Showing papers on "Supreme Court Decisions published in 1989"

The Jurisprudence of Prevention: The Right of Societal Self-Defense Against Dangerous Individuals

Abstract: (This article was written in 1989 and predicts the weakening of criminal law protections by transforming criminal prosecutions into administrative detentions.)As America moves into the twenty-first century, we must determine to what extent individual liberties must be sacrificed for the common good. Ideals of liberty and privacy are stretched to the limit as modern fears of street crime merge with ancient fears of plague. As the Supreme Court confronts new laws molded by these fears, it retraces old patterns of jurisprudence and establishes a new public health jurisprudence of prevention. Nation states fear pestilential diseases because they can destroy the social order. Historically, civilizations have been terrorized by communicable diseases: In earlier ages, pestilences were mysterious visitations, expressions of the wrath of higher powers which came out of a dark nowhere pitiless, dreadful, and inescapable. In their terror and ignorance, we did the very things which increased death rates and aggravated calamity... Panic bred social and moral disorganization; farms were abandoned, and there was shortage of food, famine led to civil war, and, in some instances, to fanatical religious movements which contributed to profound spiritual and political transformations.Epidemics have ravaged the United States at several points in its history. In response, legislatures granted public health authorities substantial power, and the courts supported this delegation of power based on society's right of self-defense. In hindsight, some of these disease control measures were ineffective, some even detrimental. Yet, these measures did serve the broader purpose of preserving order by assuaging fear through action and authority. A series of recent United States Supreme Court decisions has produced a neo- public health jurisprudence. The new public health cases all involve quasi- criminal proceedings in which defendants stood accused of threatening the public welfare through violent action. In stepwise fashion, the Court has approved ever greater restrictions on the liberty of individuals who have not been convicted of a crime. Although these decisions may seem unrelated to disease control, they apply traditional public health rationales and procedures to individuals who pose a threat to society. This jurisprudence of prevention builds on the foundation of traditional public health jurisprudence--society's right to restrict individuals for the common good. The link between the old disease control cases and the Supreme Court's recent decisions is that both attempt to preserve social order through prevention rather than punishment. Although pragmatically a detainee may care little whether he is locked up for punishment or to prevent future harm, jurisprudentially the difference is profound. The courts have required few procedural safeguards in public health cases because persons are deprived of liberty to protect the public welfare, not as a punishment. In the prevention cases, the Supreme Court has allowed the disassociation of punishment and prevention in criminal law: states may now restrict the liberty of individuals to protect the public welfare, irrespective of the nature of the threat. In adopting the kernel of traditional public health jurisprudence, the right of societal self-defense, the prevention cases also approve the three hallmarks of public health jurisprudence: 1) deference to non-judicial expert decision makers; 2) postrestriction judicial review through habeas corpus, rather than full prerestriction judicial review; and 3) proof of future dangerousness based on scientific rather than criminal law standards of proof. The prevention decisions signal an increasing willingness of the Supreme Court to subrogate individual liberty to the common good. This shift from individualistic to communal values will profoundly affect many areas of jurisprudence, and the most direct effect will be the revival of traditional public health jurisprudence. At present there is profound confusion among public health officers. The nation's public health system is in disarray; major public health responsibilities--from fighting critical epidemics such as AIDS, to keeping drinking water safe--"have become so fragmented that deliberate action . . . is often difficult, if not impossible. . . . "A driving force behind this fragmentation of public health efforts is the perception on the part of health officers that they no longer have the authority to restrict an individual's liberty to protect the public safety. They assume that the strides made by the Supreme Court and the Congress in the protection of individual liberty have been at the expense of public health authority.[11] Through its new public health decisions, however, the Court has reaffirmed the substantive and procedural foundations of the traditional disease control cases. Having applied these principles in new contexts, the Court should not now abandon them when it reviews traditional disease control cases. This Article first traces the evolution of the theme of punishment versus prevention through the traditional public health cases. The second section of the Article elucidates these threads in the new prevention cases. The discussion of the prevention cases begins with an analysis of In re Gault and In re Winship. These cases represent the Supreme Court's traditional position that all crime-related detentions are punishments requiring full due process protections. It is the explicit rejection of the due process absolutism expressed in Gault and Winship that marks the beginning of a modern jurisprudence of prevention. The discussion of the prevention cases focuses on their adoption of traditional public health themes. In these opinions, the Supreme Court has limited the presumption of innocence to criminal trials, endorsed the preventive detention of adults and juveniles to prevent future criminal acts, upheld legislative measures providing for confinement of individuals through civil actions without criminal due process protections, and allowed detention of individuals under the authority of expert decisionmakers. The final section of this Article discusses the ramifications of preventive jurisprudence. Through the use of civil standards of proof, these decisions legitimize prospective efforts to control certain types of criminal behavior, broaden the state's authority to confine the dangerous mentally ill, and permit confinements to be carried out expeditiously. These decisions also pose the threat of totalitarianism. The Article concludes with an analytic framework for balancing public protection against individual liberty.

Judicial Activism and Restraint in the Supreme Court's Environmental Law Decisions

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.

Affirmative action: Federal support, supreme court decisions, and human resource management

Abstract: This article explores the historical background of affirmative action in the United States, and reviews haw federal support for it has changed since the Civil War. Several recent US Supreme Court cases deciding affirmative action issues are discussed, with speculation about the future of affirmative action in light of these decisions. The article also discusses the implications of these rulings for human resource practitioners.

The Jurisprudence of Prevention: The Right of Societal Self-Defense Against Dangerous Persons

Abstract: (This article was written in 1989 and predicts the weakening of criminal law protections by transforming criminal prosecutions into administrative detentions.)As America moves into the twenty-first century, we must determine to what extent individual liberties must be sacrificed for the common good. Ideals of liberty and privacy are stretched to the limit as modern fears of street crime merge with ancient fears of plague. As the Supreme Court confronts new laws molded by these fears, it retraces old patterns of jurisprudence and establishes a new public health jurisprudence of prevention. Nation states fear pestilential diseases because they can destroy the social order. Historically, civilizations have been terrorized by communicable diseases: In earlier ages, pestilences were mysterious visitations, expressions of the wrath of higher powers which came out of a dark nowhere pitiless, dreadful, and inescapable. In their terror and ignorance, we did the very things which increased death rates and aggravated calamity... Panic bred social and moral disorganization; farms were abandoned, and there was shortage of food, famine led to civil war, and, in some instances, to fanatical religious movements which contributed to profound spiritual and political transformations.Epidemics have ravaged the United States at several points in its history. In response, legislatures granted public health authorities substantial power, and the courts supported this delegation of power based on society's right of self-defense. In hindsight, some of these disease control measures were ineffective, some even detrimental. Yet, these measures did serve the broader purpose of preserving order by assuaging fear through action and authority. A series of recent United States Supreme Court decisions has produced a neo- public health jurisprudence. The new public health cases all involve quasi- criminal proceedings in which defendants stood accused of threatening the public welfare through violent action. In stepwise fashion, the Court has approved ever greater restrictions on the liberty of individuals who have not been convicted of a crime. Although these decisions may seem unrelated to disease control, they apply traditional public health rationales and procedures to individuals who pose a threat to society. This jurisprudence of prevention builds on the foundation of traditional public health jurisprudence--society's right to restrict individuals for the common good. The link between the old disease control cases and the Supreme Court's recent decisions is that both attempt to preserve social order through prevention rather than punishment. Although pragmatically a detainee may care little whether he is locked up for punishment or to prevent future harm, jurisprudentially the difference is profound. The courts have required few procedural safeguards in public health cases because persons are deprived of liberty to protect the public welfare, not as a punishment. In the prevention cases, the Supreme Court has allowed the disassociation of punishment and prevention in criminal law: states may now restrict the liberty of individuals to protect the public welfare, irrespective of the nature of the threat. In adopting the kernel of traditional public health jurisprudence, the right of societal self-defense, the prevention cases also approve the three hallmarks of public health jurisprudence: 1) deference to non-judicial expert decision makers; 2) postrestriction judicial review through habeas corpus, rather than full prerestriction judicial review; and 3) proof of future dangerousness based on scientific rather than criminal law standards of proof. The prevention decisions signal an increasing willingness of the Supreme Court to subrogate individual liberty to the common good. This shift from individualistic to communal values will profoundly affect many areas of jurisprudence, and the most direct effect will be the revival of traditional public health jurisprudence. At present there is profound confusion among public health officers. The nation's public health system is in disarray; major public health responsibilities--from fighting critical epidemics such as AIDS, to keeping drinking water safe--"have become so fragmented that deliberate action . . . is often difficult, if not impossible. . . . "A driving force behind this fragmentation of public health efforts is the perception on the part of health officers that they no longer have the authority to restrict an individual's liberty to protect the public safety. They assume that the strides made by the Supreme Court and the Congress in the protection of individual liberty have been at the expense of public health authority.[11] Through its new public health decisions, however, the Court has reaffirmed the substantive and procedural foundations of the traditional disease control cases. Having applied these principles in new contexts, the Court should not now abandon them when it reviews traditional disease control cases. This Article first traces the evolution of the theme of punishment versus prevention through the traditional public health cases. The second section of the Article elucidates these threads in the new prevention cases. The discussion of the prevention cases begins with an analysis of In re Gault and In re Winship. These cases represent the Supreme Court's traditional position that all crime-related detentions are punishments requiring full due process protections. It is the explicit rejection of the due process absolutism expressed in Gault and Winship that marks the beginning of a modern jurisprudence of prevention. The discussion of the prevention cases focuses on their adoption of traditional public health themes. In these opinions, the Supreme Court has limited the presumption of innocence to criminal trials, endorsed the preventive detention of adults and juveniles to prevent future criminal acts, upheld legislative measures providing for confinement of individuals through civil actions without criminal due process protections, and allowed detention of individuals under the authority of expert decisionmakers. The final section of this Article discusses the ramifications of preventive jurisprudence. Through the use of civil standards of proof, these decisions legitimize prospective efforts to control certain types of criminal behavior, broaden the state's authority to confine the dangerous mentally ill, and permit confinements to be carried out expeditiously. These decisions also pose the threat of totalitarianism. The Article concludes with an analytic framework for balancing public protection against individual liberty.

The Supreme Court and Judicial Choice: The Role of Provisional Review in a Democracy

Abstract: Views Supreme Court decisions as just part of the evolutionary process of constitutional interpretation.

The Quiet Evolution Continues

Abstract: Most recent discussions of land-use law have focused on possible damage awards against local governments as a result of two Supreme Court decisions in 1987. However, most of the news for local governments has actually been good. Appellate courts have to date favored damage awards in only a few, generally egregious, cases. A variety of courts have upheld restrictive land-use controls, including some based solely on aesthetic considerations. Courts have also been friendly to tougher enforcement measures. The concept of impact fees has enjoyed more recent play in the literature than in the courts, while the friendly treatment of linkage requirements in the literature has not been supported by the courts.

The constitution and the rights of the mentally ill: An analysis and proposal

Abstract: (1989). The constitution and the rights of the mentally ill: An analysis and proposal. Journal of Legal Medicine: Vol. 10, No. 4, pp. 661-702.

Webster and the politics of abortion.

Abstract: Recent legal disputes regarding the constitutionality of statutes restricting abortion in the US center around whether women and their physicians will make decisions about abortions or whether such decisions will be the domain of state legislatures. In 1989 the Missouri 8th Circuit Court of Appeals heard a case (Webster) involving a state statute designed to restrict access to abortion. The statute under question included an assumption that life begins at conception a hospitalization requirement the requirement that a physician determine viability a ban on use of public funds for abortion and restrictions on the use of public facilities for pregnancy terminations. A federal trial court declared these provisions unconstitutional; however Missouri is seeking Supreme Court review of the Webster decision. Since abortion has become the most frequently performed medical procedure in the US it is unlikely to be outlawed. However a narrowing of abortion rights seems inevitable. In addition to further restrictions on indirect government support in terms of facilities and funding there will likely be efforts to add restrictions to minors seeking abortions and to confine abortions to earlier points in pregnancy.

Eighth Circuit and Professional Judgment: Retrenchment of the Constitutional Right to Refuse Antipsychotic Medication, The

Abstract: This Article examines the confused evolution of the right to refuse antipsychotic medication. The complex and difficult issues presented by this emerging legal concept are illustrated by an analysis of the initial right to refuse litigation in Rennie and Rogers. A description of the Supreme Court's review and remand of these two cases as well as its intervening decision in Youngberg follows. The Article then focuses on the impact these Supreme Court decisions have had on subsequent federal right to refuse cases. Special emphasis is placed on the Eighth Circuit's unqualified adoption of Youngberg's professional judgment standard. In addition, the United States Court of Appeals for the Fourth Circuit's recent shift from a protective due process approach to the Eighth Circuit's position is described.The Article maintains that reliance on the Supreme Court's reasoning in Youngberg, as well as on other cases in which it has displayed a great amount of deference to institutional decision making, is misplaced in drug refusal litigation. It is argued that forced medication determinations involve protected individual interests, which are different from and more important than those addressed by the Supreme Court in Youngberg and similar cases. In addition, the adverse side effects posed by drug therapy present a far greater intrusion on a patient's constitutionally protected interests than do the institutional interventions previously at issue before the Supreme Court. As a result, the state interests necessary to justify forced medication must be compelling. In addition, the procedural protections necessary in medication determinations must be more extensive than those offered by the professional judgment standard.The Article further describes state cases addressing the right to refuse issue. It chronicles how state courts have generally avoided employing the professional judgment standard either by distinguishing the relevant Supreme Court cases or relying on state constitutional, statutory or common law. Special treatment is given to the Washington Supreme Court's recent decision in Harper v. State, due to the United States Supreme Court's grant of certiorari. The Article concludes by maintaining that the Eighth Circuit as well as other courts which have adopted the professional judgment approach in drug refusal cases are in fact misinterpreting and misusing the standard; that while professional judgment is a procedural means for implementing a constitutional right, these courts are instead using the doctrine to define the protected individual interest involved. Moreover, even when properly employed, the standard offers inadequate protection to patients refusing antipsychotic medication, considering the lack of medical knowledge about these potentially dangerous drugs and the substandard conditions in public mental hospitals.

Four-One-Four

Abstract: It seems plausible that we will come to see Roe v. Wade's solution to the abortion issue the way Churchill saw democracy: the worst possible system, except for every other system. The Court's july, 1989 abortion decision' technically does not change Roe at all. Why then has the Webster decision occasioned such harsh rhetoric from those supporting a woman's right to make decisions free from the constraints of the criminal law, and such jubilant praise from those who want state legislatures to make decisions instead of women and their physicians? The answer is not in the holding,' but in the dicta used to deliver it. Five justices, writing three separate opinions, have made it clear that they believe the "trimester" scheme of Roe is no longer tenable, and four are ready to permit states to regulate heavily, and perhaps even prohibit outright abortions at any point in pregnancy. Roe is certainly vulnerable to constitutional attack, but it reasonably balances individual rights and state interests and has been the law of the land for almost two decades. Unless constitutional law is to be seen as simply the will or whim of the most recently appointed justices to the Supreme Court, some compelling reason must surely be articulated to abandon Roe, and some reasonable alternative constructed to take its place. It is the lack of any analysis or alternative approach that makes the Webster decision so disturbing and political reaction to it inevitable. The Chief justice himself was able to persuade only two members of the Court Uustice Byron White, who dissented with him in Roe in 1973, and the Court's newest member, Justice Anthony Kennedy) to concur in his opinion justices Antonin Scalia and Sandra Day O'Connor agreed with the outcome, but not the logic. Thus there is no majority opinion, only the Rhenquist Plurality." Problems with Roe There are, of course, two major considerations in Roe v. Wade. defining the woman's constitutional rights, and determining the state's interests in her decision. The first is based on the constitutional right of privacy, which Roe reaffirmed and expanded to encompass a pregnant woman's right to decide about abortion. The second defines when a state may interfere with the right: to protect maternal health when abortion is more dangerous than childbirth, and to protect fetal life after viability. The scope of the constitutional right of privacy is analytically the most challenging and ultimately the most central question. The plurality simply ignores it, even though as justice Blackmun properly notes in dissent: These are questions of unsurpassed significance in this Court's interpretation of the Constitution, and mark the battleground upon which this was fought, by the parties, by the Solicitor General ... and by an unprecedented number of amici. On these grounds, abandoned by the plurality, the Court should decide this case. "Privacy" has come to be simply a one-word legal description of individual liberty (or self-determination) to make decisions that involve marriage, sterilization, contraception, and abortion. As Ronald Dworkin has aptly described the core of self determination in the privacy right, decisions affecting marriage and childbirth are "so important, so intimate and personal, so crucial to the development of personality and sense of moral responsibility' that individuals must be allowed to make them "consulting their own conscience, rather than allowing society to thrust its collective decision on them."3 Abortion, the Court has consistently reaffirmed, is substantially identical to these decisions. In Dworkin's words: In many ways it is more private, because the decision involves a woman's control not just of her connections to others, but of the use of her own body, and the Constitution recognizes in a variety of ways the special intimacy of a person's connection to her own physical integrity (51). The real constitutional issue is defining the boundaries of this right If, for example, abortion is to be removed from the compass of this cluster of privacy rights, is there an alternative principle that explains why the abortion decision iS not constitutionally protected, but contraception, marriage, and sterilization decisions are? …

Supreme court decisions set precedent for pilot drug testing

Abstract: The U.S. Supreme Court has ruled to allow drug testing in two separate cases concerning railroads and U.S. Customs Service employees. This strengthens the Department of Transportation's plans for mandatory testing of airline workers with critical safety responsibilities. The key to both of the court's decisions was the justices' concern for the safety of the public. This was deemed more important than the rights of individual employees in certain cases. The Department of Transportation is likely to use a similar argument to defend its drug-test rules in pending cases brought by airline labor groups. Attorneys from Natca, the Air Line Pilots Association and the International Association of Machinists, three major employee groups objecting to the Department of Transportation's drug test policies, found significant differences between these cases and aviation worker concerns. The director of consumer and industry affairs for the U.S. branch of the International Airline Passengers Association suggested an alternative method - a simple psychological test to determine the employee's judgment and performance each day as he or she reports to work.

An interview with charles g. gomillion

Abstract: Mr. Charles G. Gomillion was the lead plaintiff in Gomillion versus Lightfoot, the Tuskegee gerrymandering case. In 1957, the Alabama legislature had redrawn the Tuskegee City boundaries from a square to a twenty-eight sided shape resembling a "seahorse" that included all 600 white voters, but excluded all except four or five of the 400 black voters. As leader of the Tuskegee Civic Association, Mr. Gomillion held public meetings, publicized the situation, and filed suit. In 1960, the U.S. Supreme Court decided that the Alabama act violated the Fifteenth Amendment. The decision helped persuade Congress to pass the 1965 Voting Rights Act. Since the Constitution leaves voting eligibility and districts to the states, the Court, prior to Gomillion, refrained from getting into "the political thicket," even though most states had not redistricted since the turn of the century. Since 1900, the massive population shift from farms to cities resulted in gross population disparities among legislative districts running as high as five or ten or more to one. The Gomillion decision was a constitutional turning point that, in 1962, allowed the Court to decide the one person-one vote case (Baker versus Carr) and, in 1964, to rule that both houses of state legislatures must be apportioned by population (Reynolds versus Sims). These decisions redrew the legislative map of the nation and changed the nature of politics in the United States. There is the temptation when regarding such high and mighty things as constitutional history and Supreme Court decisions to see events as inevitable, and in so doing ignore the initiative of individuals. Mr. Gomillion was the prime mover in the case that bears his name. His experience in many ways distills the story of black Southerners in this century. The interview that follows is one of seventy-two in a University of Virginia sponsored project to document the Civil Rights Movement in law. Professor William A. Elwood of the University's English Department began the project in 1983. Early in 1984, Hon. A. Leon Higginbotham, Jr. of the 3rd Circuit U.S. Court of Appeals in Philadelphia and the author of In the Matter of Color: Race & the American Legal Process: The Colonial Period (Oxford UP, 1978), joined Professor Elwood as the legal advisor and commentator for the project. Some 200 University of Virginia students have worked on the project. Ms. Margaret Ponds transcribed and Ms. Octavia Taylor proofread this interview. A 90 minute television program, THE ROAD TO BROWN, directed by Mykola Kulish, is scheduled for completion in September 1989. California Newsreel, a non-profit distributor, will have the 90 minute program and a 50 minute classroom version available in October.

The abortion struggle in america

Abstract: KIE: The U.S. Supreme Court's July 1989 decision in Webster v. Reproductive Health Services, while not overturning Roe v. Wade, extended the power of state and local governments to regulate abortion. Warren situates the Webster decision in a larger context of 19th and 20th century American anti-abortion legislation, the Court's 1973 Roe decision and its predecessors, and the anti-abortion campaign that followed Roe. She then discusses Webster and its legal, practical, and political implications, concluding that the future of legal abortion in the United States is radically uncertain.

Legal Guide for Police: Constitutional Issues

Abstract: Legal Guide for Police: Constitutional Issues, 11th Edition, is a valuable tool for criminal justice students and law enforcement professionals, bringing them up-to-date with developments in the law of arrest, search and seizure, police authority to detain, questioning suspects and pretrial identification procedures, police power and its limitations, and civil liability of police officers and agencies Including specific case examples, this revised edition provides the most current information for students and law enforcement professionals needing to develop an up-to-date understanding of the law Authors Walker and Hemmens have included introductory and summary chapters to aid readers in understanding the context, importance, and applicability of the case law A new chapter covers warrantless searches involving cell phones and other technology, as well as vehicles All chapters have been updated to reflect US Supreme Court decisions up to and including the 2018 term of court Important cases added to this edition include: Riley v California (2014), Florida v Jardines (2013), Birchfield v North Dakota (2016), Heien v North Carolina (2014), and Byrd v United States (2018) A helpful Appendix contains the Bill of Rights and the Fourteenth Amendment, and a Table of Cases lists every case referenced in the text