Showing papers on "Supreme court published in 1977"

State Law, Shareholder Protection, and the Theory of the Corporation

Abstract: THIS spring the Supreme Court rejected a claim that the anti-fraud provisions of the Securities Exchange Act' impose a general fiduciary duty on those who control a corporation to act fairly toward minority interests.2 This decision, rejecting attempts to expand federal authority over internal corporate affairs through interpretation and thereby limiting the federal role to preventing fraud in securities transactions, may well increase the demands for major federal regulatory legislation governing the shareholdercorporation relationship. It is almost universally the opinion of academic commentators that state corporation codes do not impose sufficiently stringent controls on corporate management and are lax in protecting shareholders. Only federal intervention, it is said, can correct this sorry situation. This article will test the intellectual underpinnings of the conventional wisdom and of the rather venerable proposals calling for the federal regulation of the governance of corporations3 against an economic theory of corporate function and control. It will conclude both that state corporate legal systems are

The judicial mind revisited: Psychometric analysis of Supreme Court ideology.

Abstract: The Judicial Process-Christopher P. Banks 2015-02-19 The Judicial Process: Law, Courts, and Judicial Politics is an all-new, concise yet comprehensive core text that introduces students to the nature and significance of the judicial process in the United States and across the globe. It is social scientific in its approach, situating the role of the courts and their impact on public policy within a strong foundation in legal theory, or political jurisprudence, as well as legal scholarship. Authors Christopher P. Banks and David M. O’Brien do not shy away from the politics of the judicial process, and offer unique insight into cutting-edge and highly relevant issues. In its distinctive boxes, “Contemporary Controversies over Courts” and “In Comparative Perspective,” the text examines topics such as the dispute pyramid, the law and morality of same-sex marriages, the “hardball politics” of judicial selection, plea bargaining trends, the right to counsel and “pay as you go” justice, judicial decisions limiting the availability of class actions, constitutional courts in Europe, the judicial role in creating major social change, and the role lawyers, juries and alternative dispute resolution techniques play in the U.S. and throughout the world. Photos, cartoons, charts, and graphs are used throughout the text to facilitate student learning and highlight key aspects of the judicial process.

Children of divorce: What they feel about access and other aspects of the divorce experience∗

Abstract: A sample of 92 children of divorce, ranging in age from 9–28 years was obtained from the records of the Cape Town Supreme Court, South Africa The children were interviewed with a view to eliciting feelings regarding parents staying together in an unhappy marriage “for the sake of the children”;, access arrangements, the extent to which they experienced the divorce as traumatic, together with other aspects of the divorce experience Viewpoints expressed by the children suggested that they perceived an ongoing unhappy marriage as more conflict‐arousing for themselves than the divorce itself It was strongly revealed that freedom of access to non‐custodial parent was highly valued by the children

The Statutory Law of Slavery and Race in the Thirteen Mainland Colonies of British America

Abstract: W x r r hen Rhode Island legislators began the gradual statutory abolition of slavery in their state in I784, they declared in a preamble that slavery "has gradually obtained [in Rhode Island] by unrestrained custom and the permission of the laws."1 This pithily restated the accepted explanation of the legal origins of slavery in the American states. To create slavery by law it was not necessary, as United States Supreme Court Justice John McLean later observed, to pass legislation providing "that slavery shall exist"; and no such statute was ever adopted in any American jurisdiction.2 Rather, as an anonymous Garrisonian abolitionist maintained in a retrospective survey of the statutory law of slavery in the British American mainland colonies, the legal origins of slavery are found in "the provincial legislative acts, which establish and sanction the custom [of slaveholding] and stamp it with the character of law."3 "Provincial legislative acts" did in fact validate and regulate many customary elements of the legal relationship between white and black people in the colonial period. Historians, judges, lawyers, and others have recurred to them for nearly two centuries, sometimes to prove the legitimacy of slavery, sometimes to mine materials for proslavery or antislavery propaganda, sometimes to illustrate details of colonial life, but seldom for the purpose of examining the ways in which law affected colonial society as a

Tarasoff: protective privilege versus public peril.

Abstract: The author reviews the decision made by the California Supreme Court in the case of Tarasoff v. the Regents of the University of California, et al., which stipulated that therapists must warn authorities specified by law as well as potential victims of possible dangerous actions of their patients. He states the basic points of the Northern California Psychiatric Society's amicus curiae brief on behalf of the university regents and discusses the issues raised by the Tarasoff decision vis--53a-vis the mental health profession and its dealings with potentially violent individuals. Language: en

Bilingual Education: The Legal Mandate

Abstract: The Lau v. Nichols decision of the Supreme Court, which upheld the right of non-English-speaking students to educational programs designed to meet their language- skill needs, has suddenly created a presumption in favor of bilingual education that is causing nationwide repercussions. In this article attorneys Herbert Teitelbaum and Richard Hiller review Lau and subsequent cases and point out that the bringing and winning of such cases will not overcome all the obstacles to equitable education. One hurdle may be the sluggish federal enforcement of remedies to Lau violations; another may be school districts' resistance, explained on the grounds of increased costs, contract rights of teachers, the small number of students involved, or the need to avoid segregation. Although such defenses are rarely successful in court, Teitelbaum and Hiller acknowledge that fears of segregation may impede the implementation of bilingual programs. Accordingly, they present options for remedying discrimination against linguist...

Martial Law in the Philippines: The Methods of Regime Survival

Abstract: The Philippines was the latest of the colonially inspired experiments in constitutional democracy within Southeast Asia to succumb to a palace coup. Because the Filipino citizenry had a longer experience in the uses of competitive elections, a free press and an independent judiciary than did the other peoples of the region, the demise of such institutions holds a special fascination for the scholar and is regarded as a special tragedy by all those who love freedom. Martial law was declared by President Marcos on September 2I, I972, more than halfway through his second, and constitutionally final, four-year term. He has clung to power beyond that term by utilizing for purposes of gaining legitimacy the transitory provisions of the I973 Constitution. That document was drafted in the Presidential palace, adopted by the Constitutional Convention under duress, and "ratified" by voice vote in village assemblies where armed soldiers and policemen were in prominent attendance. Though a majority of the Supreme Court regarded this ratification as invalid, there was not a majority to declare the new "Constitution not in force."' Some writers, including Marcos and his apologists, have described what happened in the early i970's as the "failure of Philippine democracy." But that is a distortion of the realities of that period. Filipino democratic institutions did not break down, either in the sense of an inability to maintain order or a failure to respond to changes within the society. The rising political violence after i969 was to a considerable degree the creation of Marcos himself, first in trying to get himself re-elected and then in preparing ajustification for martial law.

Hospital ethics committees: is there a role?

Abstract: Olin March 31, 1976, the New Jersey Supreme Court announced its decision in the case of Karen Quinlan. In addition to the personal impact of that decision on those involved in the case, the court's opinion had a significant impact on the broader public. The proposal to establish what Chief Justice Richard J. Hughes called a hospital "Ethics Committee" gave a major impetus to a new trend. Before the decision, there had been a few attempts to establish committees at the local hospital level to make, review, or advise in decisions regarding the care of the terminally ill, and since then the idea has been given substantial attention. It is, therefore, an appropriate moment to ask a number of questions. What are the theoretical and practical problems in the establishment of such a committee? What are the different functions and

The Supreme Court's abortion decisions and public opinion in the United States.

Abstract: Between January 1973 and July 1976, the United States Supreme Court handed down three major decisions concerning abortion-two in 1973 and one in 1976. The 1973 decrees struck down most state laws restricting pregnancy termination and ruled that, until after the first trimester, the decision to have an abortion rests with the wvoman and her physician. The Court said that between the beginning of the fourth month of pregnancy and fetal viability (approximately six moinths gestatioi) state regulation should be concerned with measures designed to preserve the mother's health but should not be needlessly restrictive. After viability, the state was held justified in regulating and even proscribing abortion, except where necessary for the preservation of the life or health of the mother. The Court nullified state statutes limiting the perfolrmance of abortions to hospitals; invalidated abortion review committees; and abrogated restrictions on migration between states for purposes of abortion. In 1976 the Court specifically refused to legitimate action by interested parties-such as the woman's husband or parents-to veto her free access to abortion. Implementation of these judicial rulings is turning out to be an arduous process, analogous in many ways to implementation of the earlier decisions of the US Supreme Court on school desegregation. The abortion decisionis are beginning to exemplify the increasingly familiar problems inivolved in the use of judicial review as a means of effecting social change; mobilization of extreme opposition and steady erosion of the Court's intent by means of collateral deterrence.'

Support Orders, Church Courts, and the Rule of Filius Nullius: A Reassessment of the Common Law

Abstract: IN 1973 the United States Supreme Court held that a state violated the equal protection clause by denying illegitimate children a right to parental support granted to legitimate children.' Commentators have regarded that decision as a worthy departure from the common law rule that denied illegitimate children any right to support from their father. But, as those commentators have noted, the decision simply forbade discrimination between legitimate and illegitimate children.2 It stopped short of granting an absolute right to support. It did not challenge the widespread American rule, based on English common law, that in the absence of statute an illegitimate child has no inherent right to parental support. This article suggests that the approach of the American courts rests on a misreading of the historical evidence. Admittedly, the treatment of illegitimates at English common law is well established. "The common law of England," concludes a leading contemporary authority, "was ruthless in its denial of any rights to children born out of wedlock." 3 He merely repeats what every case, every treatise,5 and every law review articles states. The

Children's Images of the Supreme Court: A Preliminary Mapping

Abstract: Social scientists have offered numerous explanations for the support the public accords to the United States Supreme Court. Easton and Dennis have advanced the contention that such support is at least in part the product of youthful idealization of the Court, and this hypothesis has gained widespread, if tacit, acceptance. This paper argues that their conclusion is largely the consequence of a methodological artifact (the use of fixed-response survey instruments), and offers evidence that most children are not only unaware of the Supreme Court and its functions but demonstrate little or no positive affect toward that institution. If this is so, then why has the Easton-Dennis explanation persisted, despite its implausibility and lack of empirical grounding? One possibility is that the notion of a reservoir of trust in the Supreme Court is a useful rhetorical weapon for both judicial activists and those who advocate judicial restraint. But if public perceptions and evaluations of the Court are not strongly held, we must face the danger that those views will be susceptible to manipulation by people who do know and care about it-political, social, and economic elites.

Toward an Integration of Public Law and Judicial Behavior

Abstract: THE VIEW OF JUDGES as political actors whose attitudes toward subtantive policy issues often influence their decisions is the cornerstone of judicial behavioralism. The assumption is that there is ". . . a kind of stare deciks underlying the Supreme Court's decisions but that it is based on personal rather than institutional precedents."' Voting records of individual justices are examined to uncover regularities in behavior and to provide the basis for inferring the attitudes of judges toward the substantive issues raised. Of course, if each justice were merely following his conscience on a case by case basis, a random, rather that a persistent, coalitional pattern of voting would emerge. Evidence derived both from observations of voting patterns and from interviews with judges seems

Toward benevolent neutrality: Church, state, and the Supreme Court

Abstract: Virtually every significant Supreme Court decision concerning religious freedom and separation of church and state is presented here.

Brief for Appellants

Abstract: BRIEF FOR APPELLANTS In the Supreme Court of the United States October Term, 1976. No. 7511 NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, Appellant, THE TRANSITIONAL DESEGREGATION PLAN OF TUCKAHOE, ET AL. Appellee. On Writ of Certiorari to the United States Court of Appeals for the Thirteenth Circuit. BRIEF FOR APPELLANTS. Linda D. Ashford Joyce Y. Hartsfield, College of Law, Syracuse University, Syracuse, N. Y., Counsel for Appellants. Table of Contents AUTHORITIES CITED In the Supreme Court of the United States October Term 1976.

An Appraisal of the Costs and Benefits of Government-Required Disclosure: SEC and FTC Requirements

Abstract: Supreme Court Justice Brandeis' metaphoric argument "Sunlight is said to be the best of disinfectants; electric light the most efficient policeman" is regarded by many as a truism.1 The Securities Act of 1933 (characterized as a disclosure statute) and the Securities Exchange Act of 1934 are based on this assumption.2 President Roosevelt opted for disclosure rather than attempt to establish as federal statute the merit regulation of securities sales that had been enacted in the blue sky laws adopted in about half the states. As he put it in his message to Congress supporting the 1933 Act:3

Privacy in the Courts: Law and Social Reality

Abstract: A rational system of justice requires consistent scientific input. As part of a project to understand how social science knowledge can be incorporated into the legal process, decisions of the United States Supreme Court were examined in cases whose determinations rested on assumptions about the psychological dimensions of privacy. It was found that the Court and lawyers failed to appropriately define privacy and utilize social science theory and data. Suggestions to remedy the gap between law and social science are discussed.

The risk of birth defects: Jacobs v. Theimer and parents' right to know

Abstract: This Article discusses the Texas Supreme Court's holding in Jacobs v. Theimer that the parents of a defective child had a cause of action for damages against a physician for alleged negligent failure to inform the mother during pregnancy that she had contracted rubella and therefore might have a defective child, thereby causing her to lose the opportunity to have an abortion. The Article raises a number of questions that post-Jacobs courts probably will confront concerning the duty of physicians and genetic counselors to keep their clients informed; describes some social and medical developments--including recent progress in medical genetics and prenatal diagnosis--which are likely to make Jacobs a significant precedent; evaluates the court's decision to allow a damage suit only for the costs of treating and caring for the child's defects; and briefly addresses the question of whether the Jacobs case comes within the sphere of suits for what has come to be known as "wrongful birth" and "wrongful life."

Computer Power and Legal Reasoning: A Case Study of Judicial Decision Prediction in Zoning Amendment Cases

Abstract: While social scientists have long advocated the use of statistical methodology in legal analysis, its practical application has not been tested. Statistical models based on social science theories have been used to predict judicial decisions and explain court behavior, but the legal profession has failed to develop statistical models based on traditional legal theories and using data familiar to the lawyer. This article seeks to demonstrate by practical application of statistical methodologies, coupled with traditional legal research methods, that such research can produce important insight into a court's decision making and provide a useful model for predicting the probability of a favorable decision. The zoning amendment decisions of the Connecticut Supreme Court are the data base of this study, which also provides a comprehensive explanation of zoning amendment law in Connecticut as a backdrop against which to evaluate the insights gained by statistical analysis.

Rights of Children.

Abstract: Children are the newest claimants to constitutional freedoms. Their rights are being asserted with increasing frequency in expanding contexts. And the courts are listening. Since 1943 when the Supreme Court ruled that school children had an interest in "intellect and spirit" which protected them against having to salute the flag in violation of their religious beliefs,' constitutional rights of minors have been steadily enlarged. It is now acknowledged that children have protected interests in freedom of expression (Tinker, 1969), privacy (Planned Parenthood, 1976; Bellotti, 1976), procedural due process in criminal (McKiver, 1971; In re Winship, 1970; In re Gault, 1967) and non-criminal (Goss, 1975) settings, and freedom from double jeopardy (Breed, 1975). Most of the disputes involving children have been between children and the government-whether, for example, school officials may prohibit students from wearing arm bands to class to protest American involvement in the Vietnam War (Tinker, 1969), or whether children must be given the same protection as adults when they are charged with violations of the law (In re Gault, 1967). The decisions which expanded juvenile rights were thus unencumbered by conflicting parental rights to control of children. In that sense, and in retrospect, the decisions were relatively easy ones to make, involving simply the application of familiar constitutional freedoms, well developed in application to adults, to children in analogous contexts. Defining children's constitutional freedoms is vastly more difficult where parental rights (or interests) are also asserted. It is simply not clear in such cases where traditional libertarian allegiances should lie, for emerging children's rights have entered a crowded area of the stage, colliding with other carefully nurtured rights and interests: particularly those of parents as the preferred managers of their children's development, and familial interests in autonomy and privacy.2 The constitutional rights of parents were acknowledged long before those of children, and the Supreme Court cases defining them are now classic (Meyer, 1923; Pierce, 1923; Prince, 1944; Stanley, 1972; Wisconsin, 1972). The Court has spoken of the rights of parents in language usually reserved for rights viewed as basic or fundamental-rights *Walter H. Bennett, Jr., is a member of the North Carolina Bar and practices law in Charlotte, North Carolina, with the firm of Casey, Daly & Bennett, P. A. Laughlin McDonald is a member of the South Carolina Bar and the Georgia Bar and is Director, Southern Regional Office, American Civil Liberties Union Foundation, Inc., 52 Fairlie Street, N.W., Suite 355, Atlanta, Georgia 30303.

Plessy v. ferguson: a reinterpretation

Abstract: There have been three momentous Supreme Court decisions in the history of Afro-Americans: Dred Scott v. Sanford, Plessy v. Ferguson and Brown v. The Board of Education. In contrast to Dred Scott, Plessy was decided after the adoption of the Fourteenth Amendment which prohibited discriminatory state action in regard to equal protection of the laws and due process of law and after the coming of Social Darwinism which included a body of sociological theories utilized to supplement American conservatism. Considering the historical background of the times, Robert Harris regarded Plessy as "a compound of bad logic, bad history, bad sociology, and bad constitutional law." I Despite the historical significance of Plessy, its historiography is sparing, cursory, tangential and misleading. Among the outstanding monograph essays on the topic are: C. Vann Woodward's cursory historical account of the case in his article "The Birth of Jim Crow: Plessy v. Ferguson;" the brief and over-simplified account of the "separate but equal" origin in Leonard Levy and Harlan Phillips' article "The Roberts Case;" and two articles by Barton Bernstein in the Journal of Negro History interpreting the Plessy decision as sociological jurisprudence, and his 1962 case study analysis criticizing the Louisiana Supreme Court for misleading the United States Supreme Court in regard to state statutes and legal issues.2 Significant related essays on Plessy may be found in Otto H. Olsen's documentary compilation The Thin Disguise, and a similar documentary edition by Albert P. Blaustein and Clarence Clyde Ferguson, Jr. entitled Desegregation and the Law. There are several essays, articles and books explaining the historical problems and different interpretations of Jim Crow history. Of major importance are: John Hope Franklin, "History of Racial Segregation in the United States;" August Meier and Elliott Rudwick, "A Strange Chapter in the Career of Jim Crow"-a study on Black opposition to street car segregation in Savannah, Georgia; Joel Williamson (ed.), The Origins of Segregation, which is a collection of controversial essays on the topic; a series of articles by Alexander M. Bickel, John P. Frank and Robert F. Munro and Alfred Kelly indicating that the Fourteenth Amendment did not require the Supreme Court to embrace the "separate but equal" principle, and Alan Westin's valuable analysis of Justice John Marshall Harlan in his "John Marshall Harlan and the Constitutional Rights of Negroes: The Transformation of a Southerner."3 The most popular reference in regard to recent segregation is C. Vann Woodward's Strange Career of Jim Crow; but the most thorough study of underlying economic factors, politics, philosophy and

The Supreme Court and the Constitution: Readings in American Constitutional History

Abstract: The new Third Edition covers cases down to the present, including important decisions on racial discrimination, privacy, the rights of women, the "new equal protection" and the welfare state, and executive power. The cases, selected for their long-standing significance for constitutional law, are arranged in chronological fashion and further subdivided into pertinent topical categories. Headnotes for each case are designed to familiarize the reader with the historical and constitutional context, the factual background, and the relationship of the case to prior and subsequent ones. While the cases are, of course, edited, generous extracts are provided so that the reader may more fully understand the legal, political, social, and economical considerations employed in a judicial decision. Where appropriate, portions of dissenting opinions are included. Emphasis is on cases which best depict the Supreme Court's role in the making of public policy, particularly those Supreme Court decisions that have served as an instrument for reform and change.

Regulatory Agency Responses to the Development of Public Participation

Abstract: (Indianapolis: Bobbs Merrill, 1971), pp. 101-154; James Q. Wilson, "The Politics of Regulation," in James W. McKie (ed.), Social Responsibility and the Business Predicament (Washington, D.C.: The Brookings Institution, 1974), pp. 144-145. 4. Office of United Church of Christ v. FCC (359 F2d 994, 1003 (1966)). 5. A recent decision of the Supreme Court, Eastern Kentucky Welfare Rights Organization v. Simon, 96 Sup. Ct. 1917 (1976), threatens to resuscitate the standing defense, even in suits against federal agencies, but the meaning of this decision remains unclear. Because standing is in part a doctrine of constitutional interpretation (the requirement in Article III that the federal courts may entertain only actual "case or controversies"), a legislative solution to this problem may be impossible. 6. Subcommittee on Administrative Practice and Procedure, Committee on the Judiciary, U. S. Senate, 94th Congress, 2d Session, Hearings, Public Participation in Federal Agency Proceedings, S. 2715, p. 119.