Showing papers on "Supreme Court Decisions published in 1991"

Procedural Justice, Institutional Legitimacy, and the Acceptance of Unpopular U.S. Supreme Court Decisions: A Reply to Gibson

Abstract: Gibson (1989) questions whether the Supreme Court's ability to legitimate unpopular policies is based on public views that the Court is a fair decisionmaker. His claim is based on his analysis of a survey examining the ability of the Supreme Court to gain acceptance of the right of an unpopular political group to demonstrate. A reanalysis of Gibson's data using a model allowing for both direct and indirect effects of public views about the fairness of court decisionmaking procedures on acceptance does not support Gibson's conclusion that procedure has no influence on acceptance. Our results indicate that public views about the fairness of Supreme Court decisionmaking procedures have an indirect effect on acceptance through their influence on public views about the Court's legitimacy and support the suggestion of a number of studies that the legitimacy of both local and national legal institutions, and the willingness to accept their decisions, are influenced by views about the fairness of their decisionmaking procedures.

Substantive and Procedural Aspects of Supreme Court Decisions as Determinants of Institutional Approval

Abstract: Public evaluations of the Supreme Court are influenced by response to the Court's rulings, but the specific elements of decisions that affect such institutional appraisals require identification. In particular, previous investigators have been unable to determine if support of the Supreme Court moves in response to the substantive aspects of decisions, public concern with democratic procedure, or attention to both substance and procedure. This article presents the results of an experiment designed to distinguish the possible influences of substantive and procedural concerns. Findings reveal that the substantive aspects of Court rulings exert significant influence on evaluations of the Supreme Court, affecting institutional support, confidence in the Court's justices, and specific support of each of the three decisions that were studied. In contrast, concern with the democratic implications of activist rulings failed to alter any dimension of Court approval.

Beyond the Cruzan case: the U.S. Supreme Court and medical practice

Abstract: In a landmark decision, the U.S. Supreme Court affirmed a Missouri ruling that sharply limited family decisions about life-sustaining treatment for incompetent patients. The Court held that the Constitution protects the refusal of life-sustaining treatment by competent patients. For incompetent patients, states may require "clear and convincing" evidence of refusal, specifically for the withdrawal of tube feedings, if such a person were in a persistent vegetative state. The ruling left many clinical questions unanswered, such as whether life-sustaining treatment must be given to terminally ill incompetent patients, whether patients may refuse artificial feedings, and what constitutes clear and convincing evidence of refusal. The decision also has potentially harmful consequences. It may undermine family decision making, encourage cynicism and disregard of the law, and promote defensive medicine. Physicians can minimize such consequences by encouraging patients to provide advance directives, such as the durable power of attorney for health care, by urging legislative action, and by setting national practice standards for decisions regarding incompetent patients.

The Fourth Estate and the Constitution: Freedom of the Press in America

Abstract: In 1964 the Supreme Court handed down a landmark decision in New York Times v. Sullivan guaranteeing constitutional protection for caustic criticism of public officials, thus forging the modern law of freedom of the press. Since then, the Court has decided case after case affecting the rights and restrictions of the press, yet little has ben written about these developments as they pertain to the Fourth Estate. Lucas Powe's essential book now fills this gap. Lucas A. Powe, Jr., a legal scholar specializing in media and the law, goes back to the framing of the First Amendment and chronicles the two main traditions of interpreting freedom of the press to illuminate the issues that today ignite controversy: How can a balance be achieved among reputation, uninhibited discussion, and media power? Under what circumstance can the government seek to protect national security by enjoining the press rather than attempting the difficult task of convincing a jury that publication was a criminal offense? What rights can the press properly claim to protect confidential sources or to demand access to information otherwise barred to the public?And, as the media grow larger and larger, can the government attempt to limit their power by limiting their size? Writing for the concerned layperson and student of both journalism and jurisprudence, Powe synthesizes law, history, and theory to explain and justify full protection of the editorial choices of the press. The Fourth Estate and the Constitution not only captures the sweep of history of Supreme Court decisions on the press, but also provides a timely restatement of the traditional view of freedom of the press at a time when liberty is increasingly called into question.

Where did Black Jurors Go? A Theoretical Synthesis of Racial Disenfranchisement in the Jury System and Jury Selection:

Abstract: system evolved as an essential ingredient of America's judicial framework. In recent years, however, frailties of the jury sys­tem in respect to its lack of fairness for women, Blacks, Latinos, and the poor have increasingly become the center of controversy. Fed­eral law is dear that these groups have the right to participate in court as jurors, according to two key concepts: There must be a ran­dom selection of jurors, and it must be representative within speci­fied geographic districts wherein a particwar court convenes (U.S. 90th Congress House Report, 1968: Section 1961). The logic is that qualified residents of a given geographic domain should be part of the pool from which a jury is selected-on the basis of a chance­opportunity for each to serve on a jury panel. Recent U.S. Supreme Court decisions have held that any substantial violation of these basic requirements of representativeness in jury selection is a prima facie case of discrimination (Alker & Barnard, 1978; Fukurai & Buder, 1987; Fukarai, Buder, & Krooth, in press; Horowitz, 1980).

Persistent vegetative state and the right to die: the United States and Britain.

Abstract: Patients in a persistent vegetative state have permanently lost the function of the cerebral cortex. 1 Their prolonged survival presents dilemmas for their families and carers as well as for society. In the United States families of such patients often seek court rulings to discontinue life sustaining treatment when hospitals refuse such requests. In more than 80 cases the courts have supported the wishes of families, but the refusal of the Missouri Supreme Court to follow these precedents brought the United States Supreme Court its firt «right to die» case in 1990

Affirmative action: A status report

Abstract: Affirmative Action, largely dependent as it is upon Executive Orders and judge-made law, has been rather tenuous from time to time. It came under severe stress during the Reagan Administration. Yet, the 1986-89 Supreme Court decisions show that while no revolutionary strides were made, the “core principle” itself was reaffirmed. Consequently, there appear to be some salutary effects insofar as one sees some reversals of other agency postures. Thus, one can say that Affirmative Action survived after having withstood the most relentless assault so far. However, during the 1989 term, the Court opened up issues long settled thus casting a shadow on the prospects of AA. The imponderable is the future composition of the Supreme Court along with the opportunity accorded to President George Bush.

The Supreme Court, Affirmative Action, and Public Management: Where Do We Stand Today?:

Abstract: The author reviews Supreme Court decisions on affirm ative action to identify the boundaries of permissible voluntary race- or gender-conscious affirmative action by government employers. He concludes that standards of judicial review established prior to 1989 for affirmative action in the public sector have not been eroded by three controversial decisions taken by the Court that year in City of Richmond v. J.A. Croson Company, Wards Cove Packing Com pany, Inc. v. Atonio, and Martin v. Wilks. However, the outcomes of these cases could nevertheless have a chilling effect on the willingness of some public employers to engage in permissible affirmative action.

The Influence of Smith V. Van Gorkom on Director's and Officer's Liability

Abstract: Smith v. Van Gorkom was decided in the Supreme Court of Delaware in 1985 and shortly thereafter began to receive considerable attention in legal and business communities and in journals of scholarship. The claim has been made that the case was a landmark decision which will cause nominees to refuse to serve on corporate boards, increase the difficulty of obtaining Director's and Officer's Liability (D&O) insurance, and provide a boon for investment bankers and outside consultants. This article provides a brief overview of the facts in the case and discusses the Court of Chancery and Delaware Supreme Court decisions, and the theory of liability which is central to the case. The effects which some commentators predicted would result from the decision are analyzed, and some of these conjectures are disputed. A positive result of the Van Gorkomn case - the enactment of Section 102(b)(7) of the Delaware Code and similar state statutes - is identified. The Van Gorkom decision will have an impact primarily because it inspired the enactment of state statutes which limit director's liability.

The long dying of Nancy Cruzan.

Abstract: With the Nancy Cruzan decision,l the post-Reagan Supreme Court continued recreating America’s legal landscape by transferring traditional rights from its citizens to state legislatures and state officials. Attorneys Bopp and Marzen see Cmzan as a cause for celebration.2 The more common view is that it is a hollow acceptance of the technological imperative that requires all Americans to engage in extensive damage control. Given the composition of the Court, constituted by President Ronald Reagan to overrule Roe v. Wade, Bopp and kfarzen correctly note that the result in Cruzan was “practically inevitable.’’ But its inevitability does not make its consequences any more desirable than the devastation caused by an inevitable tornado or tidal wave. This article summarizes the Cnrzan case and suggests ways to contain its potentially destructive force.

Cruzan: facing the inevitable

Abstract: When the United States Supreme Court upheld’ the decision of the Missouri Supreme Court that it was not in the best interests of Nancy Cruzan to die of dehydration and malnutrition by withholding from her food and fluids provided by tube? the result was deplored by many legal and popular commentators. The criticism suggested a wide range of values and reasoning that were reflected in the various briefs filed in the U.S. Supreme Court in support of reversing the Missouri court decision. The objections might be placed in three categories: the medical, the legal, and the ethical. The medical rationale for reversal of the Missouri Supreme Court categorized provision of food and fluids by tube as a “medical treatment” and, hence, subject to practices that pertain to forgoing other, more obvious forms of medical treatment, such as use of respirators or chemotherapy.3 It also, perhaps more importantly, presumed that those in a “persistent vegetative state,” such as Ms. Cruzan, are more properly subject to a diminished standard of care than those who are no@presumably, on the grounds that those in such a state are permanently non-conscious, and that human beings who will permanently lack consciousness do not warrant the same standard of care as those who are deemed even partially conscious.5 The ethical rationale argued that it was appropriate to forgo food and fluids, at least if provided by tube, from persons in Ms. Cruzan’s condition because the benefit of continued life in such a condition was nonexistent or minimal in comparison to the burden of continuing to provide them treatment or to the burden of their overall care.6 The legal rationale, with which we are primarily concerned here, assumed a constitutional right in refusal of treatment or care that survives incompetency fully intact and is properly exercised by third-parties closely associated with the affected person, such as family members, rather than by the state.7 For a variety of reasons, all of these arguments failed to persuade the majority of the U.S. Supreme Court that there was sufficient justification in the U.S. Constitution to overrule the Missouri Supreme Court’s decision that Nancy Cruzan should continue to be provided food and fluids necessary to sustain her life. It is our view that at least the result of the U.S. Supreme Court’s decision was or should have been seen as inevitable. This is so not only because of the jurisprudence of the present Court, but also because logic and legal history dictated as much, and, most importantly, because of the consequences that would have flowed from a decision reversing the Missouri Supreme Court on the basis of principles alleged to flow from the U.S. Constitution. From this perspective, this article will analyze the Court’s decision: What it held, what it did not hold, implications of the decision for future litigation and legislation, implications of a contrary result, and suggested legislative “solutions” to the supposed problem that Cruzan presents.

Informed Consent in Forensic Evaluations

Abstract: Until very recently, the idea of informed consent was not seen as relevant to forensic evaluations performed in reference to a Court Order. However, several recent Court decisions have suggested otherwise, indicating that the patient needs to know that the relationship between himself or herself and the examiner is not a confidential one and that the material will be made available to the Court or various attorneys. This paper will follow the evolution of the concept of informed consent through several Supreme Court decisions and a series of more recent cases regarding privilege and waiver of privilege. Suggested formats for informed consent will be presented and a model will be proposed indicating the lack of confidentiality in the relationship, the sources to whom the report will be made available and guidelines or assessing the competency of the patient to understand those procedures.

Law, Medicine, and the Gag Rule

Abstract: The Supreme Court of the United States, in Rust v. Sullivan (1), decided late this spring that regulations prohibiting counseling concerning abortion in federally funded family planning clinics (th...

Justifying Searches on the Basis of Equality of Treatment

Abstract: Fourth Amendment jurisprudence is in serious disarray. In searches associated with specific criminal conduct, the per se rule of Johnson v. United StatesI has been under siege almost since its inception. In searches associated with non-specific criminal conduct airport stops,2 border searches,3 drug testing,4 and sobriety checkpoints5 the Supreme Court has been reluctant to restrict police practices.6 Yet, it has become very difficult to predict just how the dual objectives of the Fourth Amendment protection against unjustified searches and protection against arbitrary searches7 will play out in any given set of facts. There is, however, a rather surprising theme which seems to unify many of the Supreme Court decisions on the Fourth Amendment: The Supreme Court has become so concerned with the equal treatment of searched persons that the Court has often abandoned its role in providing protection for individual privacy. In many situations, the Supreme Court has become more interested in whether all searched persons are treated equally than whether the Fourth Amendment has protected persons in a substantive way. The concern for equality has allowed the Supreme Court to give great defer-

The Pending Gauntlet to Free Exercise: Mandating that Clergy Report Child Abuse

Abstract: This Article analyzes the conflict between statutory child abuse reporting requirements for clergy and the clergy-communicant privilege for confidential communications made within specific religious practices. The constitutional conflict arises between the state's interest in the protection of children by requiring that suspected cases of abuse be reported and the clergy's interest in the free exercise of their religious tenets by maintaining confidentiality. This analysis recognizes that state legislators have broadened reporting requirements to include more and more classes of people in an effort to arrest the tremendous increase in child abuse in the past decade. As a result, the shield of privileged communications between clergy and communicant, attorney and client, doctor and patient, and counselor and client, has become more narrowly defined. The legislative reevaluation of the clergy-communicant privilege involves a greater constitutional issue: whether the religious liberty interest protected by the Free Exercise Clause can withstand one of the most egregious situations within society, the abuse of children. This Article evaluates the First Amendment protection of freedom of religion, specifically the right to maintain privileged communications as an exercise of religious practice, in light of the United States Supreme Court's treatment of other rights guaranteed by the Constitution. For example, if a priest is to assert the privilege to maintain the confidentiality of information received within the Sacrament of Penance, the interest in doing so must equal or outweigh the state's interest in protecting children. A number of United States Supreme Court decisions have balanced similar interests in a variety of cases. Thus, even if the Court has abandoned the balancing involved in the compelling state interest test, the way in which the Court has interpreted other constitutional provisions to afford rights to minorities not protected by the political process should serve as a guide for the Court when it addresses the conflict between free exercise and child abuse reporting statutes. The First Amendment should protect those farthest from the political process in their religious practices in the same fashion that it protects anti-majoritarian political views. Finally, this Article proposes that the interests of the state served by the clergy-communicant privilege outweigh the interest in protecting children through mandated reporting. In an effort to evoke protection of these confidential communications through the political process, this Article examines the constructive role of clergy-communicant confidentiality in the prevention of child abuse. What appears to be a conflict between mandatory reporting statutes and the assertion of confidentiality is actually two different means to the same end of protecting children. No legal analysis concerning the possibility of litigation over the enforceability of child abuse reporting statutes should ever lose sight of the fact that protecting children from abuse is paramount to both the clergy and the state.

The NLRB Racial Discrimination Decisions 1935-64: The Empiric Process of Administration and the Inner Eye of Racism

Abstract: This Article examines decisions of the National Labor Relations Board involving racial discrimination during the early years of the Wagner Act and related decisions following the passage of the Taft-Hartley Act. This time frame provides a unique perspective from which one may better understand the Board’s unarticulated adherence to its assumed role of managing racial conflict in the workplace in order to maintain the dominance of white workers. Part II of this Article presents a brief historical overview of the sources and nature of the racial conflict between black and white workers. This part will provide the socio-historical context in which the Board construed the Wagner Act. Part III explores the question of whether or not the Act was intended to address the issue of racial conflict and how the answer to that question depends in large part on the perspective one adopts in exploring the issue. Part IV examines the extent to which early Supreme Court decisions articulating the purposes of the Act support the view that the Act could be used as a vehicle for eliminating certain types of racial discrimination in the workplace. Finally, in Part V, the Board’s view of racial conflict and how it relates to the Act is examined.

The Right Of Confrontation, Justice Scalia,And The Power And Limits Of Textualism

Abstract: Mental health professionals have researched the effects of the adversary trial process on child victim-witnesses in sexual abuse trials Concern about the psychological trauma related to giving trial testimony, and the damage it may do to the truth-seeking function of the trial itself, have motivated the vast majority of the states to establish special procedures for accommodating child witnesses in such cases States have also shown great interest in expanding the traditional scope of admissible hearsay in order to use out-of-court statements by child victims The typical effect of the procedures employed at trial has been to limit, or eliminate outright, the defendant's ability to visually confront the complaining witness The inevitable collision between such innovations and the Sixth Amendment, which provides that in all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him, produced four important, and deeply divided, Supreme Court decisions in the years leading up to the publication of this article: This article examines and critiques the Supreme Court's response to these issues by focusing on the interpretive approach of Justice Antonin Scalia

Agency Alert: Ignoring the Nollan Nexus May Cost You Money

Abstract: After discussing two landmark US Supreme Court decisions, this article proposes a model for assessing the legal adequacy of development permit conditions, applies that model in analyzing a recent California Superior Court case, and offers alternative suggestions for achieving coastal, recreational and resource goals