Showing papers on "Supreme court published in 1978"

American constitutional law

Abstract: This textbook focuses on the Constitution's provisions for government structure and on how constitutional structure helps guarantee protection of substantive rights and liberties. It promises to be an indispensable resource for teachers, students, practicing lawyers and judges. This preeminent treatise provides a wealth of original, insightful, and influential analysis of constitutional law doctrine and policy.Professor Tribe's central concern is the Constitution itself, not the Supreme Court as an institution. While addressing relevant issues of institutional capacities and roles, he does not stop at discussing the Court as the right or wrong forum to review a particular issue and render judgment; the more crucial question is whether the judgment itself was right or wrong as an element in the living development of constitutional justice.

Ethics for Bureaucrats: An Essay on Law and Values, Second Edition

Abstract: This important text integrates the study of ethics into public management training, highlighting Supreme Court opinions on three specific constitutional values-equality, freedom, and property-focusing on the pedagogical aspects of law and posing challenging questions to help readers apply theories to concrete situations. It includes a case index for further research. Topics of specific interest include abortion, affirmative action, bureaucratic bashing, civil disobedience, the Ethics in Government Act of 1978, the Iran-Contra scandal, moral absolutism, privileged communications, religious fundamentalism, and whistle blowing. The Midwest Review of Pubic Administration lauds it as "…a unique teaching tool."

The Dred Scott Case: Its Significance in American Law and Politics

Abstract: Winner of the Pulitzer Prize in 1979, this masterful examination of the most famous example of judicial failure-the case referred to as "the most frequently overturned decision in history." On March 6, 1857, Chief Justice Roger B. Taney delivered the Supreme Court's decision against Dred Scott, a slave who maintained he had been emancipated as a result of having lived with his master in the free state of Illinois and in federal territory where slavery was forbidden by the Missouri Compromise. The decision did much more than resolve the fate of an elderly black man and his family; Dred Scott v. Sanford was the first instance in which the Supreme Court invalidated a major piece of federal legislation. The decision declared that Congress had no power to prohibit slavery in the federal territories, thereby striking a severe blow at the the legitimacy of the emerging Republican party and intensifying the sectional conflict over slavery. This book represents a skillful review of the issues before America on the eve of the Civil War. The first third of the book deals directly with the with the case itself and the Court's decision, while the remainder puts the legal and judicial question of slavery into the broadest possible American context. Fehrenbacher discusses the legal bases of slavery, the debate over the Constitution, and the dispute over slavery and continental expansion. He also considers the immediate and long-range consequences of the decision.

Human Rights and the South African Legal Order

Abstract: As an Advocate of the Supreme Court, John Dugard observes the South African legal order daily in operation. In this book he provides a thorough description and probing analysis of the workings of the system. He places South Africa's legal order in a comparative context, examining the climate of legal opinion, crucial judicial decisions, and their significance in relation to contemporary thought and practice in England, America, and elsewhere. He also considers South Africa's laws in the light of its history, politics, and culture. Originally published in 1978. The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Government by judiciary : the transformation of the fourteenth amendment

Abstract: It is Berger's theory that the United States Supreme Court has embarked on "a continuing revision of the Constitution, under the guise of interpretation", thereby subverting America's democratic institutions and wreaking havoc upon Americans' social and political lives.

The Effects of the Brown Decision on Black Educators.

Abstract: Since the Supreme Court's ruling in Brown v. Board of Education of Topeka, Kansas in 1954,1 Blacks throughout the nation have watched the efforts to enforce the Court's mandate with mixed emotions. In the euphoria of the decision many believed that the long battle against segregation in the American public educational system, a practice that had cheated their children out of anything resembling a quality education, was at an end. They felt that the ruling handed down was the legal and moral thing for the Court to do. A small minority, aware of the commitments of some whites to racial segregation in the schools and other areas of American society, doubted whether the Court's ruling would be enforced and prophesized a long and bitter battle before the public schools were desegregated. As a group, very few of them gave thought to the effects the Court's decision would have on the black educators who taught the more than two million black students enrolled in segregated schools. Because of opposition to the enforcement of the decision, it was not until more than twenty years after the 1954 ruling that enough information was available to assess adequately its impact and consequences on black educators. Opposition to the enforcement of the Brown decision, especially in the South where most black students were enrolled in segregated schools, had been predicted by some Blacks as early as 1954; but very few at the time thought in terms of the implications of the decision on black educators. One of the more accurate analyses of the decision's implication on black educators, as well as black education, came from Charles S. Johnson, president of Fisk University in Nashville, Tennessee. In an essay written for the Journal of Negro Education, Summer, 1954,2 Johnson noted several ad-

Selecting Cases for Supreme Court Review: An Underdog Model*

Abstract: In making review decisions, Supreme Court justices are predisposed to support underdogs and upperdogs. disproportionately but, also, are motivated to hide any "bias" that may be at work in determining votes.In balancing these two values, justices may be expected to vote their "bias" more frequently (1) when that vote will determine outcome, and (2) when the "bias" will be harder to detect. The latter goal may be served by voting the "bias" more frequently in close cases and less frequently otherwise.In an analysis of the voting patterns of five justices in the decade 1947–56, I found that two liberal and two conservative justices conformed to these expectations. A fifth, or control justice, defined as neither liberal nor conservative, did not pattern his votes in the manner predicted for liberals and conservatives. This relationship held when four projected intervening variables were controlled individually and collectively.

Optimal Fiscal Reform of Metropolitan Schools: Some Simulation Results

Abstract: In 1971 the California Supreme Court opened the door to a major reform movement to restructure the present system of decentralized school finance. With the exception of Hawaii, elementary and secondary education in the United States is supported primarily by local property taxation supplemented in part by state funded grants-in-aid. The California Supreme Court, in the now famous Serrano rulings, declared the California system in violation of the state constitution's equal protection clause. Similar rulings have also been handed down by the New Jersey Supreme Court (Robinson vs. Cahill) and the Superior Court of Hartford, Connecticut (Horton vs. Meskill). In addition, ten states have recently enacted major reform bills, and legislation is under consideration in several others. The pressure for reform is strong and continuing. As a review of the recent reform proposals indicates, the legislative search for new means of financing local schools is not simply an incremental tinkering with existing laws.' Major changes, often court required, are at issue. Long-run outcomes are uncertain; each proposal has new winners and new losers. When planning a major reform of local school finance, therefore, past experience from incremental policymaking may not be an adequate guide to choice. Long-run general equilibrium predictive models and a clearly specified evaluation rule will be needed. It is the purpose of this paper to develop such a policy framework and to apply the analysis to one region currently in the midst of school reform, the New York metropolitan area. Six alternative reform proposals are considered: foundation aid, two district power equalization plans, property tax credits, expanded Title I assistance under the Elementary and Secondary Education Act, and centralized financing and spending controls. Preferred reforms are selected under utilitarian (promiddle class), Rawlsian (pro-poor), and equal school spending (Serrano) criteria.

Political Correlates of the Behavior of Federal District Judges: A "Best Case" Analysis

Abstract: P OLITICAL SCIENIISTS have long maintained that judges at all levels are political actors and should be viewed as such. However, the vast bulk of research carried out by political scientists has focused upon "policy-oriented" courts, particularly supreme courts, and most particularly the United States Supreme Court. The distinctly "political" analyses of trial courts have been few and far between,'

Implementation of Desegregation as a Discriminatory Process.

Abstract: The purpose of this paper is to look at the impact of school desegregation on Black children in an effort to arrive at implications for the future of this major social change on the quality of educational opportunities for all children. Ironically, the desegregation of schools has had deleterious results for Black children in a number of ways, among which are: (1) disproportionate number of suspensions, expulsions, and pushouts due to disciplinary policies and procedures, (2) disproportionate number of Blacks relegated to special education classes and low tracks, and (3) dismissal and demotion of Black educators. These results will be discussed in detail further in the paper. It is well over two decades since the Supreme Court decision of 1954,1 and still this "democratic" nation is floundering as to how best to implement this national policy in the schools so that Black and white children can learn together. Realistically, desegregation decision-policy implementers made some wrong decisions and implemented them according to the desires of white militants. Part of the problem has to do with the footnote to that 1954 decision based on social science literature which pointed towards the detrimental effects on the Black child accruing from attendance in a segregated school. Based on these studies, the Court noted: Segregation of white and black children in public schools has a detrimental effect upon the black children. The impact is greater when it has the sanction of law; for the policy of separating the races is usually interpreted as denoting the inferiority of the Negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to retard educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.... We come then to the question presented: Does segregation of children in public schools solely on the

A Definite Maybe: Proof and Probability in Civil Commitment

Abstract: With the United States Supreme Court's decision to hear Addington v. Texas,' the issue of the required standard ofproof in civil commitment cases has finally come to the fore. Addington was involuntarily committed for an indefinite period under a "preponderance of the evidence" standard. His commitment was upheld by the Texas Supreme Court. Now, Addington is arguing on appeal that his committability must be supported by evidence "beyond a reasonable doubt." In its present posture, Addington is not concerned with the proper substantive standard for commitment. Instead, appellant assumes2 the constitutionality of the Texas test, which authorizes the indefinite commitment of a mentally ill person found to require hospitalization "for his own welfare and protection or the protection of others."3 When a commitment statute speaks, as does the Texas one, of the "protection of others," it requires mental health and judicial decision-makers to assess an individual's potential for future dangerousness. That public protection rationale is part and parcel of modern commitment statutes. This essay will briefly explore the criterion of dangerousness and will begin to probe the relationship between standards of proof and the dangerousness standard of commitment. According to Alan Stone, President-elect of the American Psychiatric Association, "the predictive success appropriate to a legal decision can be described in three levels of increasing certainty: preponderance of the evidence, 51 percent successful; clear and convincing proof, 75 percent successful; beyond a reasonable doubt, at least 90 percent successful" (1975, p. 33). Based on his review of the research literature,

The Advertising of Fees and Services: A Study of Contrasts between, and Similarities among, Professional Groups

Abstract: The issue of advertising among professional groups is currently drawing a great deal of attention, with several Supreme Court rulings gradually serving to loosen the controls traditionally placed on this activity. The present study focuses on the attitudes held by accountants, attorneys, dentists, and physicians regarding advertising. The data in this research study lead to the conclusion that there is a significant difference in the attitudes of these four professional groups with regard to the various issues surrounding the advertising of their fees and services. In general, the data seem to reflect a negative perception on the part of all four groups of respondents with regard to the issue of advertising. However, accountants and attorneys are more positive toward the potential role that advertising can play in their professions.

The Supreme Court under Marshall and Taney

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Ethics at the edges of life: Medical and legal intersections

Abstract: In this book, Ramsey addresses the moral problems of medicine, life and death and not merely to those who share his faith. Ramsey sets out with both clarity and and in detail the moral suppositions and implications of recent judgments by the courts, and especially by the Supreme Court, on abortion. A product of a lifetime of deep concern and keen thinking about the ethical, medical and legal-policy aspects of the "edges of life."

Vermont Yankee: The APA, the D.C. Circuit, and the Supreme Court

Abstract: Vermont Yankee Nuclear Powver Corp. v. Natural Resources Defense Council' produced what, in an era of judicial activism, is a remarkably self-denying opinion, abjuring judicial responsibility for the development of federal administrative procedure except in the relatively narrow area where requirements are imposed by the Due Process Clause. Whether the abjuration is real rather than apparent, and whether realistically it can be followed, are issues of major importance in administrative law. From a broader perspective, the case brings into question the ability of the Supreme Court to establish coherent principles of law in an area which has been largely the province of the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit). More precisely, it brings into question the willingness of the D.C. Circuit to be guided by the Supreme Court. Finally, the case suggests both the need for a major revision of the Administrative Procedure Act and the impossibility of any successful revision so long as current assumptions about the purposes of such legislation are retained. That is to say, it suggests

The Plea Bargain in Theory: A Behavioral Model of the Negotiated Guilty Plea*

Abstract: The negotiated guilty plea pervades our system of justice. Pleas of guilty entered by defendants prior to trial in exchange foi assurances of leniency in sentencing account, by our best estimates, for well over ninety percent of all criminal convictions in the United States.1 But while serious and difficult questions of ethical propriety surround the practice of plea bargaining and make its ubiquitous existence a source of continuing uneasiness in the law, perhaps no other aspect of the criminal process is so hidden and so little understood. Moreover, the need for systematic study of the nature and determinants of the plea bargaining process and the problems of constitutional values which it raises are not unrelated. The constitutionality of negotiated pleas turns largely on the question of whether the pressures of the bargaining situation are such that innocent defendants might be persuaded to accept a proffered plea bargain and subject themselves to punishment for crimes which they did not commit. Indeed, the United States Supreme Court, in approving the practice of plea bargaining, framed the issue in just this way: We would have serious doubts about this case if the encouragement of guilty pleas by offers of leniency substantially increased the likelihood that defendants, advised by competent counsel, would falsely condemn themselves.2

A Restatement of Corporate Freezeouts

Abstract: Apparently overruling earlier decisions, the Supreme Court of Delaware has recently declared that a merger effected "for the sole purpose of freezing out minority stockholders . . . is an abuse of the corporate process . . . [and a] violation of a fiduciary duty for which the Court may grant ... relief."' In Singer v. Magnavox Co.,2 a parent corporation had merged with its eighty-four-percent-owned subsidiary. Minority stockholders of the subsidiary had received only cash for their shares and thus had been eliminated from participation in the combined enterprise. The court confirmed that the parent owed a fiduciary duty to the minority by reason of its status as majority stockholder, but then-in what is generally viewed as a new development in Delaware law-the court held that this duty would not be met unless a corporate purpose for the merger, other than mere elimination of the minorityheld stock, were supported by the evidence. In Tanzer v. International General Industries, Inc.,3 decided a few weeks after Singer, the court resolved the question of whose corporate purpose was relevant in parent-subsidiary mergers by holding that a merger that conveyed an economic benefit to the parent corporation sufficed to meet the standard of fiduciary conduct erected in Singer, provided that the transaction was otherwise "entirely fair" to the minority stockholders of the subsidiary. In effect, the displacement of a subsidiary's public stockholders was held to be lawful under the Delaware statute if, but only if, a commercial benefit could be demon-

The Chief Justices and Self-Assignment of Majority Opinions: a Research Note

Abstract: T HE IMPORTANCE of the phenomenon of judicial opinion assignment has often been alluded to by jurists and public law scholars, yet opinion assignment decisions have only rarely been subjected to empirical investigation.' Nevertheless, it is in the majority opinions of the Supreme Court where controlling constitutional principles are established and broader policy directives beyond the immediate case are often fashioned. The answer to the question of, "Who speaks for the Court?" has myriad implications beyond the most obvious issue of what is the status of a lower court decision. "Should the Court's opinion be placed on one ground rather than another, or upon two grounds instead of one? Should the opinion deal narrowly with the issues, disposing of the case and doing no more? Or should it survey the issues with depth and breadth implanting seed from which new constitutional and legal doctrine can grow?"2 In assigning majority opinions in all cases in which he votes with the majority, the Chief Justice is in a unique position to affect the content of the opinions that emerge by choosing the Court's spokesman. Beyond the Chiefs ability to structure the opportunities of his colleagues, however, his potential for self-assignment of "desirable" cases augments his power even further. The exercise of this potential power for self-assignment is, in fact, encouraged by the Chiefs colleagues because of the symbolic nature of the Chieftainship. Thus, as Justice John H. Clarke put it a few years after his retirement, "The great cases are written, as they should be, by the Chief Justice."3 Similarly, Felix Frankfurter asserted more recently that the Chief Justice must recognize '... the importance of the Chief Justiceship as a symbol. For there are occasions when an opinion should carry the extra weight which pronouncement by the Chief Justice gives."4 The Chief Justice's opinion assignment prerogative and the potential for selfassignment of desirable cases fit squarely in the theoretical framework of a "policy oriented Justice" as described by Walter Murphy. "By this term I mean a Justice who is aware of the impact which judicial decisions can have on public policy, realizes the leeway for discretion which his office permits, and is willing to take advantage of this power and leeway to further particular policy aims."5 Clearly, an

The Impact of Judicial Activism on Public Opinion

Abstract: This research note explores the impact of judicial activism on public opinion by examining citizen evaluations of a state court system deeply involved in a highly political controversy. Data are derived from four surveys of New Jersey citizens conducted at different stages of the controversy. The note first appraises the prominence of the state supreme court and gauges the degree of public approval, and then it identifies and analyzes the correlates of the affective attitudes. The study is guided by familiar hypotheses from the empirical analysis of public support for the United States Supreme Court.

Media agendas and human rights: the Supreme Court decision on abortion.

Abstract: b Most studies of media agenda-setting focus on political events of obvious visibility and interest: campaigns and elections. Efforts are made to catalogue agenda emphases or items selected by the media for public display, and public opinion materials are explored to determine how well media agendas interact with or “fit” public perceptions of salient political issues.’ This research is important, but recent reviews of the literature on political communications suggest a broadening of our topical base, asking scholars to examine all “formal and informal techniques and processes by which officials exert influence on the news media-legislation, licensing, regulation, judicial rulings, the issuing or withholding of information, or officials’ threats and pressures.”2 In addition to advice on “tilting a t new intellectual windmills,”3 researchers are asked to consider a focus on “critical events,” an analysis which “seeks to identify those events which will produce the most useful explanations and piediction of social change.”4 This study is a n initial effort to address new topical concerns, focusing on a little researched aspect of government and media agenda-setting, a high court

Slavery and Abolition Before the United States Supreme Court, 1820–1860

Abstract: INVIDIOUS contemporary opinions of Chief Justice Roger B. Taney have mischievously obstructed our efforts to understand the policymaking role of the antebellum United States Supreme Court. The judgment of the "five slaveholders who compose a majority of the Court," snorted Horace Greeley after the decision in Dred Scott v. Sandford, "is entitled to just so much moral weight as would be the judgment of a majority of those congregated in any Washington barroom."1 "The name of Taney is to be hooted down the page of history," hooted Charles Sumner in an often-quoted anti-eulogy. "He administered justice at last wickedly, and degraded the judiciary of the country, and degraded the age."'2 Greeley, Sumner, and others thereby fixed a proslavery image on the late antebellum Court, based almost entirely on the Dred Scott case, that endured for half a century. But in a landmark 1911 essay, Edward S. Corwin defended Taney's Dred Scott opinion as grounded in precedent.3 Charles Warren attacked Taney's Republican critics in his magisterial 1923 history of the Supreme Court.4 Charles Evans Hughes, Chief Justice of the United States, lent the prestige of his office to the rehabilitation of Taney's reputation in a widely noted 1931 dedicatory address.5 Finally, in 1937, Felix Frankfurter interred the "five slaveholders and two or three doughfaces" image. He refuted the view of Taney as "the leader of a band of militant 'agrarian,' 'localist,' 'pro-slavery' judges," and scorned the "dramatic conflict between Darkness and Light: [John]

Constitutional Language: An Interpretation of Judicial Decision

Abstract: This book examines theories of language for their contribution to understanding the interpretation of constitutional law by the Supreme Court.

A fertility reaction to a historical event: southern white birthrates and the 1954 desegregation ruling

Abstract: On 17 May 1954 the Supreme Court, in its decision in Brown v. Board of Education, declared de jure segregation of the public schools to be unconstitutional. It is argued here that a consequence of that decision was a decline in childbearing among white Southerners. In the nation as a whole, period fertility rates increased between 1954 and 1955, but in 9 of the 11 former Confederate states they decreased. Further analysis shows that these Southern fertility decreases began about 12 months after the Supreme Court decision. This variation in behavior in reaction to a historical event has important implications for the explanation and prediction of fertility.

School Desegregation: Legal Realism, Reasoned Elaboration, and Social Science Research in the Supreme Court

Abstract: A few years ago Professor Harvie Wilkinson wrote that Brown v. Board of Education3 evoked a "certain nostalgia" for him, for Brown was "one of those last, great actions whose moral logic seemed so uncomplex and irrefutable, and whose opposition seemed so thoroughly extreme, rooted as it was in notions of racial hegemony and the constitutional premises of John C. Calhoun."4 This is a nostalgia that I share. Brown was premised on the notion that state statutes and constitutions that require the separation of white and black children in the public schools are designed to and have the effect of stigmatizing black Americans as inferior beings. In the words of Charles Black, "the social meaning of segregation is the putting of the Negro in a position of walled-off inferiority . . . [and] such treatment is hurtful to human beings."5 Whatever the original understanding of the fourteenth amendment,6

Privilege and Creative Destruction: The Charles River Bridge Case

Abstract: In this now-classic work in legal and constitutional theory, Stanley Kutler examines one of the Supreme Court's most celebrated decisions: the right of the state of Massachusetts to erect a free bridge over the Charles River in 1837--even though the state had previously chartered a privately owned toll bridge at the same location. (Legal Reference)

Utah Pie and the Consequences of Robinson-Patman

Abstract: DOES the Robinson-Patman Act' have the adverse economic effects its critics allege? Utah Pie v. Continental Baking Co.2 provides a revealing case study regarding this question. The Utah Pie opinion represents the current Supreme Court interpretation of the law on primary-line price discrimination and has provoked much criticism on the grounds that it serves to protect localized firms from the competition of more distant sellers.3 Our paper is an assessment of this conventional criticism of the Robinson-Patman Act and is based upon post-opinion evidence about the market in Utah Pie.