancy wanted. The Supreme Court of Missouri, however, reversed on the grounds that the judge's decision was based only on the preponderance of the evidence (that is, it was more likely than not that Nancy wanted tube feeding discontinued), and not on a higher standard of proof, "clear and convincing" evidence, which the court said would have required Nancy herself to have expressed a specific decision about permanent comas and tube feeding before her accident. The Missouri Supreme Court determined that such evidence was required because Nancy was "not dead" and the state had an "unqualified interest" in her continued life. (1) In the absence of clear and convincing evidence of her own wishes, the state could insist that treatment continue indefinitely. The Cruzans appealed to the U.S. Supreme Court. (2) Before the Supreme Court Chief Justice William Rehnquist wrote the five-to-four majority opinion of the Court, mischaracterizing the case as one involving the "right to die" and the right to "cause death." Without deciding the central right to refuse treatment issue, he said, "for purposes of this case" the Court would "assume that the United States Constitution would grant a competent person a constitutionally protected right to refuse lifesaving hydration and nutrition." This right was implicit in previous Court decisions, based on the liberty interest delineated in the Fourteenth Amendment. The core of the case, however, involved determining what restrictions the state could impose on the exercise of the right to refuse treatment by surrogate decisionmakers acting on behalf of previously competent patients. In the Court's words, the narrow question was "whether the U.S. Constitution forbids a state from requiring clear and convincing evidence of a person's expressed decision while competent to have hydration and nutrition withdrawn in such a way as to cause death. …

On the Use of Social Conversation as Evidence in a Court of Law

Abstract: In this chapter, I shall discuss two issues which have come up in my work as a linguistic consultant and expert witness and which I feel are serious and in need of attention: first, what I take to be a misguided and dangerous use of covertly taped social conversation as courtroom evidence, and, second, the shockingly poor quality of FBI transcriptions of these tapes I shall first describe the data on which my statements are based and then discuss the two issues, in reverse order

Death of the constitutional law of personal jurisdiction: From Pennoyer to Burnham and back again

Abstract: In 1990, in Burnham v. Superior Court, the U.S. Supreme Court upheld the traditional rule that a civil defendant could be subjected to personal jurisdiction in a state simply by being physically served with the summons while in the state, no matter how brief or casual the defendant's presence. The validity of this tag rule of jurisdiction had been assumed to be in jeopardy as a result of the Supreme Court's 1977 decision in Shaffer v. Heitner which stated in dictum that it was unconstitutional for a state to exercise jurisdiction over any defendant lacking minimum contacts with the state. The Burnham Court, however, could not agree on a rationale. Four justices essentially rejected Shaffer and concluded that the historical pedigree of the tag rule immunized it from constitutional scrutiny. Four others accepted the Shaffer rationale but applied a watered-down version of the minimum contacts test. Justice Stevens in his lone opinion apparently agreed with both rationales. Burnham lays bare the confused origins of the notion that issues of state-court jurisdiction are a matter of constitutional significance. This article argues that this confusion stems from the highly ambiguous 1877 opinion in Pennoyer v. Neff. While Pennoyer seemingly introduced the notion that the Due Process Clause limited state court jurisdiction, plausibly the opinion meant only that due process principles guarantee a defendant an opportunity to challenge jurisdiction. This shaky foundation has led to a confused Supreme Court jurisprudence in this area. The article argues that the Supreme Court should dramatically limit the doctrine and invalidate only those attempted exercises of jurisdiction that put the defendant at a practical disadvantage.

International Law in the Supreme Court

Abstract: Although the Constitution assigns to Congress the power \"[t]o define and punish ... Offenses against the Law of Nations,\"' the Supreme Court long has played a major role in developing the body of international norms to which our government adheres. The Court does this by adducing principles of international obligation that it can assimilate into federal common law, by constructing doctrines derived from international law that can limit common law and statutory claims, and by using international law to guide its interpretation of statutes and the Constitution. Specialists might dispute whether such cases constitute \"international law\"-although inspired by international norms, the results bind only United States lawmakersbut no one can doubt that these decisions are the principal means by which international law becomes effective and consequential for most persons subject to United States jurisdiction. The structural point-that the Supreme Court looks to international law in the course of performing its duties-seems uncontroversial, but the substantive outcomes are often disappointing. Three illustrative cases-two from the past Term, one from the Term before-are Argentine Republic v. Amerada Hess Shipping Corporation,2 W.S. Kirkpatrick & Co. v. Environmental Tectonics Corp.,3

The Justices Write Separately: Uses of the Concurrence by the Rehnquist Court

Abstract: The concurrence is a neglected element of appellate jurisprudence. Although there is a substantial literature about the dissent, little has been said about the role of the concurrence. This article identifies and examines the ways in which members of the Rehnquist Court have employed this flexible device to serve a variety of purposes. The limiting concurrence, the most traditional use, allows a member of the majority to qualify agreement through the caveat that the Court's opinion should apply only to the circumstances of the present case. In contrast, the expansive concurrence, a much less common use, seeks to enlarge the applicability of the majority opinion. The emphatic concurrence seeks only to underscore its author's view of the majority position. Finally, the doctrinal concurrence offers its own alternate theory to reach the majority's result; it is the quintessentially right result, wrong reason opinion. The consequences of the use of the concurrence include a substitution of a plurality opinion for a majority opinion, an obstacle to a purely unanimous opinion, or a splintered decision that undermines the force of a more cohesive outcome. Although critics of the Rehnquist Court have complained that such uses weaken the Court's authority, they may also provide benefits by deferring resolution of a difficult issue to a more suitable case, by illuminating for bench and bar the implications of a majority opinion, or by placing an opinion in context. Used with restraint, the concurrence may contribute to a more finely tuned jurisprudence.

Surrogate decisionmaking and other matters.

Abstract: Surrogate Decisionmaking and Other Matters National attention was focused in 1990 on the appropriate role of family or other surrogates in health care decisions. Accordingly, surrogate decisionmaking is the dominant theme of this review of recent work in health care law. Topping the list is the United States Supreme Court's opinion in Cruzan v. Missouri Department of Health, 58 L.W. 1916 (26 June 1990). Whether commentators like or agree with the Court's opinion, it must be read with care by those who want to understand the issues involved in surrogate decisionmaking. Many state supreme courts have answered questions about decisions to withhold or withdraw medical care: the majority of these cases have dealt with health care decisions on behalf of incompetent adults, and have produced a variety of approaches and outcomes. In June 1990 the United States Supreme Court issued its opinion in the Cruzan case, the first "right to die" case the Court has considered. Acknowledging a competent adult's constitutional right to refuse life-sustaining treatment, including artificially provided nutrition and hydration, the Court nonetheless ruled that it was not unconstitutional for the State of Missouri to require "clear and convincing" evidence of a person's wishes, expressed when the person was competent, about forgoing or withdrawing life-sustaining treatment when a family member or other surrogate seeks to make the decision on behalf of an incompetent patient. The majority opinion, written by Chief Justice Rehnquist, provides a comprehensive review of the state supreme court decisions about life-sustaining treatment; even if readers of the opinion find fault with the majority's constitutional analysis, the opinion is historically accurate and comprehensive, especially if one reads the footnotes. But it is for the separate opinions that the Cruzan case is so instructive. Two justices of the five-justice majority wrote separate concurring opinions and two dissenting opinions were filed. One must read these opinions with the recognition that they represent the thinking of the nine Americans who can most directly affect individual privacy as it relates to health care decisions. Another important document relating to family decisionmaking is the new New York Health Care Proxy Law, passed by the legislature a few days after the Cruzan decision was handed down. (For a copy of the law, a suggested form, and a brochure write to: New York State Department of Health, Box 2000, Albany, NY 12220.) The law allows a competent adult to name someone who will have authority to make all health care decisions if the person becomes unable to decide for himself. …

Taking the Court Seriously: A Proposed Approach to Senate Confirmation of Supreme Court Nominees.

Abstract: 7 Constitutional Commentary 283 (1990)