Topic
Majority opinion
About: Majority opinion is a research topic. Over the lifetime, 4107 publications have been published within this topic receiving 54845 citations. The topic is also known as: opinion of the court.
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TL;DR: In this article, the authors define the relationship of the United States' Constitution to the constitutional systems of liberal democracies that operate within the postwar constitutional paradigm, focusing on two interrelated strands of the purported justification for the exceptionalist constitutional conception with which it competes.
Abstract: The Constitution of the United States provided the inspiration for the rights-protecting constitutions of liberal democracies throughout the world. Yet the constitutional systems developed or newly established since the Second World War now differ from their US precursor. These systems have come to share a sophisticated legal paradigm that facilitates - indeed, perhaps necessitates - comparative engagement. The constitutional jurisprudence of the United States stands apart from this shared legal paradigm. Recently, prominent US judges and politicians have crossed swords on the issue of comparative reflection. This debate raises an important question: how should US scholars and judges define the relationship of their Constitution to the constitutional systems of liberal democracies that operate within the postwar constitutional paradigm?In this chapter I focus, in the light of the postwar constitutional conception and its juridical paradigm, on two interrelated strands of the purported justification for the exceptionalist constitutional conception with which it competes. In the first strand, the Constitution stands as the unique product of the US founding, so that constitutional interpretation operates within the parameters of US constitutional tradition and history. Deference to past and present expressions of the people shape legal reasoning about constitutional rights. In the second strand, any deviation from such deference invites subjective and unaccountable judicial preference to reign supreme. The classical exemplar of this danger is the Lochner case. Recoiling from the perceived judicial hubris of Peckham's majority opinion, courts and commentators in the United States have endorsed Holmes's extreme deference to majoritarianism, history, and tradition.The postwar constitutional conception demonstrates the vulnerability of both strands in this argument. The growing development of a transnational culture of rights suggests an alternative to the conception of rights-protection as the unique product of US experience. Moreover, the traditional reading of Lochner is mistaken in asserting, as the sole corrective to Peckham's majority opinion, Holmes's policy of deference to majority, history, and tradition. Rather, we should take up the neglected reasoning of Harlan, who carefully examined the impugned limitation of freedom of contract and found it justified as an exercise of the traditional police power of the state.This chapter develops these themes. The following section traces the emergence and legal structure of the postwar constitutional paradigm. The next section traces the features of this juridical paradigm within the Warren Court. The final section revisits the legitimacy of the Warren Court's constitutional methodology, by arguing that Harlan's dissent - the road not taken, as it were - delineates the legal ordering now acknowledged to be the precursor of the postwar paradigm. The conclusion draws out some of the implications of the overall argument. For example, this reassessment of Harlan's opinion would not merely enrich the recent revisionary examination of the Lochner crisis and its resolution; it would also vindicate as juridical even the most controversial judgments of the Warren Court. If the postwar constitutional paradigm were to be recognized as an integral part of US constitutional legal structure, the door would open to comparative constitutional engagement in the further development of that paradigm within the distinctive contours of US constitutional law.
44 citations
TL;DR: The authors show that the decisions of state high courts are influenced by their judicial (the U.S. Supreme Court) and political (state elites or electorates) principals, as well as by more conventional factors.
Abstract: The federal nature of the American judiciary suggests that a state court of last resort may evade decisions of the U.S. Supreme Court if those decisions do not comport with the preferences of the state supreme court judges or are in conflict with the prevailing ethos in the state. We offer a multiple principal agency model of state supreme court decision making. We posit that the decisions of state high courts are influenced by their judicial (the U.S. Supreme Court) and political (state elites or electorates) principals, as well as by more conventional factors. We test our theory by using a stratified random sample of state court of last resort decisions regarding challenged confessions from 1970 to 1991. Our analysis supports the hypothesized influence of federal courts on state supreme courts. That influence transcends most of the known determinants of decision making on the state supreme courts. We conclude that state supreme courts defer to their judicial principal but do not hesitate to use federali...
44 citations
Boston University1, University of Pittsburgh2, University of Minnesota3, University of Utah4, Georgetown University5, Brown University6, University of Arizona7, Villanova University8, Hennepin County Medical Center9, Case Western Reserve University10, Yeshiva University11, Johns Hopkins University12, University of Wisconsin-Madison13, University of Arkansas at Little Rock14, Hastings Center15, University of Illinois at Chicago16, University of Tennessee Health Science Center17, University of Tennessee18, Veterans Health Administration19, Texas A&M University20, Medical College of Wisconsin21, Loma Linda University22, University at Buffalo23, University of Iowa24
TL;DR: 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.
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. . . .
43 citations
TL;DR: In this paper, a concise introduction into the institution of the Court of Justice of the European Union in a diachronic perspective is provided, which deals with the structure of the Union courts located in Luxembourg.
Abstract: This chapter provides a concise introduction into the institution of the Court of Justice of the European Union in a diachronic perspective It deals with the structure of the Union courts located in Luxembourg; basic information about the type of judicial business the Court of Justice carries out; the composition of the Court of Justice, including the recent changes made to the way in which judges and advocates-general are selected; the often discussed style and structure of the judgments; and, finally, the even more frequently discussed and recurring question of the legitimacy of the Court of Justice
43 citations