Showing papers on "Supreme court published in 1975"

The Independent Judiciary in an Interest-Group Perspective

Abstract: We believe that at a deeper level the independent judiciary is not only consistent with, but essential to, the interest-group theory of government. Part I of this paper explains our theory of the independent judiciary. Part II discusses several implications of the theory, relating to administrative regulation, the form of interest-group legislation, the tenure of judges, and constitutional adjudication. The appendix to this paper presents an empirical analysis of judicial independence using data on Acts of Congress that have been held unconstitutional by the Supreme Court.

Wealth Neutrality and Local Choice in Public Education

Abstract: A series of recent judicial decisions has focused public attention on the issue of local choice in the provision of public education. In Serrano vs. Priest, Rodriguez vs. San Antonio (1971), and similar cases in other states, the lower courts confirmed that education is a responsibility of the state government and held that local expenditures on education may not be a function of the taxable wealth of the local community.1 Although the United States Supreme Court has overturned these decisions in the appeal of Rodriguez vs. San Antonio (1973), the pressure to change the current system remains strong. The Supreme Court majority indicated that its decision reflected the limits of the federal constitutional authority and was not an approval of the status quo in educational finance. Litigation is now likely to shift to challenging the current methods as unconstitutional under state constitutions which, unlike the federal constitution, do deal specifically with education.2 Moreover, fundamental changes in the financing of local education may not require further pressure from the courts; state legislatures may seek to neutralize the effects of local wealth differences even if the current systems are not held to be unconstitutional. These judicial decisions and the ensuing legislative proposals run counter to the general economic view of local government finance. The basic presumption of economic analysis is that, because local governments can select different levels of service and because individuals can choose their area of residence, decentralized finance by local governments allows the provision of public services to reflect the variety of individual preferences for public services.3 Although the level of local spending may be nonoptimal because of intercommunity externalities and because of the method of local budget determination, fiscal decentralization still remains the only alternative to the insuperable problem of determining the optimal level of expenditure on a public service provided by a central government. In effect, autonomous decentralized financing of education provides a quasi market in which households can exercise their diverse preferences by their location decisions. This paper considers the problem of * Professor of economics, Harvard University. I am grateful to Charles Clotfelter for assistance with the statistical analysis, to Stephen Weiss for providing unpublished data on school expenditures, and to the Ford Foundation and National Science Foundation for financial support. I have benefited from discussions of an earlier version in seminars at Harvard, M.I.T., and Berkeley, and from comments by Noel Edelson, Eric Toder, and David Stern. An earlier and more complete discussion of this study was distributed as Harvard Institute of Economic Research paper no. 293, May 1973 (revised July 1973). 1 In Serrano vs. Priest, the landmark case in this area, the plaintiff and the courts were very much influenced by the line of argument and suggested remedies develope(l in John Coons et al. For a further discussion of the legal precedents, see Arthur Wise. 2 Almost immediately after the United States Supreme Court decision in Rodriguez vs. San Antonio, the New Jersey Supreme Court held that the current system of local finance violated the New Jersey state constitution. See Wise for a summary of the provisions of other state constitutions. I Charles Tiebout presented a formal analysis of the full efficiency of local government provision of public services under quite special conditions. See Wallace Oates and James Buchanan and Charles Goetz for a further discussion of these issues.

The Supreme Court and Critical Elections

Abstract: Several years ago Professor Robert Dahl argued that the traditional concern over the Supreme Court's power of judicial review was largely unfounded. Dahl demonstrated that seldom, if ever, had the Court been successful in blocking the will of a law-making majority. This paper argues that, had Dahl considered his data from a different perspective, he would have discovered that, by virtue of the recruitment process, the Court will rarely even attempt to thwart a law-making majority. Examining Dahl's data in the context of the Survey Research Center's election classification scheme, the paper focuses on the Court's relation to patterns of partisan change to show that the traditional philosophic concern with the counter-majoritarian nature of judicial review is largely divorced from empirical reality and has relevance only during periods of partisan realignment within the political system as a whole. The paper buttresses the argument that the Court's “yea-saying” power is more important than its “nay-saying” power, a realization which can serve as the premise from which a logically consistent justification of the Court's power of judicial review may be dialectically constructed.

The Independent Judiciary in an Interest-Group Perspective

Abstract: We believe that at a deeper level the independent judiciary is not only consistent with, but essential to, the interest-group theory of government. Part I of this paper explains our theory of the independent judiciary. Part II discusses several implications of the theory, relating to administrative regulation, the form of interest-group legislation, the tenure of judges, and constitutional adjudication. The appendix to this paper presents an empirical analysis of judicial independence using data on Acts of Congress that have been held unconstitutional by the Supreme Court.

The Morality of Consent

Abstract: "This short but provocative volume...is a fitting testimony to the author's extraordinary, though tragically brief, career as a constitutional scholar, lawyer and teacher. In just a hundred and a half literate pages, we are treated to vintage Bickel insight into every major political issue of the decade, from the civil rights movement, to the Warren Court, through the frenetic university upheavals, and-inevitably-to Watergate...A tapestry woven by a master of subtle color and texture."-Alan M. Dershowitz, New York Times Book Review "Presents the core of [Bickel's] legal and political philosophy...In the five essays that compose this volume Bickel explores the relationship between morality and law, examining the role of the Constitution and Supreme Court in our political process, the nature of citizenship, the First Amendment, civil disobedience, and the moral authority of the intellectual...All will be stimulated by Bickel's thoughtful message." -Perspective "[Bickel] wrote with astonishing clarity. It takes no legal training to understand his thinking about the law. Nor does it take a willingness to agree with him. All that's required of the reader of this important 'little' book is a concern that rivals Bickel's about the future of American society." -Newsweek "An illuminating, often a moving book, with all of Professor Bickel's rare ability to bring law to life in vivid words."-Anthony Lewis Alexander M. Bickel, Sterling Professor of Law at Yale Law School, taught at Yale from 1956 until his death in 1974.

Judicial Policy-Making and Southern School Segregation.

Abstract: IN Brown v. Board of Education the United States Supreme Court set new constitutional standards in the field of race relations law by declaring that in public education the doctrine of "separate but equal" was no longer valid.' The effect of this decision was to establish a new national policy calling for massive desegregation throughout the country, and particularly in the Southern region. The primary responsibility for implementing the national policy at the local level was given to school authorities, who were to remain under the surveillance of the equity jurisdiction of the federal district courts.2 The Supreme Court reasoned that because of their proximity to local conditions the district courts were best suited to accept the burden of judicial appraisal of school board actions. In subsequent years the Court periodically reaffirmed this position and conferred substantial powers on the district courts to facilitate the policy implementation process.3 The events which transpired in the South during the two decades following the Brown decision have been well chronicled in the pop-

Rape, race, and the death penalty in Georgia.

Abstract: Following the 1972 Supreme Court decision on capital punishment, the Georgia legislature enacted a death penalty statute that attempts to avoid constitutional objections by establishing discretionary death sentencing for 361 rape cases in Georgia, comparing legal and nonlegal variables. Results indicate that blacks convicted of raping whites were disproportionately sentenced to death.

Differential effects of jury size on verdicts following deliberation as a function of the apparent guilt of a defendant.

Abstract: The United States Supreme Court ruled in the case of Williams vs Florida (1970) that a Florida statute providing for 6-member juries was constitutional. Allowing the relevance of empirical studies concerning differential effects of jury size, the Court concluded that existing evidence was insufficient to demonstrate that the verdicts of 6-member juries would be different from those of 12-member juries or would operate to the disadvantage of a defendant. Given the paucity of relevant data supportive of such differences, the Court decided in favor of allowing the smaller juries. The present study was designed to determine experimentally whether the 6-member jury was more or less advantageous to the defendant than a 12-member jury at each of 2 levels of apparent guilt of the defendant. Ss were 360 undergraduates. Consistent with predictions based upon logical considerations and upon small group research, jury size had no effect upon conviction when apparent guilt was low (only 2 out of 10 juries of each size reached a guilty verdict), but when apparent guilt was high, 6-member juries were substantially more likely to convict (9 out of 10) than were 12-member juries (2 out of 10; (p < .001). (22 ref) (PsycINFO Database Record (c) 2006 APA, all rights reserved)

Legal abortions in the United States since the 1973 Supreme Court decisions.

Abstract: A study on legal abortion in the U.S. during 1973 and the 1st quarter of 1974 revealed the following facts: 1) the number of abortions reported has risen every year since states began relaxing their abortion laws 2) the legal abortion plateau has not yet been reached 3) changes in the distribution of legal abortions following the Supreme Court decisions of 1973 varied according to whether a state previously had a liberal or conservative abortion policy 4) 90% of the increase in abortions between the 1st quarter of 1973 and the 1st quarter of 1974 took place in nonhospital abortion clinics and 5) public hospitals have been slowest of all medical facilities to respond to the 1973 Supreme Court decision. The methodology and data analysis of the study are discussed. Specific reference is made to variations among the different sections of the country changes in the pattern of abortion delivery the extent to which the Supreme Court decisions are being implemented and the way in which different types of health institutions are responding to the new situation relative to abortion.

Overview: the right to treatment--comments on the law and its impact.

Abstract: The constitutional right to treatment has now become an accepted premise of litigation in the United States. It lacks only the imprimatur of the Supreme Court. The author presents a brief description of the history of right to treatment cases and comments on the problems and possibilities the law holds for psychiatry. He warns that psychiatric institutions must be aware of the costs and benefits of such litigation and must obtain skilled legal counsel to advise them of their rights and obligations. He calls on psychiatry as a profession to participate in right to treatment litigation and to attempt to shape legal standards so that future generations of psychiatrists can provide appropriate care to patients.

The Relationship Between School Desegregation and Academic Achievement: A Review of The Research

Abstract: And the Supreme Court, in the Keyes case, indicated that these requirements were to extend to those school districts which had never operated "under a constitutional or statutory provision that mandated or permitted racial segregation in public education,"3 if there was evidence of purposeful segregation practiced by school officials in at least a portion of such districts Many have contended that Brown4 did not rest on social science evidence that segregation is psychologically harmful to Negro students,5 or on the belief

The Supreme Court as a Small Group.

Abstract: The application of small group interaction and decision making assessment methods has demonstrated many of the interpersonal preferences, understandings, and attitudes of the Supreme Court. Six terms of the 'upreme-Court, from October 1969 through October 1974 were chosen for evaluatiOn. Only those cases in which the formal opinion of the Court was authored by one of its members were considered. Matrices were constructed to show interagreement in differing circumstances. Type and degree of dissent, coalition formation, the effect of personnel change, and value systems as measured by the Guttman scale were investigat d during this time period. Although the study of decision making by the Supreme Cotirt is inexact, the information contained here should provide insight for those who practice before the Court. (KS)

Independent Development of Israeli Law

Abstract: It is not always easy to decide when we must turn to English law. And once it has been determined that reference to English law is appropriate, there is the further question of the substance and application of principles drawn from English law. In such case, English law forms part of the local law, and need not be ascertained as required by the rules of private international law in respect of foreign law.This makes the local law directly dependent upon English case-law, which itself is constantly being renewed and developed. Such dependence may seem to impair the independence of the Israeli legal system. The question could not, of course, be raised during the Mandatory period at a time when there existed a possibility of appeal from the Mandatory Supreme Court to the Privy Council in Westminster. But after the establishment of the State Cheshin J. said: It is unthinkable that a sovereign nation with its own laws and its own legal system would continue to be subject to the authority of a foreign nation's legal system and to changes in rulings which are likely to be introduced in her courts, only because in the past, when there was a strong tie between the two nations, the former drew from the legal system of the latter.

Gender in the Supreme Court: The 1973 and 1974 Terms

Abstract: Supreme Court discourse on gender1 and the Constitution, as the record stood at the start of 1975, bemused lower courts and law review contributors. As the Court of Appeals for the District of Columbia described the state of adjudication, precedent was "still evolving," "rapidly changing, and variously interpreted."2 A concerned and perceptive Court watcher in this area concluded: "[T]he Court is not certain what constitutes sex discrimination, how virulent this form of discrimination is or how it should be analyzed in terms of due process and equal protection."' These appraisals derived from the vacillation that followed the Court's break from a consistent affirmation of governmental authority to classify by gender unbroken until 1971. There was quick movement in a new direction in 1971-73. 1974 saw retrenchment or at least lineholding. 1975 brought the Court back to the 1971-73 track. Momentum in the new direction built up, but the

Why Academic Women Do Not Revolt: Implications for Affirmative Action.

Abstract: Low perceptions of sex discrimination among full-time women faculty interviewed at a multicampus northeastern university in a major metropolitan area are explained and compared with statistical data documenting inequities in salary, promotion, rank, and tenure. Structural reasons for the misperceptions are offered, such as concentration in lowest ranks, pluralistic ignorance, merit myths, and cooptation. Data are generalizable because similar patterns prevail at most educational institutions. The study highlights the irony of the way women perceive their status and their own documentation of the day-to-day inequities which cumulatively result in the statistical patterns now accepted by the United States Supreme Court as prima facie evidence of sex discrimination. Solving status inequalities requires strong social networks among women, according to the author. Affirmative action recommendations are outlined to close the gap between women faculty and administrators without resorting to the courts.

Developing Constitutional Rights of, in, and for Children

Abstract: The Supreme Court has in recent years decided many cases challenging state substitute-parenting activities. The increasing number of such cases on the recent Supreme Court docket is itself a striking fact, most likely reflecting the Court's perception of widespread concern about family structure in the society. Taken together, these decisions appear to vest constitutional rights in both parents and children against state interventions and increasingly to curtail state authority to intervene against parental wishes on behalf of children. But the Court has not yet formulated a coherent rationale for this stance, nor has it acknowledged that its application of constitutional norms in these cases yields some generalizations about the permissible scope of state substitute-parenting activities. This discussion will address that task. It will not consider state inter-

Goss v. Lopez: The Supreme Court as School Superintendent

Abstract: No Term of the United States Supreme Court now seems complete without a school case. The Court has now afforded judicial review to most significant aspects of educational policy: school desegregation,' school finance,2 school curriculum,3 school personnel practices,4 and, now, school discipline.5 Though some constitutional challenges to educational authority have been rejected,6 the trend has been unmistakably toward greater judicial intervention, in higher' and secondarys education alike. Indeed, if the last

Confidentiality and the Prediction of Dangerousness in Psychiatry

Abstract: THE California Supreme Court continues to make financial awards to patients in suits against physicians with seemingly little regard for the effect of these awards and decisions upon the practice o...

Waiting on the Promise of Brown

Abstract: Black Parents Equal Educational Opportunity Committee Delta County, Southland Dear Friend, We have always been concerned about good schools for our children. When the Supreme Court said, more than twenty years ago, "it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education," we felt that the Court understood our concern. We placed our faith in the Brown decision. There have been many changes for the better in the last two decades, but we are still waiting for the promise of Brown to be realized in our public schools. Several years ago, the black community in Delta County formed the Black Parents Educational Opportunity Committee. This Committee has worked to desegregate our schools in order to obtain the equal educational opportunity to which the Court said our children were entitled. In 1963 the Delta County School Board was taken to court; during the long years of litigation many favorable court rulings were obtained, but most succeeded only in stopping school board action intended to maintain segregated schools.

Court Administration and Judicial Modernization

Abstract: A symposium on judicial administration, published in this Review in the Spring of 1971, underscored the growing realization that delay in courts is primarily a problem in management.1 The acknowledgment of the importance of modern management techniques came only after several alternate solutions to the problem of court congestion were tried and found wanting. For example, it had been hoped that the pretrial conference, by reducing the number of issues to be tried, would reduce the time needed for trial. However, a comprehensive study conducted at the request of the New Jersey Supreme Court has shown that "pretrial conferences ... are not the answer to court delay."2 The conclusions with regard to separating questions of liability from questions of damage in automobile accident cases and with respect to proposals for compulsory arbitration of small claims is the same.

Standing Armies and Armed Citizens: An Historical Analysis of the Second Amendment

Abstract: There has been very little case law construing the Second Amendment, perhaps because there has been very little federal legislation on the subject of firearms. This may change, and it may become necessary for the Supreme Court to rule upon constitutional challenges to federal statutes based on the Second Amendment. Even before this occurs, it would be helpful to dispel the uncertainties that exist in Congress about the extent of federal legislative power. In order to determine accurately the intended meaning of the Second Amendment, it is necessary to delve into history. It is necessary to consider the very nature of a constitutional guarantee -- whether it is an inherent, fundamental right, derived from abstract human nature and natural law or, alternatively, a restriction on governmental power imposed after experience with abuse of power. Historically, the right to keep and bear arms has been closely intertwined with questions of political sovereignty, the right of revolution, civil and military power, military organization, crime and personal security. The Second Amendment was written neither by accident nor without purpose; it was the product of centuries of Anglo-American legal and political experience. This development will be examined in order to determine whether the "collectivist" or "individualist" construction of the Second Amendment is correct.

The Independent Judiciary in an Interest-Group Perspective

Abstract: We believe that at a deeper level the independent judiciary is not only consistent with, but essential to, the interest-group theory of government. Part I of this paper explains our theory of the independent judiciary. Part II discusses several implications of the theory, relating to administrative regulation, the form of interest-group legislation, the tenure of judges, and constitutional adjudication. The appendix to this paper presents an empirical analysis of judicial independence using data on Acts of Congress that have been held unconstitutional by the Supreme Court.