scispace - formally typeset
Search or ask a question

Showing papers on "Supreme Court Decisions published in 1996"


Journal ArticleDOI
TL;DR: The authors examined the influence of public opinion on individual members of the United States Supreme Court during the period 1953-1992 and found that moderate justices were more likely to hold critical swing positions on the Court.
Abstract: Recent aggregate-level research on the United States Supreme Court suggests that shifting tides of public opinion can have important effects on Supreme Court decisions. Moreover, these effects can be both direct (i.e., unmediated by other institutions) and indirect (i.e., mediated through presidential elections and subsequent judicial appointments). This research extends this inquiry by examining the influence of public opinion on individual members of the Supreme Court during the period 1953-1992. Although the majority of justices during this period show little or no evidence of public opinion effects, a significant minority of justices show substantial effects. As predicted by social psychological theories, the impact of public opinion is greatest among moderate justices who are likely to hold critical swing positions on the Court. The effects of public opinion are in addition to significant agenda effects and suggest important refinements in the standard attitudinal model of judicial decision making.

148 citations


Journal ArticleDOI
TL;DR: The authors assess the impact of the Supreme Court's decision in Lamb's Chapel v. Center Moriches on the geographic constituency involved in the case, and find that high levels of information about the decision increases support for the decision among those for whom the decision is relatively less salient.
Abstract: We argue that the standard methodology for assessing the impact of Supreme Court decisions on public opinion, which relies on national surveys to measure public attitudes before and after relevant Court decisions, fails, among other grounds, to account for the fact that the overwhelming majority of Court decisions speak to particular constituencies only. We assess the impact of the Supreme Court's decision in Lamb's Chapel v. Center Moriches on the geographic constituencies involved in the case. We interviewed a random sample of residents in the town of Center Moriches and in the surrounding county of Suffolk, New York, before and after the decision. Consistent with the elaboration likelihood model of persuasion (Petty and Cacioppo 1986), we find that high levels of information about the decision increases support for the Court's decision among those for whom the decision is relatively less salient.

109 citations



Book
22 May 1996
TL;DR: Hiebert as discussed by the authors explores how difficult it is for judges to determine the reasonableness of legislative initiatives and examines the considerable influence exerted by Canadian politicians in decisions about which legislative activities will be considered justifiable limits on protected rights.
Abstract: Through an extended analysis of Supreme Court decisions involving limits on protected rights, Hiebert explores the issues surrounding judicial review. She explores how difficult it is for judges to determine the reasonableness of legislative initiatives and examines the considerable influence exerted by Canadian politicians in decisions about which legislative activities will be considered justifiable limits on protected rights. Politicians have, in other words, helped define the very constraints that the Charter was intended to impose on them. Limiting Rights sheds light on one of the most contentious issues in a political system with entrenched rights.

23 citations


Journal ArticleDOI
TL;DR: In this article, the authors pointed out that although the Supreme Court in these decisions repeatedly insists that recourse to Islamic Shari'a is a matter of policy to be left entirely to the federal legislature, the Court repeatedly announced that all federal legislation should be derived from Islamic Sharisa.
Abstract: The preceding Supreme Court decisions led to the following conclusions: firstly, although the Supreme Court in these decisions repeatedly insists that recourse to Islamic Shari'a is a matter of policy to be left entirely to the federal legislature, the Court repeatedly announced that all federal legislation should be derived from Islamic Shari'a. The Court thus adopted the Islamists position according to which any legislation violating the Shari'a dictates should be considered unconstitutional.66 Secondly, although, as mentioned, there was strong evidence of an apparent conflict between the Constitution and the laws dealt with by the Supreme Court in the aforementioned judgments, the Court was reluctant to declare the laws unconstitutional. This is accounted for by the Court's insistence on creating uniformity among these judgments. Greater conflict occurred between the Constitution and Articles 61 and 62 of Abu Dhabi Law than occurred between the Constitution and the Alcoholic Drinks Laws of Abu Dhabi and Sharjah. The fact that there was seen to be no conflict between the Constitution and Articles 61 and 62 naturally led the Supreme Court (for the purpose of creating uniformity among its judgments) to deny the existence of conflict between the Alcoholic Drinks Laws and the Constitution. Thirdly, the Supreme Court in interpreting and applying Article 7 of the Constitution in the judgments mentioned above, distinguished between civil and criminal matters. In answering the question of the legality of bank interest, the Court considered the application of the Shari'a as a matter of policy to be left to the legislature, and not for the judiciary to decide. Concerning the application of the Shari'a in criminal matters, the Court declared that the lower federal courts should apply the punishments prescribed by the Shari'a in Hudud offences. Indeed, practice in the UAE shows the application of Shari'a in the sphere of criminal matters only; it does not apply to commercial matters, especially in the case of applying interest in commercial law as proven by the Supreme Court in the Junatta Bank case. The roots of such a distinction can be found in the answer to the question, why was the application of Shari'a rules regarding Hudud offences made obligatory by the Supreme Court, while the application of the Shari'a rules affecting bank interest was not? The probable answer is that the Supreme Court has shied away from applying the Shari'a where it would threaten orderly economic development and the modernisation of its institutions.67 The application of Hudud punishments, by comparison, threatens no such disruption.

21 citations


Journal ArticleDOI
TL;DR: It is argued that the term "public health" once had a relatively clear and widely understood meaning, and that it served, for a time, to provide some concreteness to the concept of the "police power."
Abstract: Public health is one of the most frequently discussed concepts in constitutional law. As any student of the subject knows, references to public health, or the laws designed to protect it, appear in many of the Supreme Court's most famous opinions, such as Gibbons v. Ogden,l Slaughter-House2 and Lochner v. New York.3 In all of those cases, public health is discussed in conjunction with the police power, that elusive power of the states to regulate their internal affairs. To most scholars, however, public health itself has had no real import to the development of constitutional law theory. The Court's use of the term is seen at best as rhetorical and at worst as obfuscatory.4 Both "public health" and the "police power" that states used to advance it are seen as meaningless terms that the New Deal Court wisely put aside.5 In this paper I challenge that assessment of public health's role in constitutional law. I argue that the term "public health" once had a relatively clear and widely understood meaning, and that it served, for a time, to provide some concreteness to the concept of the "police power." When the ante-bellum or Reconstruction Court stated that the police power enabled states to protect the public health, the Court was following widely accepted traditions and invoking terms whose meanings were relatively well understood. By associating the police power with public health, the Court was thereby acceding to the commonly shared view that public

19 citations


Journal ArticleDOI
TL;DR: Character education is not new, and the ground swell of renewed interest among educators, parents, and con cerned citizens is a relatively recent phenomenon as mentioned in this paper, but it is not a new concept.
Abstract: While the concept of public school character education is not new, the ground swell of renewed interest among educators, parents, and con cerned citizens is a relatively recent phenomenon. We examine here the history of character education, some of the reasons for its suc cessful reintroduction during the last decade, and how grass roots ini tiatives, organizational and political endorsements, and U.S. Supreme Court decisions have supported this success.

17 citations


Book
08 Oct 1996
TL;DR: Hixson as discussed by the authors investigated the Supreme Court's handling of pornography and argued that pornography should be up to the individual and not subject to Congressional politics and public opinion, which would prejudice the Court's ability to interpret the Constitution fairly.
Abstract: Discussing Supreme Court decisions regarding obscenity, Richard F. Hixson highlights the views of Justices William J. Brennan and John Paul Stevens, borrows from the pioneer decisions of Judge Learned Hand, and consults the work of contemporary First Amendment scholars; finally, though, he relies not on public debate or political machinations but on the justices own published opinions, which are, as he says, "the most tantalizing documents of all."Hixson proceeds chronologically through eleven chapters, with each chapter featuring a specific aspect of the constitutional problem and the approach or solution espoused by a particular justice. Through his case-by-case analysis of the many Supreme Court obscenity rulings, Hixson relates each decision to the temper of the times.In this investigation of the Supreme Court s dealings with obscenity, Hixson asks and answers in detail a series of pertinent questions. Do Congressional politics and public opinion prejudice the Court s ability to interpret the Constitution fairly? Must adults be treated the same as children? What are the limits, if any, of "content restriction" on obscene materials? How much "expressive activity" is, or should be, protected by the First Amendment? Does pornography discriminate against women? How protective of the individual can the Supreme Court be and, at the same time, allow as many voices as possible to be heard?"Pornography and the Justices "differs from other studies of pornography in its unique focus and its fresh conclusion, which is a composite of views garnered from the Supreme Court justices. As long as there is ample protection of minors and nonconsenting adults, Hixson argues, obscenity should be up to the individual. Separating himself from others who have discussed the issue, Hixson contends that the freedom to speak is as important as the freedom to be heard: it is essential to be able to speak whether or not anyone is listening.For Hixson, the clear trajectory of Supreme Court opinions implies that the freedom to purchase obscene pornographic matter should be restricted only by time, place, and manner considerations. If a person wants pornography, he or she should be able to get it, albeit perhaps from a higher shelf, in a secluded room, or at a theater clearly marked for adults."""

14 citations


Posted Content
TL;DR: The authors examined whether jurors' social class status is equally as important as jurors' racial and ethnic characteristics in explaining disproportionate representation on jury panels, and found that the analysis of jury representation based on a single criterion, such as race, does not delineate the true extent of discrimination in jury selection.
Abstract: The U.S. Supreme Court has recognized the racial background of prospective jurors as an important dimension for evaluating jury participation. Recent Supreme Court decisions, however, have downplayed the importance of other relevant achieved status considerations, such as income and occupational standing, and the Court has yet to give social class "cognizable" status in evaluating the fairness of the jury selection system. The main thrust of this article is to examine whether jurors' social class status is equally as important as jurors' racial and ethnic characteristics in explaining disproportionate representation on jury panels. The research site is Orange County, California. Probit modelings are the analytic methods used. The analysis reveals that jurors' social class backgrounds are important determinants of jury participation, perhaps even more than racial and ethnic considerations of unrepresentative juries. The findings suggest that the analysis of jury representation based on a single criterion, such as race, does not delineate the true extent of discrimination in jury selection. For example, when jurors' social class backgrounds were incorporated into the analysis of jury participation, jurors' social class positions, measured by their occupational prestige, annual income, and managerial authority at the work place, exerted greater influence than race in explaining disproportionate jury representation. Similarly, when both the race and social class of jurors were simultaneously analyzed, African American and Hispanic prospective jurors with higher incomes and jobs of greater prestige were systematically overrepresented on jury panels. Since jurors' race and social class positions together provide a more comprehensive view of disproportionate jury representation by various segments of community populations, future Supreme Court decisions need to take both race and social class factors into consideration in order to evaluate unrepresentative juries and to assess the extent of systematic discrimination in jury selection.

14 citations


Journal ArticleDOI
TL;DR: In this paper, the authors discuss the current trends in arbitrability in the United States and present a survey of arbitration agreements in the US, focusing on specific types of disputes.
Abstract: THIS ARTICLE addresses the current trends in arbitrability in the United States. The issue of arbitrability of claims other than statutorily created claims is now undisputed, as long as the underlying contractual agreement embraces the dispute. Likewise, the result would appear to be virtually the same for most statutorily created claims with the result that US courts will enforce almost all agreements to arbitrate disputes, regardless of the genesis of the claims. This article is divided into two main sections. First, the law governing arbitrability is discussed. The second part analyses current trends in the arbitrability of specific types of disputes. ### (a) The Federal Arbitration Act Congress passed the Federal Arbitration Act in 1925 (FAA).1 Historically, US courts had refused to enforce arbitration agreements, jealously guarding their dispute resolution monopoly. The FAA began the process of ending the long standing judicial hostility towards arbitration.2 The FAA gives arbitration agreements the same effect as other contracts. Agreements to arbitrate under the FAA ‘shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract’.3 The US Supreme Court has clearly stated that the FAA creates a strong presumption of arbitrability: ‘the [FAA] establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favour of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or like defense to arbitrability.’4 ### (b) Supreme Court Decisions Concerning Arbitrability In a series of decisions over the last 20 years, the US Supreme Court has clearly defined the types of disputes subject to arbitration pursuant to the FAA. The Court's decisions represent a strong endorsement for arbitration as an alternative form of dispute resolution. In each of the cases discussed below, the …

12 citations


03 May 1996
TL;DR: The U.S. Supreme Court in 2005 affirmed the constitutionality of the so-called beef check-off program, one of the 18 generic promotion programs for agricultural products that are now active nationally.
Abstract: The U.S. Supreme Court in 2005 affirmed the constitutionality of the so-called beef check-off program, one of the 18 generic promotion programs for agricultural products that are now active nationally. Supporters view check-offs as economically beneficial self-help activities that need minimal government involvement or taxpayer funding. Producers, handlers, and/or importers are required to pay an assessment, usually deducted from revenue at time of sale - thus the name check-off. However, some farmers contend they are being "taxed" for advertising and related activities they would not underwrite voluntarily. The Supreme Court's decision to uphold the beef check-off is considered significant for the future of the other programs, although the Court left open the possibility of additional challenges.

Journal ArticleDOI
James C. Beck1
TL;DR: The history of the death penalty in the United States is reviewed and the role of psychiatry in the assessment and treatment of persons who have been charged with capital crimes is discussed.

Journal ArticleDOI
TL;DR: In this paper, the U.S. Supreme Court has recognized the racial background of prospective jurors as an important dimension for evaluating jury participation, but the Court has not recognized the importance of other relevant achieved status considerations, such as income and occupational standing, in evaluating the fairness of the jury selection system.

Journal ArticleDOI
TL;DR: Using the hermeneutic/objectivist approach put forward by Paul Ricoeur, the authors analyzes the metaphoric language of six major Supreme Court decisions that span 70 years of First Amendment interpretation.
Abstract: The “marketplace of ideas”; is not only an enduring metaphor to describe how freedom of expression works in a democracy, but it also is a real‐world “guidebook”; for everyday legal decision making and interpretation of the First Amendment. This article asks the reader to move beyond the “marketplace”; metaphor to discover a deeper mythic and metaphoric image that transcends the social, political and economic world of cases and controversies. Using the hermeneutic/objectivist approach put forward by Paul Ricoeur, this article analyzes the metaphoric language of six major Supreme Court decisions that span 70 years of First Amendment interpretation. The result is the uncovering of a new framing metaphor—the GUARDIAN—that transports our thinking about freedom of expression into our deepest myth‐consciousness. This article demonstrates how mining our legal texts for new meanings of freedom of expression, unencumbered by traditional philosophical or methodological paradigms, may reveal new understandings about ...


Journal ArticleDOI
TL;DR: Roe v Wade, adjudicated in 1973, has proven to be the watershed between law and science and tied viability to personhood, and marked it as the time at which the fetus could survive outside the mother's womb, albeit with artificial aid.
Abstract: Roe v. Wade, adjudicated in 1973, has proven to be the watershed between law and science. Justice Blackmun, writing for the majority, said: \"We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer.\"l By essentially eliminating the question of life as the time related value for defining rights of the conceived as opposed to disposal of the conceived the court was free to establish an arbitrary point, or condition, which turned out to be convenient for the mother, prior to which disposal would be the legal right of the mother. This point was decided to be viability, which was cited to be between 24 and 28 weeks post-fertilization.2 Blackmun tied viability to personhood, and marked it as the time at which the fetus could survive \"outside the mother's womb, albeit with artificial aid.\"3

Journal ArticleDOI
TL;DR: This article focused on four recent United States Supreme Court decisions which have profound implications for political redistricting and concluded that the combined force of these cases does not yet spell the end of race-conscious redistricting, but does require that more weight be given to traditional redistricting criteria when designing districts that will withstand legal challenges.
Abstract: This paper focuses on four recent United States Supreme Court decisions which have profound implications for political redistricting. These cases are Holder v. Hall, Johnson v. De Grandy, Shaw v. Reno and Miller v. Johnson. Each of these cases place limits on the scope of Section 2 of the Voting Rights Act when conducting a political redistricting or fashioning a remedy for a Section 2 violation. These cases have resolved a number of important issues in redistricting while creating yet new issues to be resolved. Although demographers are not in the business of practicing law, they must clearly understand the legal requirements and often subtle nuances imposed by the case law. The paper concludes that the combined force of these cases does not yet spell the end of race conscious redistricting and therefore, effectively repeal the Voting Rights Act but does require that more weight be given to traditional redistricting criteria when designing districts that will withstand legal challenges.


Journal ArticleDOI
TL;DR: This paper analyzed the social consequences of racial slurs in the student press and suggested that what cannot presently be accomplished through the courts may be achieved by community action and peer pressure, which can be achieved through peer pressure.
Abstract: This article analyzes the conflict between free speech and equality in higher education at public universities. Borrowing from the anthropology of representation and critical legal theory, it explores the social consequences of racial slurs in the student press. Confronted by Supreme Court decisions against speech codes, how can a campus promote respect and discourage stigmatizing practices? This case study suggests that what cannot presently be accomplished through the courts may be achieved by community action and peer pressure.

Journal ArticleDOI
TL;DR: This article examined eight recent Supreme Court decisions that have important implications for public administrators, including public personnel policy, solid waste management, budgeting and finance, taxation, privacy, and public school education.
Abstract: This article examines eight recent Supreme Court decisions that have important implications for public administrators. The areas examined include public personnel policy, solid waste management, budgeting and finance, taxation, privacy, and public school education.

Journal ArticleDOI
TL;DR: In this paper, the authors examine the current state of the law on affirmative action in the United States and Canada and examine the extent to which the scope for affirmative action measures has been reduced.
Abstract: This article seeks to examine the current state of the law on affirmative action in the United States and Canada. Drawing upon developments at both a statutory and constitutional level it considers to what extent the law permits or requires measures to alter the composition of institutions to make them more representative in terms of race or gender. Its primary focus is on employment. It argues that constitutional provisions and judicial interpretation in Canada has been more sympathetic to affirmative action measures, especially in the past decade. After surveying the early development of affirmative action law in the United States it focuses on recent developments, notably the Civil Rights Act of 1991 and recent Supreme Court decisions such as the Adarand v Pena case, to examine the extent to which the scope for affirmative action measures has been reduced. In Canada the article considers both Charter equality jurisprudence and statutory developments such as the Employment Equity Act of 1986. The articl...


Journal ArticleDOI
TL;DR: In this article, the reform of amendment 39 was revised before it went into effect by Amendment 44 of the Penal Law, and the current law stipulates that under mitigating circumstances the court may set a penalty lighter than the mandatory one prescribed by law, but that the court must state its reasons for so doing.
Abstract: In the Israeli legal system, trial courts determine offenders' punishments. Israeli law only sets maximum penalties for crimes and offenses, and rarely provides for mandatory punishment. Even the few instances of mandatory punishment are subject to the judicial discretion recently bestowed by amendment 39 of the Penal Law authorizing the court to impose a sentence lighter than the mandatory punishment, under special circumstances. The broad discretion bestowed by amendment 39 created a situation in which in practice the law would no longer provide for substantive mandatory sentencing. In view of this, the reform of amendment 39 was revised before it went into effect by Amendment 44 of the Penal Law. The current law stipulates that under mitigating circumstances the court may set a penalty lighter than the mandatory one prescribed by law, but that the court must state its reasons for so doing. Discretion is witheld in cases of mandatory life imprisonment for murder, the most important instance of mandatory punishment in our legal system. The law further stipulates that only in three well-defined circumstances may the court pass a reduced sentence for murder.

Journal Article
TL;DR: The history of congressional and presidential interpretation of the United States Constitution is not well-known as mentioned in this paper, and the history of non-judicial interpretations of the Constitution are often implicit rather than overt, embedded in political decisions.
Abstract: The prominence of judicial review in the history of constitutional interpretation in this republic often overshadows the essential and ongoing role of other institutions in the interpretation of the Constitution of the United States. The finality of Supreme Court decisions (barring reversal by the Court or by amendment) plays a major-and appropriate-role in focusing our attention on the courts' decisions, but other factors also shape our perceptions. It is, at least superficially, I easy to trace the course of Constitutional interpretation in the reported cases, and there is an abundance of secondary literature. The history of congressional and presidential interpretation, in contrast, is much less wellknown.z It is, furthermore, intrinsically more difficult to grasp. Non-judicial interpretations of the Constitution are often implicit rather than overt, embedded in political decisions that may include no express discussion of constitutional issues at all. The collective nature of congressional action and the often-confidential character of executive branch deliberations add to the difficulties of working out the history of non-judicial interpretation.3

15 Apr 1996


Journal Article
TL;DR: Toronto lawyer Marilou McPhedran discusses the recent Beharriell and O'Connor decisions and how they affect physicians.
Abstract: The confidentiality of patient records, particularly in cases where sexual assault is alleged, has been called into question by two recent Supreme Court decisions. Toronto lawyer Marilou McPhedran discusses the recent Beharriell and O9Connor decisions and how they affect physicians.

Journal ArticleDOI
TL;DR: In this paper, a New York Times columnist Anthony Lewis wrote a piece for Esquire magazine entitled "Sex... and the Supreme Court." In it, Lewis, who was then working the Times's Supreme Court beat, observed that the nine not-so-old men sitting on the Court seemed to be quietly "liberating the country from puritanism." Equally surprising was the fact that the liberation was proceeding from a landmark decision rendered in 1957, called Roth v. United States, in which the High Court had seemingly canonized the Comstockian attitude toward sexually-oriented
Abstract: In June 1963, New York Times columnist Anthony Lewis wrote a piece for Esquire magazine entitled "Sex... and the Supreme Court." In it, Lewis, who was then working the Times's Supreme Court beat, observed that the nine not-so-old men sitting on the Court seemed to be quietly "liberating the country from puritanism." Equally surprising was the fact that the liberation was proceeding from a landmark decision rendered in 1957, called Roth v. United States, in which the High Court had seemingly canonized the Comstockian attitude toward sexually-oriented expressive material by holding that "obscenity," i.e., "material having a tendency to excite lustful thoughts," was not protectable by the Constitution's free speech or free press guarantees. The reason it was not, said Justice William J. Brennan, Jr., speaking for the Court, was because obscenity was "utterly without redeeming social importance." In other words, obscene expression was worthless and so unworthy of 1st Amendment protection. The contradictory encouraging evidence cited by Lewis consisted in largely unnoticed Supreme Court decisions, after Roth, that had resulted in the freeing from State or federal censorship of two French films, The Game ofLove and Lady Chatterley's Lover, both based on well-known risque literary works, plus a nudist magazine called Sunshine and Health, and three gay-oriented magazines titled MANual, Trim and Grecian Guild Pictorial. (Today such material would not even raise Jesse Helms's eyebrows.) What the Court seemed to say in freeing those works was that, in its view, they did not meet the Roth test for obscenity, that is, the Brethren could not believe that they aroused the average person's lust, and so they ought to be deemed "constitutionally protected" from government suppression. In the gay-oriented magazines case, Justice Harlan, speaking for the Court, observed that, to be properly counted obscene, material had not only to be calculated to arouse its auditor's lust, it also had to be "patently offensive," terminology that some Court-watchers supposed meant it