Showing papers on "Supreme court published in 1980"

Arbitrariness and Discrimination under Post-Furman Capital Statutes

Abstract: Drawing on a wide variety of data sources, this study examines arbi trariness and discrimination under capital statutes in Florida, Georgia, Texas, and Ohio, which are responsible for roughly 70 percent of the. death sentences imposed nationwide in the five years following the United States Supreme Court's Furman decision. It finds that there are gross dif ferences in the treatment of potentially capital offenders by race of of fender and victim and by judicial circuits within states. These are (1) inde pendent of aggravating felony-related circumstances, (2) present at both presentencing and sentencing stages of the criminal justice process, (3) uncorrected by the postsentencing appellate review process, (4) unaltered by the form and restrictiveness of capital statutes among states, and (5) remarkably similar to the best documented patterns of differential treat ment by race of offender and victim under pre-Furman capital statutes, now ruled unconstitutional. These findings show that the present system o...

Case selection in the United States Supreme Court

Abstract: For decades the Supreme Court has received more requests for review than it can possibly grant; it now rejects more than ninety percent of the petitions which fulfill jurisdictional requirements. Consequently, the process by which the justices select cases must be recognized as one of the most important aspects of the Court's work. But because it is hidden from public view and proceeds by secret ballot, the case-selection process has never been thoroughly analyzed. This concise and accessible study provides an intimate view of the Court's case-selection process through an analysis of the docket books and other papers of Justice Harold H. Burton, who kept scrupulous records of the Court's work from 1945 to 1957. In her analysis of these invaluable records the only records of case-selection votes made public since the advent of discretionary review in 1925 Provine provides two perspectives on the problematic issue of judicial motivation in case selection. The first perspective is an institutional one in which the Court is treated as the unit of analysis: the second is personal, in which differences among decision makers are the focus of analysis. Provine suggests that judicial role perceptions go far to explain both agreement and disagreement in case selection. She also considers the impact of the process upon litigants, since the system seems to favor petitioners with litigation expertise, especially the U.S. government. Yet, she claims, the secrecy of case selection fosters the popular misperception that any worthwhile case can be appealed "all the way to the Supreme Court." The Court thus maintains its image as a forum equally available to all litigants."

Killing and letting die

Abstract: This collection contains twenty-one thought-provoking essays on the controversies surrounding the moral and legal distinctions between euthanasia and "letting die." Since public awareness of this issue has increased this second edition includes nine entirely new essays which bring the treatment of the subject up-to-date. The urgency of this issue can be gauged in recent developments such as the legalization of physician-assisted suicide in the Netherlands, "how-to" manuals topping the bestseller charts in the United States, and the many headlines devoted to Dr. Jack Kevorkian, who has assisted dozens of patients to die. The essays address the range of questions involved in this issue pertaining especially to the fields of medical ethics, public policymaking, and social philosophy. The discussions consider the decisions facing medical and public policymakers, how those decisions will affect the elderly and terminally ill, and the medical and legal ramifications for patients in a permanently vegetative state, as well as issues of parent/infant rights. The book is divided into two sections. The first, "Euthanasia and the Termination of Life-Prolonging Treatment" includes an examination of the 1976 Karen Quinlan Supreme Court decision and selections from the 1990 Supreme Court decision in the case of Nancy Cruzan. Featured are articles by law professor George Fletcher and philosophers Michael Tooley, James Rachels, and Bonnie Steinbock, with new articles by Rachels, and Thomas Sullivan. The second section, "Philosophical Considerations," probes more deeply into the theoretical issues raised by the killing/letting die controversy, illustrating exceptionally well the dispute between two rival theories of ethics, consequentialism and deontology. It also includes a corpus of the standard thought on the debate by Jonathan Bennet, Daniel Dinello, Jeffrie Murphy, John Harris, Philipa Foot, Richard Trammell, and N. Ann Davis, and adds articles new to this edition by Bennett, Foot, Warren Quinn, Jeff McMahan, and Judith Lichtenberg.

Telling parents: clinic policies and adolescents' use of family planning and abortion services.

Abstract: Most teens tell their parents when seeking birth control or abortion services. However, if all family planning and abortion facilities had to notify parents, some 33,000 more unwanted pregnancies would occur among teens now practicing effective contraception; some 42,000 now obtaining legal abortions would turn to illegal practitioners or have unwanted births. U.S. courts have consistently upheld the right of mature minors to consent for contraceptive and abortion services.' In 1976, the Supreme Court ruled in Planned Parenthood of Central Missouri v. Danforth2 and in Bellotti v. Baird3 that parents cannot veto a minor's decision to obtain an abortion. In 1979, the Court reaffirmed that decision, indicating that neither consent nor notification may be required without offering a minor prompt administrative or judicial review to determine whether she is mature enough to give informed consent and, if she is not, whether the abortion is in her best interests .4 These decisions have also been interpreted as establishing the right of mature minors to obtain prescription contraceptives on their own; their right to obtain nonprescription contraceptives was established by the Supreme Court in 1977 in its ruling in Carey v. Population Services International.5 Despite these decisions, a number of states have attempted to impose parental consent requirements through legislative action; these laws have generally been struck down by the courts,6 usually because they did not allow prompt judicial review. Two states, however, have recently enacted parental consent requirements: Louisiana's law was passed late in 1980, and the Massachusetts law is being stayed under a temporary restraining order until the U. S. Court of Appeals for the First Circuit has reviewed an appeal of a lower-court decision upholding the law. Both the Louisiana and Massachusetts laws differ from previous statutes in that they allow a teenager to petition the court in order to obtain an abortion without previously notifying or involving her parents. 7 Only four states-Maryland, Montana, Tennessee and Utah-have notification requirements for the provision of abortion services to minors (in Maryland, doctors are not required to notify parents if they believe that the minor will be subjected to physical or psychological abuse if her parents know about her abortion).8 The Utah law has been appealed to the U.S. Supreme Court after being upheld by the Utah State Supreme Court;9 a decision is expected early in 1981. Family planning agencies that receive federal funds under Title X of the Public Health Services Act or under Titles XIX or XX of the Social Security Act are required to provide services to sexually active minors "without regard to age or marital status." A recent federal district court decision has held that no agency receiving such funds can require parental consent or notification before providing birth control services to minors. 10 Private agencies providing abortion or family planning services that do not receive such federal funds, however, are free, in the absence of a specifically applicable statute, to require consent or notification of parents or to serve minors on their own consent. It is not likely, given the current concern about family values, that there will be a quick end to the controversy over parental involvement in the decision of adolescents to use birth control and obtain abortions. It is useful, therefore, to examine the current parental consent and notification policies followed by abortion and family planning service programs, as well as the extent to which teenagers are already talking to their parents about these decisions, and, if they are not, what they would do if their parents were told. This article summarizes the findings of two national surveys conducted by The Alan Guttmacher Institute (AGI) that address these questions.

The Supreme Court's Impact on the Law of Libel: Compliance by Lower Federal Courts

Abstract: EGAL SCHOLARS traditionally analogized the federal judiciary to a pyramid, with the Supreme Court at the apex, the courts of appeals in the middle, and the district courts at the base. The scholars focused their attention upon the Supreme Court, because they believed that this was where the authoritative decisions were made. For them, the study of public law revolved around analysis of Supreme Court decisions; it was essentially the study of constitutional law. The scholars did not focus much of their attention upon the lower courts, because they assumed that these courts obeyed the dictates of the Supreme Court. In short, the scholars subscribed to a hierarchical model to explain the Supreme Court's relationship with the lower courts. But beginning in the 1950s, and continuing through the 1960s and 1970s, revisionist scholars criticized this model. They said it reflected an "upper-court myth"' and therefore provided an unsatisfactory explanation of the Supreme Court's relationship with the lower courts. Jerome Frank wrote, "In legal mythology one of the most popular and most harmful myths is the upper-court myth, the myth that upper courts are the heart of courthouse government .... In considerable part, this belief arises from the fallacious notion that the legal rules, supervised by the upper courts, control decisions."2

Economic Liberties and the Constitution

Abstract: In this seminal work, Bernard Siegan traces the history of onstitutional protection for economic liberties in the United States. He argues that the law began to change with respect to economic liberties in the late 1930s. At that time, the Supreme Court abdicated much of its authority to protect property rights, and instead condoned the expansion of state power over private property.Siegan brings the argument originally advanced in the .first edition completely up to date. He explores the moral position behind capitalism and discusses why former communist countries flirting with decentralization and a free market (for instance, China, Cambodia, Vietnam, and Laos) have become more progressive and prosperous as a result. He contrasts the benefits of a free, deregulated economy with the dangers of over-regulation and moves towards socialized welfare most specifically as happened during Franklin Roosevelt's presidency. Supporting his thesis with historical court cases, Siegan discusses the past and present status of economic liberties under the Constitution, clarifies constitutional interpretation and due process, and suggests ways of safeguarding economic liberties.About the original edition, Doug Bandow of Reason noted, "Siegan has written a vitally important book that is sure to ignite an impassioned legal and philosophical debate. The reason the necessity for protecting economic liberty is no less than that guaranteeing political and civil liberty." Joseph Sobran of the National Review wrote, "Siegan...makes a powerful general case for economic liberty, on both historical and more strictly empirical grounds.... Siegan has done a brilliant piece of work, not only where it was badly needed, but where the need had hardly been recognized until he addressed it." And Edwin Meese remarked that, "This timely and important book shows how far we have drifted from protecting basic liberties that the Framers of the Constitution sought to secure. I recommend it highly." This new, completely revised edition of Economic Liberties and the Constitution will be essential reading for students of economics, history, public policy, law, and political science.

The U.S. Supreme Court Myth, Diffuse Support, Specific Support, and Legitimacy

Abstract: Legitimacy exists when citizens comply with governmental edicts despite substantive disapproval. Attribution of legitimacy may proceed from at least three antecedents: subscription to a "judicial m...

Corporal Punishment in American Education

Abstract: In 1977, two youths severely beaten by their junior high school principal brought before the US Supreme Court the controversial issue of corporal punishment. The resulting Ingram vs Wright decision sparked a furor in American education. The highest court of the land ruled that corporal punishment as a disciplinary tool does not violate the Eighth Amendment prohibition of cruel and unusual punishment. Two years after the Supreme Court ruling, Irwin Hyman and James Wise, in their compendiumCorporal Punishment in American Education, have attempted to sift through the complex, multidisciplinary array of questions corporal punishment raises. However, as they state in their foreword, theirs is no dispassionate examination of the issue; it is a statement of the need for and search for rational alternatives, which is meant to inform the discussion in light of the Supreme Court ruling. The book is organized into eight sections, including historical perspectives, legal perspectives,

Responses of Federal District Judges to Court of Appeals Policies: An Exploration

Abstract: EPMPIRICAL research on the implementation of judicial policies has contributed substantially to our understanding of the American judicial process. But its contributions are limited by the narrowness of its focus. Typically, studies have examined response to single dramatic decisions of the Supreme Court on constitutional civil liberties issues. Few studies examine response to policies made by courts other than the Supreme Court, non-civil liberties policies, or judicial policies established in series of "little" decisions rather than single major rulings.1 This paper reports a study of response to judicial decisions that differs from most of the existing research in each of the respects that has been noted. The policies with which it is concerned are the policies of the federal courts of appeals on the legal standard of patent validity between the late 1930s and the early 1970s, policies which differed among circuits and which changed over time in particular circuits. The question that it seeks to answer is the extent to which this variation in policy at the appellate level can help to explain policy variation in the federal district courts, the direct subordinates of the courts of appeals. This question differs substantially from the question of compliance that is central to most studies of response to judicial decisions. The findings of this study will tell not about compliance with individual rulings but about the more diffuse impact of appellate policies on the corresponding policies of lower courts. Because of this different perspective, the study may be able to shed some new light on hierarchical relationships within the judiciary. Patent policy is a relatively obscure field, so a brief description of the courts' role in this field will be helpful in understanding the analysis to follow.2 Patent litigation generally involves disputes between patent owners, "patentees," and alleged or potential violators of their patent rights. Most cases are actions for patent infringement, violation of the rights of exclusivity attached to a patent. Of the issues that may arise in patent cases, the most significant for public policy is the validity of the patent in question. Most defendants in patent suits raise as a defense the claim that the patented invention fails to meet the statutory requisites for the receipt of patent rights in effect, that the Patent Office erred in issuing a patent. The federal patent statute provides judges with general criteria for the determination of validity, but these criteria leave room for considerable discretion; a court may interpret the criteria to demand a rigorous or a lenient standard of validity. The courts'

Fluidity on the United States Supreme Court: A Reexamination

Abstract: What is the extent and impact of fluidity on the Supreme Court? To answer this question partially the court's original vote on the merits is compared with its final vote during the period Harold Burton served as a justice (1945-1958). It is found that in 88 percent of the situations the justices voted the same way at both stages. There are no significant differences between the number of vote changes in major cases and in nonmajor ones. The fluidity that occurred was more likely to affect the size of a majority that was already winning at the original vote than to transform a minority at the original vote into a majority at the final vote. The vote changes also created a more attitudinally grounded vote, for the final vote scales generate better scale correlations than the original vote scales. These differences, however, disappear when the consensus cases are omitted.

The Cue Theory of Supreme Court Certiorari Jurisdiction: A Reconsideration

Abstract: O NE OF THE EARLIEST ATTEMPTS to specify a general theory describing the exercise of the Supreme Court's discretion to grant a hearing was published in 1963 by Joseph Tanenhaus and his associates. ' Nine years later, with different data and somewhat different methods, S. Sidney Ulmer undertook to replicate the Tanenhaus theory.2 The purpose of this short paper is to reexamine those articles and then to evaluate the theory with new data.

Court Curbing, Court Reversals, And Judicial-Review - The Supreme-Court Versus Congress

Abstract: Congress and the Supreme Court have had many intense conflicts over the years. This paper examines that relationship in an effort to determine whether the Court's role is essentially that of legitimator or disturber of the political universe. Drawing upon the analysis of Dahl as critiqued by Funston, Adamany, and Casper, the relationship is tested using a much broader data base than was used by the previous studies. Based upon this analysis, the Court is characterized as a legitimator but also as a significant wielder of power (contrary to Dahl's earlier assertions).

Separate but Not Equal: The Supreme Court's First Decision on Racial Discrimination in Schools

Abstract: In 1899, three years after the “separate but equal” decision of Plessy v. Ferguson, the U. S. Supreme Court for the first time confronted the problem of racial discrimination in education. Writing for a unanimous court, Justice John Marshall Harlan, whose recently refurbished reputation rests chiefly on his liberal opinions in Negro rights cases, decided in effect that the judiciary would do no more to guarantee equality in public services than it had to stop legalized segregation. " ... the education of the people in schools maintained by state taxation is a matter belonging to the respective States," the justice, who was rarely a protector of states' rights, concluded, "and any interference on the part of Federal authority with the management of such schools cannot be justified except in the case of a clear and unmistakable disregard of rights secured by the supreme law of the land. We have here no such case to be determined …. " Attracting even less attention at the time than Plessy did, the case of Joseph W. Cumming, James S. Harper, and John C. Ladeveze v. School Board of Richmond County, Ga. has never received the attention Plessy gained in the wake of the outlawing of segregation in the 1954 Brown decision.

State implementation of supreme court decision: abortion rates since Roe v. Wade.

Abstract: I N NINETEEN SEVENTY-THREE, the United States Supreme Court ruled in Roe v. Wade (410 U.S. 113) that access to abortion during the first three months of pregnancy was guaranteed by Constitutional provisions concerning privacy. But the Court's action did not remove the controversial question of abortion from the public to the private domain. Instead, Roe has contributed to continuing public debate over the implications of abortion for welfare policy, civil liberties, race relations, religion, and women's rights. Sufficient time has elapsed since the Roe decision that we can begin to examine the impact (if any) of that decision on the people most directly involved: American females of child-bearing age. This paper will first discuss national trends in abortions, illegitimacy, maternal mortality rates, and birth rates since Roe. I then focus on state implementation of abortion policy. Has Roe resulted in equal access to abortion in all 50 states, at least during the first trimester? If not, what political, economic, and social factors account for variations in access to abortion? As I shall show, interstate differences in abortion rates have diminished considerably since 1973. Population factors such as race, poverty, and religion explain little of the variance in state abortion rates. But availability of medical services, Medicaid, and legislative support for liberalized abortion policies vary widely across states, resulting in considerable inequality of access for women, especially poor women, who seek abortions. A path analysis shows that political factors are central to

A Longitudinal Study of Party Effects on Federal District Court Policy Propensities

Abstract: Comparison with the effects of party differences on congressional voting suggests that party-related liberalism or conservatism on the federal district courts may vary over time. The proposition that partisan differences in district courts will increase during periods of Supreme Court ambiguity is tested by correlating party preference to civil liberalism for each year from 1960 to 1976. The finding that party effects increased dramatically after 1968 offers some support for the ambiguity proposition. However, the pattern of increased party-related differences suggests that these differences may also be influenced by issue evolution and by change in presidential party. Future research is needed to clarify the relative effects of presidential party change, issue evolution, and Supreme Court ambiguity on the expression of federal district judges' partisan differences.

Hispanic Perspective: Textbooks and Other Curricular Materials

Abstract: IN LATE 1978 a weekly news magazine described Hispanics as this "country's fastest growing minority ... bidding to become an increasingly influential one... in shaping [this] nation's politics and policies."' Graciela Olivarez, director of the federal Community Services Administration, noted: "We don't have someone on the Supreme Court yet, or a Cabinet Secretary, but we'll have that to look forward to in the next go-round [presidential election]."2 More recently in an educational journal featuring a section on Hispanics, Congressman Edward Roybal described the group as "growing more rapidly than is any other major segment of the population."3 Numbering over nineteen million, it is estimated that Hispanics will surpass the black population sometime after 1982. An accompanying article by Edward W. Fernandez listed some statistics that describe the group's socioeconomic status:4

Consumer Response to Advertisements for Legal Services: An Empirial Analysis:

Abstract: In the near future, advertisement of professional services will become a reality. This is especially true of the legal profession. On June, 27, 1977, in a historic though confusing decision, the Supreme Court lifted a ban on the advertising of legal fees and routine services. While several theoretical arguments may be advanced favoring professional advertising, there is a scarity of empirical studies supporting these claims. This study represents one modest attempt to rectify this lack of empirical research regarding the impact of advertising upon the demand for legal services.

Antitrust Damages and Economic Efficiency: An Approach to Antitrust Injury

Abstract: Three years ago, the Supreme Court enunciated the concept of "antitrust injury,"' which requires that antitrust-damage liability flow from the anticompetitive aspect of an unlawful practice. Since then, the concept has often been raised in litigation, and has sparked frequent judicial discussion.2 Courts and commentators, however, have developed no coherent theory to guide the application of the antitrust-injury doctrine in the award of damages for antitrust violations. This article will attempt to provide such a theory:3 it argues that the familiar criterion of economic efficiency gives content to the concept of antitrust injury, and therefore can be used to shape the award of antitrust damages.

The Emerging Prosecutor Dominance of the Juvenile Court Intake Process

Abstract: The 1967 In re Gault decision by the United States Supreme Court expressly noted that its procedural requirements for the adjudicatory stage had no necessary applicability to the preadjudication treatment of juveniles. However, the Gault mandate of the right to defense counsel in time led to greater prosecution representation of the community interest at ad judicatory hearings. This set in motion another development which is now eroding probation officers' informal, discretionary practices at the intake stage. State legislatures, responding to public concerns regarding juvenile crime, are rapidly placing prosecutors in decisional roles at juvenile intake, using various models in accommodating and accomplishing this. This development portrays yet another example of the replacement of historic juvenile court informality and parens patriae practice by a legal process model.

The Formative Period of First Amendment Theory, 1870-1915

Abstract: The constitutional grant could not have been simpler: the Framers needed just ten words to codify America's free speech ideal. Yet the stark brevity of the First Amendment is inherently deceptive. Couched within that naked license lie definitional complexities which have confounded the nation's legal elite ever since 1791. Despite this legal ambiguity, the prevailing historiography of free speech can be briefly summarized. The broad libertarian potential of the First Amendment was never realized by antebellum America; more than a century later a rash of repressive antisocialist legislation spawned debate and test cases which laid the groundwork for the post-World War I doctrinal development of a mature free speech principle.' Perhaps it is the disarming simplicity of this theory which is both perplexing and troubling. Clearly the trilogy of 1919, which found Justice Holmes writing for the majority in Schenck,2 Frohwerk, 3 and Debs4 did mark the first prolonged onslaught by free speech advocates at the Supreme Court level.5 And the first treatise devoted to free speech was published the following year. When Professor Zechariah Chafee of Harvard Law School undertook the

Ideology as a Factor in Senate Consideration of Supreme Court Nominations

Abstract: T HE SUPREME COURT NOMINATIONS of the late 1960s and early 1970s revived the question of the nature of the Senate's constitutional duty to advise and consent to these nominations. Should there or should there not be a presumption in favor of the President's choice? On what basis should the Senate decide whether or not to give its consent? On what basis does it decide? The record of Senate consideration of Supreme Court nominations in this century strongly suggests that there is a Senate presumption in favor of confirmation. An examination of the last eight nominations to the Supreme Court shows that ideological opposition alone is not sufficient to make a nomination highly controversial. However, a breakdown of the Senate vote on the four most controversial of these nominations-those of Abe Fortas, Clement Haynsworth, G. Harrold Carswell, and William Rehnquist-shows that once a nomination becomes controversial, the ideological position of a senator is a major factor in determining how he will vote. The existence of a presumption in favor of confirmation of other high government officials, such as cabinet officers and ambassadors, has long been recognized. Since the President is ultimately responsible for their conduct in office, he has a right to advisors and officers of his choice unless they can be shown to be immoral or incompetent. However, a view of Supreme Court justices as the President's subordinates would be a violation of the concept of separation of powers between equal and coordinate branches of the

The Judiciary: The Supreme Court in the Governmental Process

Abstract: Revised and updated to include the latest Supreme Court decisions, this classic text, now in its tenth edition, provides a concise overview of the judiciary in general and the Supreme Court in particular. The only book available that combines theory and practice of the judicial process with civil rights and liberties, The Judiciary acquaints students with the intricacies of our courts, the people who compose them, and their relationship to other branches of government, as well as to individuals and groups.