Showing papers on "Supreme court published in 1972"

The United States Experience

Abstract: The preceding papers by Judge Rupp-v.Briinneck and Professor Vigoriti on the admonitory functions of the German and Italian constitutional courts invite a look at comparable practices in the U.S. In looking for analogies, however, it is worth beginning with a reminder of the differences between the institutions to be compared. These differences lie in the structures of the courts, in the characteristics of the systems of law, and in the traditions of judicial style. With respect to judicial review of the constitutionality of legislation, they have recently been admirably summarized by Professors Cappelletti and Geck.1 Central are the facts that American courts, including the U.S. Supreme Court, are not special "constitutional courts" and that review of the validity of statutes is not the chief form of constitutional adjudication. These and other differences affect the comparison of how courts address the lawmaking institutions, though they do not vitiate it. Where similar functions need to be served and similar problems solved, useful analogies may be found despite the differences. Briefly, constitutional issues in the United States are raised and decided daily in litigation in the ordinary courts, state as well as federal. Unlike the constitutional courts of Germany and Italy, the U.S. Supreme Court and its counterparts in the several states are simply the highest appellate courts in their respective jurisdictions,2 with no special responsibility for the constitutional questions that, by the very hypothesis of the appeal, should have already been decided by the court of first instance. Consistently with this premise, also, these American courts are not marked by distinctive rules of composition, qualifications, or method of selection like European constitutional courts; nor do the underlying concerns about the difference in outlook and style between professionally narrow and politically sensitive judges arise in the absence of a career, civil-service judiciary. Judicial review in the United States is thus both "decentralized" and "incidental" to conventional litigation, although constitutionality alone may sometimes be raised as the principal or only is-

The community adjustment and criminal activity of the Baxstrom patients: 1966-1970.

Abstract: This research examines what happened to the nearly 1,000 patients transferred from two New York State hospitals for the criminally insane to civil mental hospitals in 1966 as the result of a Supreme Court decision. Four years later, about half were in civil mental hospitals, 27 percent in the community, and 14 percent dead. Only three percent were in a correctional facility or hospital for the criminally insane. The authors stress the need for more longitudinal research on the characteristics of the criminally insane to aid in the clinical determination of dangerousness.

The Decision to Grant or Deny Certiorari: Further Consideration of Cue Theory

Abstract: Generally speaking, accountability is promoted through two devices. The first is access to the policy maker-i.e., the opportunity to be heard, to express oneself, to communicate one's preferences effectively to those whose policy actions are directly relevant. If these preferences are not sufficiently heeded, then we reserve the right to replace the incumbent with one who will provide greater satisfaction in that regard. For executives and legislators, free expression and frequent elections are appropriate means to insure accountability. But since Supreme Court justices are appointed for life (formally "good behavior," but in fact for life), access to Court review becomes crucial.

The Decision to Grant Certiorari as an Indicator to Decision "On the Merits"

Abstract: The fact that the Supreme Court seldom gives reasons for the granting or denial of petitions for certiorari has always given rise to speculation among students of the Iudicial process. Professor Ulmer regards this as "secret decision making" and implies that it is undemocratic. The present article is an interesting attempt to penetrate this veil of secrecy, concluding that the certiorari process may actually amount to a decision on the merits of the case, even though judges commonly deny that this is the case.

Recurring Litigants: Federal Agencies Before the Supreme Court

Abstract: CONTEMPORARY analysis of the United States Supreme Court has largely ignored the possible impact of the litigants per se on the Court's decision making. In part this is because for most parties, an appearance before the Supreme Court is a singular or relatively rare event. And in part, it is because those few parties who do appear frequently before the Court, e.g., the Department of Justice, do so in a whole spectrum of cases arising in very different circumstances and treated by a variety of procedures. Some federal administrative agencies do, however, appear before the Court several times each term; moreover, the problems presented in such cases are normally encompassed in a relatively narrow scope of procedural and substantive issues. One might anticipate that such extended interaction between the agencies and the Court would introduce a new dimension into decision making in these cases. Past experiences with cases involving a particular agency might affect the Court's or at least some justices' perceptions of cases brought in the future. That is, the justices are likely to form general attitudes about the goals of a particular agency's policies or the fairness of its procedures on the basis of such continued exposure and reflect these attitudes in their voting behavior. Some thirty-five years ago, Chief Justice Hughes broadly hinted that this was indeed what happened. In St. Joseph Stockyards Co. v. United States, he stated: 1

The Specific Theory of Academic Freedom and the General Issue of Civil Liberties

Abstract: Academic freedom has been blurred in law and in popular usage. Its clarification should enable the Supreme Court to grant it explicit protection under the Constitution as an identifiable subset of First Amendment freedoms. Its identification with the professional endeavors of faculty mem bers, moreover, should reduce the tendency of institutions to intrude upon the aprofessional personal liberties of the faculty even while adequately protecting the extramural professional pursuits of the faculty and assuring them of equal protection in their interests as private citizens. Adjustments of standards by the American Association of University Professors, more definitely distinguishing the special accountability of faculty members for the integrity of their professional endeavors from their roles as private citizens, is long overdue.

The Senate and Supreme Court Nominations: Some Reflections

Abstract: The Senate's rejections of the nominations of Clement Haynsworth and G. Harrold Carswell to the Supreme Court were the second and third in the present century and the ninth and tenth nominees formally rejected by the Senate in the history of the Court.' Not since Grover Cleveland has a President had two successive nominees to the same seat on the Supreme Court-or even two nominees-rejected by the Senate.2 That there should be two bitter battles over a Supreme Court nomination is neither surprising nor, in itself, any cause for alarm. When the Court is closely divided on current issues, any single appointment may be viewed as having a decisive impact on a wide range of future decisions. Controversy over the Supreme Court nominations is but a healthy reflection of the key role which the Court plays in the political system. Opposition to a presidential nominee is a traditional and effective way of challenging and focusing attention

A Proposal for the Abolition of the Incompetency Plea

Abstract: Though neither convicted of a crime nor civilly committed, many incompetent criminal defendants have been, in effect, serving life terms in state mental hospitals.1 A study of Massachusetts practice found, for example, that of all incompetent defendants committed to Bridgewater, the relevant state institution, "more ... had left by dying than by all other avenues combined."2 In Jackson v. Indiana,3 a unanimous Supreme Court ended the common practice of committing for an indeterminate time persons accused of crime but found incompetent to stand trial.4 Jackson held that an incompetency commitment cannot last

Decision-Making Rules and Judicial Strategy On the United States Courts of Appeals

Abstract: HE COMBINED use by the courts of appeals of a three-member rotating panel procedure with an en banc system provides a provocative context for testing hypotheses which relate the strategic options available to policyoriented judges with institutional decision-making rules.' One question of particular interest concerns the extent to which the dual decision-making procedures of the intermediate appellate courts facilitate a minority's ability to circumvent a majority's policy preference. Superficially, a system of rotating panels appears to facilitate a proportionate expression of minority views on a court of appeals. To grasp this proposition, the policy outcomes on the United States Supreme Court as determined by the decisionmaking rules operative there may be compared with a hypothetical instance in which the decisions of the high court are determined by three-judge panels. Two assumptions are made: (1) that the court is composed of two opposing blocs on civil liberty issues, a liberal majority of six and a conservative minority of three; and (2) that defection from a bloc is not permissible. Under these conditions, the liberal segment of the court could determine the gamut of civil liberty policy to be formulated by the court. The conservative minority must be content with either: (1) complete minority status, that is, the status quo; (2) joining the majority in order to parake in the available power to be distributed; (3) capturing votes from the majority in order to form a new coalition; or (4) awaiting shifts in the court's personnel that would be conducive to their conceptions of civil liberty policy. However, if the Supreme Court changed its decision-making procedures so as to permit the formation of threemember panels, the contours of majority-minority conflict would alter dramatically. Incorporating the additional assumptions (1) that all panels may appear with equal probability and (2) that empirically, all panels do in fact contribute equally to decision-making, then a minority of three would clearly contribute to policy-making in those instances when two members of the minority coalition combine to form a panel with a member of the majority or when the three minority members meet simultaneously to form a panel. An implicit assumption of the first eventually is

Interpreting the Criminal Code Ordinance, 1936 — The Untapped Well

Abstract: The origins of the Criminal Code Ordinance of 1936 (hereinafter, CCO) have never been fully explored. The Supreme Court of Israel has indicated that specific provisions were derived from Ottoman law, or were modelled upon an English statute, or based upon a common law doctrine. No one, however, has attempted to describe comprehensively the history of the CCO, and those who have touched upon the subject have usually contented themselves with general statements:a. The local legislator drew most of the offences included in the Criminal Code Ordinance from the well of English law.b. Everybody admits that the provisions of the Palestine Criminal Code Ordinance relating to manslaughter and murder were not derived from one source, but include different ideas and pieces of ideas that were taken, a little here and a little there, from different legal systems—English, French, Ottoman, or French in Ottoman clothing, as it existed until 1936. Before us is a mosaic of different colours composed into a single picture. As to this there is no disagreement … What is not so clear and certain is the identity of the concrete source of each of the bricks of the building that comprise the ‘collective’ legislation.

Federal Social Welfare Progressivism in the 1920s

Abstract: During an era long considered conservative, the Sheppard-Towner Mater-Nity and Infancy Act of 1921 emerges as the first federal measure passed under the successful prodding of the recently enfranchised women. Its demise coincides with and explains the weakened clout of the female voters by the end of the 1920s. The legal challenge of the opponents to the law in two Supreme Court cases offered the first test cases for federal grants-in-aid; the Court upheld the grant program. The debate throughout the history of the Act bared many of the dominant concerns of the 1920s. Although it lasted only seven years, it served as a model for future federal grants-in-aid.

The Waning of the American Jury

Abstract: The Supreme Court used poor reasoning and misinterpreted available data to support its decision in Williams v. Florida, 399 U. S. 78 (1970), that the constitutional right to trial by jury does not include a requirement that the jury have twelve members. Now, with the six-member jury gaining vogue and the Supreme Court considering whether there is a constitutional right to unanimity of verdict, it is time to become concerned about the future of jury trial as we have known and enjoyed it. OOME OF OUR STATES have six

Invasion of Privacy: A Clarification of Concepts

Abstract: Those who follow scholarly literature and legal developments on the subject of privacy have noted an unevenness in the pace of doctrinal evolution. Occasionally there has been a leap forward. In 1890, Warren and Brandeis identified privacywhich they defined, in overbroad but meaningful terms, as the right "to be let alone"-as a significant value that deserved, and indeed had to a large extent received, legal protection by the courts.' In 1965, five members of the United States Supreme Court joined in a remarkable opinion by one of their numberJustice William 0. Douglas-in which, extrapolating from the several Bill of Rights safeguards of particular aspects of privacy (such as the privilege against self-incrimination, the immunity from unreasonable searches and seizures, and the prohibition against the quartering of troops in civilian homes in peacetime), he postulated the existence of a general right of privacy which the Constitution itself protects.2 And in 1967, only two years thereafter, Professor Alan F. Westin undertook to offer a conceptual system broader than that of his predecessors in two major * Copyright ? 1972, by Louis Lusky. This article, somewhat expanded, also appears in the Columbia Law Review, LXXII (1972). 'Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review, IV (1890), 193. 2 Griswold v Contnecticut, 381 U.S. 479 (1965).

Of Rights and Remedies: The Constitution as a Sword

Abstract: In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,t the Supreme Court held that a cause of action for damages against federal law enforcement officers who violate the fourth amendment could be inferred directly from constitutional provisions. Through analysis of the reasoning which necessarily underlies such a holding, the author draws several general conclusions about the respective roles of the Court and Congress in creating and restricting remedies effectuating constitutional guarantees. He then applies his analysis to the possibilities for independent judicial creation of an action against governmental units and for legislative replacement of the exclusionary rule with compensatory remedies against the fisc.

Lawyers before the Warren Court: Civil Liberties and Civil Rights, 1957-66

Abstract: Policymaking by the Supreme Court is a complex process in which the final outcome is the product of the activities of many participants. Among the major participants, besides the nine Justices themselves, are the lower court judges, prosecuting and defense attorneys, and litigating interest groups. This Article discusses one group of participants in this process; specifically it examines the recruitment and goals of private attorneys who argued civil-liberties and civil-rights cases decided with opinion by the United States Supreme Court during the i957-66 period.' By examining the activities of these lawyers, I hope to contribute to the currently developing models of the judicial policymaking process2 and to explore the role of litigation as a political phenomenon. The many participants in the legal process often pursue different and conflicting goals, different not only in the sense that the individuals may desire conflicting results but also in the sense that they may perceive the purpose of litigation differently. For example, a lawyer or judge may view a particular case as simply a dispute between the parties and may be indifferent to its broader legal, social, or political ramifications. To another lawyer, the particular parties to the case may be of little importance; what matters is that the parties and their dispute give him an opportunity to attempt to induce courts to enunciate particular policies. It is this aspect of litigation that I will examine, for it deals directly with the issue of what kinds of models of judicial policymaking are apposite. By examining how lawyers become involved in cases, how they perceive their

Is There a Case for Separate Schools

Abstract: 1_ he 1971 U.S. Supreme Court ruling which allows court-ordered busing to speed integration of Southern schools is an attempt to facilitate enforcement of the Court's 1954 Brown decision. The fact that such an act is necessary in dicates the magnitude of the problem which has been inaccurately defined as segregation. Segregation is the condition of separation which occurs when one group forces another to remain apart. It is an effect, not a cause. What makes one group demand the separation of another group? Racism and oppression are possible answers. Racism is the belief that race is the primary determi nant of human traits and capacities and that racial differences produce the in herent superiority of a particular race. Oppression is the unjust and cruel ex ercise of authority and power. In the U.S. most institutions promote and pro tect an authoritarian decision-making hierarchy based on the values of white European superiority, male superiority, and the superiority of people with money. This support precludes possibili ties for true integration, for true integra tion demands an end to both racism and oppression.

Invasion of Privacy: A Clarification of Concepts

Abstract: Those who follow scholarly literature and legal developments on the subject of privacy have noted an unevenness in the pace of doctrinal evolution. Occasionally there has been a leap forward. In 1890, Warren and Brandeis identified privacywhich they defined, in overbroad but meaningful terms, as the right "to be let alone"-as a significant value that deserved, and indeed had to a large extent received, legal protection by the courts.' In 1965, five members of the United States Supreme Court joined in a remarkable opinion by one of their numberJustice William 0. Douglas-in which, extrapolating from the several Bill of Rights safeguards of particular aspects of privacy (such as the privilege against self-incrimination, the immunity from unreasonable searches and seizures, and the prohibition against the quartering of troops in civilian homes in peacetime), he postulated the existence of a general right of privacy which the Constitution itself protects.2 And in 1967, only two years thereafter, Professor Alan F. Westin undertook to offer a conceptual system broader than that of his predecessors in two major * Copyright ? 1972, by Louis Lusky. This article, somewhat expanded, also appears in the Columbia Law Review, LXXII (1972). 'Samuel D. Warren and Louis D. Brandeis, "The Right to Privacy," Harvard Law Review, IV (1890), 193. 2 Griswold v Contnecticut, 381 U.S. 479 (1965).

Toward a Political Supreme Court

Abstract: Obviously the Supreme Court is more than the nine individuals gowned in black and ensconced in the marble palace in Washington. Like the Presidency and the Congress, the Court must be viewed as an institution separate and apart from those who temporarily occupy the offices. It is important to examine the Court's actions and to evaluate its use of power not just for today. Like Mlaitland, one must take a deep account of yesterday in order that today not paralyze tomorrow. The ardent advocates of enhancement of presidential power when John F. Kennedy occupied the White House seem to have lost most of their ardor during the more recent tenures of Presidents Johnson and Nixon. Those prepared to have the congressional role in foreign affairs and the Senate's power to review treaty commitments bypassed for more efficient methods have begun to recognize the values inherent in such checks on the executive will, as the Viet Nam tragedy becomes ever more tragic. And, now, with a radical change of personnel on the Supreme Court already begun, there must be at least some advocates of judicial power prepared to think in more institutional terms. For, just as the power flowing to the national government from the states became irreversible at some point in our history; just as the accretion of executive authority and the reduction of legislative authority has become intractable; so, too, the authority that the Court might assert-and the manner of its assertion-could become fixed for use by Justices who succeed those who first utilize it. I do not mean that these trends cannot be reversed. Certainly they can, but only at the cost of weathering a constitutional crisis with all its correlative consequences and dangers. The proper question about the Court today-before the crisis is upon us-is not whether we should reverse the flow of authority, but whether it should be slowed or speeded. The question is whether the essential