Showing papers on "Supreme court published in 1970"

On the Economics of Law and Order

Abstract: Professor Becker has recently demonstrated the usefulness of "conventional " economic analysis in coming to grips with what is usually considered to be a noneconomic problem-crime and punishment (Becker 1968). In the article, he derives criteria for optimal levels of expenditure on law enforcement and form of punishment subject to a given legal framework. The point of this paper is that the legal framework need not be taken as constant but is itself subject to policy choice. Therefore, I propose to extend the Becker framework to take account of this additional area of social choice and compare the implications of this model with the original, less complete version. Among countries and over time, one can find enormous variations in "rules of the game" pertaining to standards of evidence, presumption of guilt, rights to counsel, and procedures for arrest and indictment. Rulings of the U.S. Supreme Court upholding rights of accused persons and restricting the freedom of police to obtain evidence in certain ways have become a major political issue of late. Indeed, the Becker model as formulated would seem to agree with some proponents of "law and order" who argue that it is undesirable to tie the hands of the police with legal niceties. After all, it is quite clear that the costs of apprehending and convicting a given percentage of offenders will be lower without these conventions than it would be with them. Note that in certain conditions, such as a state of martial law, many legal safeguards are relaxed, presumably to apprehend a maximum proportion of offenders with minimum cost. Despite Geneva Conventions, it has not been unknown for occupying armies to punish entire communities when certain offenses

The Supreme Court and the idea of progress

Abstract: A history of the Warren Court and its impact on the political and legal system. Best known for its treatment of the Brown v. Board of Education decision, which Bickel believed was headed for obsolescence and abandonment. Based on the Oliver Wendell Holmes Lectures at Harvard Law School in 1969.

Dissent Behavior and the Social Background of Supreme Court Justices

Abstract: A judge is a black-robed homo sapiens. As such he is subject to 1~ the same general forces that condition and influence other men and their behavior. That is, judges, like other men, are born, develop, mature, and become socialized. Since all human behavior can be conceptualized as non-spontaneous responses to internal and external stimuli mediated by the properties of some relevant system or systems, there is no theoretical bar to conceptualizing the behavior of the judge in the same fashion.' In this paper our general focus is on dissent behavior.2 Specifically, the paper represents an exploration of dissent tendencies among Supreme Court justices and of some of the factors that may be associated with such tendencies. The significance of the tendency, or predisposition, to dissent as

External Variables, Institutional Structure & Dissent on State Supreme Courts

Abstract: State judiciaries have not received their proper share of attention from political scientists. Although there have been signs of change in this situation, it remains true that we know much more about the United States Supreme Court than about any court or group of courts at lower levels. The study of state courts presents many obstacles, so that if the present attempt to find out a little about the rates of dissent and the reasons therefore is not definitive, one can hardly blame the authors. One hopes that they will continue along the present lines.

The Supreme Court and Social Change A Preliminary Inquiry

Abstract: Although it is frequently the subject of scholarly and political discussions, there is surprisingly little empirical evidence available to support assertions made about the Supreme Court’s ability to influence social change. With some exceptions, the Supreme Court does not openly discuss this question in its written opinions. However, it is difficult to imagine that the justices are not concerned with the impact of their decisions. More likely they feel restrained by the limits of their role to discussing only the legal rights of the parties to each case. But it cannot be far from their minds and occasionally their concerns reach the surface. One reason why the Court’s effectiveness as an agent of social change is not much discussed by the justices is that they operate under a set of assumptions which renders such discussion unnecessary. For official purposes at least, the justices tend to assume that once the nation’s highest court has made a decision there will be ready and willing compliance from those to whom the decision is directed. But this overlooks the probability that most social changes occur as the incremental result of multi-institutional and societal forces rather than as a direct result of a particular Supreme Court decision or set of decisions. It also overlooks the built-in opportunities for noncompliance and evasion which characterize the American judicial bureaucracy. The Supreme Court rarely has either the first or last word on a subject. It

The Right to Privacy

Abstract: To what extent is the individual protected from arbitrary and unreasonable intrusions into his personal privacy by the Bill of Rights and the Fourteenth Amendment? The aim of Dr. Beckenridge's study is to answer this question, which is of such crucial relevance in America today. The Right to Privacy is based upon the belief that the individual has the right to determine the degree to which he wishes to share of himself with others and has control over the time, place, and circumstances in which he communicates with others; that he has the right to withdraw or participate as he sees fit; and the right to control dissemination of information about himself. But since man lives in a community of others, inescapably he has the need to participate and communicate with others. When this apparent dichotomy is coupled with the recognized power of government, even in a democracy, to function for the public good, the question arises: to what extent and in what areas may an individual's personal affairs be exposed without his knowledge or consent? Sooner or later it becomes the business of judges to determine the limits of individual privacy claims, and it is to the decisions and opinions of judges, primarily of the United States Supreme Court, that one must look to find the status of claims of a right to privacy--what has been called man's "right to be let alone." In determining how far the United States government has gone in invading the right to privacy--and what it has done to protect that right--the author examines recent court decisions, especially those of the United States Supreme Court, and some court opinions as they interpret the Bill of Rights and the Fourteenth Amendment. He also scrutinizes the extension or incorporation of the Rights into the Fourteenth Amendment, and the relation of police power to individual rights. This timely study also demonstrates that some "rights" are superior to others and that they come info conflict--conflicts which still have to be resolved.

Toward and Beyond a Theory of Supreme Court Impact

Abstract: It is often presumed that the hierarchical organization of the American judiciary centralizes much lawmaking authority within appellate courts and that trial courts generally defer to the Supreme Court in deciding cases of constitutional law. The operation of this role constraint on lower courts is illustrated by the Indiana Supreme Court’s reaction to Henry Miller’s Tropic of Cancer, which was involved in a local obscenity case. After expressing distaste for the book, the Indiana Court deferred to the authority of the superordinate court and reversed the conviction:

Methodological Concerns in Studying Supreme Court Efficacy

Abstract: Only a few years ago it was customary and appropriate to begin an essay on Supreme Court efficacy by lamenting the paucity of empirical studies dealing with this problem. Such an introduction is no longer in order, since we have recently witnessed a flourishing of research on the actual consequences of judicial decisions. Both the appearance of at least one book of readings on Supreme Court impact (Becker, 1969) and the focusing of panels around this topic at political science conventions are indications of the emergence of "legal impact" as a significant field of scholarly inquiry. Ironically, however, the proliferation of impact studies has muddled our understanding of judicial effectiveness as much as it has clarified it. After surveying the literature reporting the reactions of police, school teachers, draft board members, and the like to various Supreme Court decisions, one is bewildered if he attempts to relate, reconcile, or "propositionalize" the hodgepodge of findings that has accrued. We are left with the common sense truism that patterns of compliance and defiance with the Supreme Court vary-from decision to decision, from community to community, and from individual to individual. Such a trivial conclusion could have been reached by anyone who simply reads Time Magazine and notes, say, the continuation of police harassment of minorities and the decline of sex censorship.

Possible Adaptation of Public Utility Concepts in the Health Care Field

Abstract: The last of these questions can be answered "Yes" without hesitation. The Court has uniformly approved price fixing legislation since the early New Deal, and it cannot be expected to reverse forty years of consistent holdings, even with recent and impending changes in its membership. Decisions sustaining the propriety of legislation that authorizes the strict regulation of public utilities could be cited in profusion, and there have been no recent and significant Supreme Court exceptions. For example, in I934 the Court upheld a New York statute which established a milk control board with power to fix maximum and minimum retail prices. Mr. Justice Roberts, speaking for the majority, said that the fifth and fourteenth amendments

Politics in the USA

Abstract: 1. A Government of Limited Power: The Challenge of American History 2. The Nature of American Politics Models of Politics 3. The Two-Party System 4. Politics and Elections 5. Pressure Politics 6. Congressional Politics 7. Presidential Politics 8. The Media and Politics 9. Politics and the Administration 10. Politics and the Judiciary 11. The Making of American Domestic Policy 12. The Making of American Foreign Policy Appendices 1. The Constitution of the United States 2. Factual Tables 3. Presidents and Vice Presidents of the United States 4. Chief Justices of the United States Supreme Court 5. Presidential Elections The Popular Vote and Electoral College Votes, 1932-2004 6. The Composition of Congress, 1933-2005

Is Innocence Irrelevant? Collateral Attack on Criminal Judgments

Abstract: Legal history has many instances where a remedy initially serving a felt need has expanded bit by bit, without much thought being given to any single step, until it has assumed an aspect so different from its origin as to demand reappraisal-agonizing or not. That, in my view, is what has happened with respect to collateral attack on criminal convictions. After trial, conviction, sentence, appeal, affirmance, and denial of certiorari by the Supreme Court, in proceedings where the defendant had the assistance of counsel at every step, the criminal process, in Winston Churchill's phrase, has not reached the end, or even the beginning of the end, but only the end of the beginning. Any murmur of dissatisfaction with this situation provokes immediate incantation of the Great Writ, with the inevitable initial capitals, often accompanied by a suggestion that the objector is the sort of person who would cheerfully desecrate the Ark of the Covenant. My thesis is that, with a few important exceptions, convictions should be subject to collateral attack only when the prisoner supplements his constitutional plea with a colorable claim of innocence. If there be fear that merely listening to such a proposal may contaminate, let me attempt to establish respectability by quoting two statements of Mr. Justice Black:

The Supreme Court and American Trade Associations, 1921–1925

Abstract: In the 1920's, the Supreme Court reversed its previously hostile position on the legality of many activities of trade associations. Professor Carrott finds that the primary cause of the court's shift lay in the changing social milieu of the decade, as the older insistence on rigorous competition was supplanted by an emphasis on the value of cooperation in business.

The Politics of "Advice and Consent"

Abstract: Counting the rejections of Judges Haynsworth and Carswell, there are now twenty-three nominations to the Supreme Court that have been defeated or postponed by the Senate or withdrawn by the President in the face of defeat The Senate is jealous of its "advice and consent" function, and history shows that confirmation will be withheld for a variety of reasons The process of confirmation or rejection by the Senate is a part of the American political system? unavoidably, perennially and, perhaps, logically WITH THE SENATE'S rejection of Clement F Haynsworth, Jr, last November and G Harrold Carswell

Gault: Procedural Change and Substantive Effect

Abstract: Established to provide noncriminal treatment for youths, juve nile courts in the United States have been subjected recently to mounting criticism. Emphasis upon individual rights and the dis covery that the courts have often failed to achieve their goals contributed to an upheaval in the juvenile courts culminating in the Gault decision by the Supreme Court on May 15, 1967. To gauge the effects of the decision, this study analyzed a juvenile court's records for a two-year period. Both quantitative and quali tative changes were discovered, even though no statutory changes occurred. A doubling in the percentage of cases with counsel and a reduction in the total number of cases reflect an increased emphasis upon legal fact-finding. This change in normative em phasis was brought about primarily by changes in the attitudes of court personnel and law-enforcement agencies.

A Note on Senatorial Consideration of Supreme Court Nominees

Abstract: If a President should desire, and if chance should give him the opportunity, to change entirely the character of the Supreme Court, shaping it after his own political image, nothing would stand in his way except the United States Senate. Few constitutional questions are then of more moment than the question whether a Senator properly may, or even at some times in duty must, vote against a nominee to that Court, on the ground that the nominee holds views which, when transposed into judicial decisions, are likely, in the Senator's judgment, to be very bad for the country. It is the purpose of this piece to open discussion of this question; I shall make no pretense of exhausting that discussion, for my own researches have not proceeded far enough to enable me to make that pretense.' I shall, however, open the discussion by taking, strongly, the position that a Senator, voting on a presidential nomination to the Court, not only may but generally ought to vote in the negative, if he firmly believes, on reasonable grounds, that the nominee's views on the large issues of the day will make it harmful to the country for him to sit and vote on the Court, and that, on the other hand, no Senator is obligated simply to follow the President's lead in this regard, or can rightly discharge his own duty by so doing. I will open with two prefatory observations. First, it has been a very long time since anybody who thought about the subject to any effect has been possessed by the illusion that a judge's judicial work is not influenced and formed by his whole lifeview, by his economic and political comprehensions, and by his sense, sharp or

Anti-evolution sentiment and behavior: the case of Arkansas.

Abstract: T HE use of legislation by initiative to prohibit the teaching of evolution in Arkansas affords a unique opportunity to analyze the assumptions of many historians about the nature of the Fundamentalist movement during the 1920s. The Arkansas law of 1928 was the only one to be enacted through initiative and remained in effect until ruled unconstitutional by the United States Supreme Court on November 12, 1968.1 Among the precipitating causes of the Fundamentalist controversy in twentieth-century America were a vague sense of guilt associated with the failure of the United States to achieve its goals after World War I; the shock of the move from farm to city; the decline of interest in the church and traditional values; the challenge of modernism, evolution, and other forms of new knowledge; a fear of the unknown; and the hatreds engendered by the Red Scare and the Ku Klux Klan.2 The Fundamentalists of the 1920s, believing in the literal inerrancy of the Bible, desired to return to a set of fundamental Protestant beliefs and to rescue America from the evils of modernism and atheism. They frequently advocated sumptuary legislation, and many of them acted upon their faith by forming organizations aimed at the "evolution menace." In fact, Fundamentalists were such eager anti-evolutionists that the terms are often used interchangeably.3 One group-the World's Christian Fundamentals Association, begun in 1916 by William Bell Riley-sought local, state, and federal laws against the teaching of evolution and adopted a uniform anti-evolution bill. At its maximum membership in 1927, it numbered some six mil-

Community Experiences with the 1969 Attack on Sex Education.

Abstract: What's going on here? The legislature of a Southern state overwhelmningly votes to protect all school children below the ninth grade from any kind of sex education. A meeting of a Midwestern parentteacher organization is turned into a shouting match, and out on the highway a new billboard reads, "What my child should know, I will tell her. Oppose sex education in our schools." The board of education of a Far Western state unanimously accepts as the basis of its family life education a report that criticizes the United States Supreme Court, the United Nations, and mental health programs, and labels humanism "a 20th century synonym for atheism." As most readers must know, what is going on here is a particularly violent reaction against sex education that should give 1969 its own peculiar place in the histories of public education (Baker, 1969). To what extent was 1969's Great War over Sex Education in the Schools a newspaper story, and to what extent was it an actual fact of life in the communities where The Family Coordinator readers live and work? To get some perspective, we asked the journal's newly formed Family Life Education

The Suscol Principle, Preemption, and California Latifundia

Abstract: THE CALIFORNIA LAND ACT of 1851, which provided for a Board of Land Commissioners to adjudicate the more than eight hundred claims inherited by the United States from Mexico, added heavily to the burdens of the United States Supreme Court and the federal district courts of California. Admittedly, judges at all levels had gained experience by adjudicating grants made by Spain, France, and England in the upper Mississippi Valley and the Gulf region, but the experience and precedents did not adequately prepare the courts for the many confusing and fraudulent claims in California. At first, from 1853 to 1855, the judges took a liberal position on the California claims, readily confirming titles that were far from complete and several that under Mexican law would have been considered invalid. One of the

Elimination of Gender Discriminatory Legal Provision by the Supreme Court of Nepal with Reference to Women's Right to Property

Abstract: Not available Key words: Gender Discriminatory; Legal Provision; Supreme Court; Women's Rights; Nepal Tribhuvan University Journal Volume XXVI No 1, 2009 Page: 37-54

The Supreme Court's Impact: Some Problems of Conceptualization and Measurement

Abstract: The impact of what judges decide is a crucial part of what is studied by those sharing a political rather than only a legal perspective on the United States Supreme Court. It has become important as we have shifted our attention from "output, which is the decision of the Court including its orders and statement of policy" to consideration of "outcome, which is the final results or impact of output" (Barth, 1968: 315, note). This development is much more recent than the beginnings of the political perspective on the courts. Explicit attention to impact, backed by studies of impacts of particular decisions, is less than twenty years old, dating from the aftermath of Brown v. Board of Education (1954), which made political scientists aware that compliance with decisions of the Supreme Court was neither automatic, immediate, nor uniform. As Krislov (1963: 7) has remarked, from the standpoint of Court process, the decision in Brown v. Board of Education has had its greatest effect in educating "students as to the limits and operations of the court system generally."

The Case of Coal: Should All Horizontal Mergers Be Held Illegal?

Abstract: IN the last decade, decisions of the Supreme Court have breathed new life into the merger provisions of the antitrust laws. Some practitioners might say they have made Section 7 of the Clayton Act into a dragon with a tongue of flame. Such attorneys envisage all capital transactions as in danger of incineration and fear that the economy may be slowed by such a restrictive interpretation of anti-merger legislation." Mergers of competing firms have been the subject of particularly stringent rules. There is authority for the proposition that no such merger can be lawful.2 Let us test the validity of that rule in an industry which has seen little anti-merger litigation. One such industry is the mining of bituminous coal. For decades the word "chaos" has been repeatedly applied to the coal business.3 Congressional hearings have been held since at least 1918, seeking some solution to the industry's "excess capacity."4 It is an industry in which there