Showing papers on "Supreme court published in 1982"

Fair Representation: Meeting the Ideal of One Man, One Vote

Abstract: The issue of fair representation will take center stage as U.S. congressional districts are reapportioned based on the 2000 Census. Using U.S. history as a guide, the authors develop a theory of fair representation that establishes various principles for translating state populations --or vote totals of parties --into a fair allocation of congressional seats. They conclude that the current apportionment formula cheats the larger states in favor of the smaller, contrary to the intentions of the founding fathers and compromising the Supreme Court's ""one man, one vote"" rulings. Balinski and Young interweave the theoretical development with a rich historical account of controversies over representation, and show how many of these principles grew out of political contests in the course of United States history. The result is a work that is at once history, politics, and popular science. The book --updated with data from the 1980 and 1990 Census counts --vividly demonstrates that apportionment deals with the very substance of political power.

Consensual and Nonconsensual Decisions in Unanimous Opinions of the United States Courts of Appeals

Abstract: to divided decisions. Unanimous decisions of the U.S. courts of appeals from two time periods separated by three decades were studied. Contrary to the widespread expectation that most unanimous decisions were truly consensual decisions whose outcomes were determined by precedent or other institutional/role restraints, a substantial proportion of the outcomes in unanimous decisions in both periods were found to reflect the ideological preferences of the panel majority. Criminal appeals and the unanimous reversals of decisions in cases raising economic issues were the types of cases in which unanimous decisions were most likely to be consistent with the ideology of the court majority. Following the pioneering work of Herman Pritchett (1941, 1948), a whole generation of students of judicial decision making has focused on the votes (rather than the opinions) of judges while developing increasingly sophisticated methods of quantitative analysis. With few exceptions, modern students of appellate courts have limited these analyses to nonunanimous decisions. This limitation is usually based on Pritchett's assumption that some cases present the judge with "choice situations sufficient to alter the outcomes while other cases do not" (Goldman, 1969, p. 217). If this assumption is accepted, one must then ask how one knows which cases present reasonable decisional alternatives. The answer supplied by the Pritchett model is that dissent may be taken as an objective indicator that legitimate alternatives were open to the judges. Consensus, on the other hand, is thought to indicate the absence of a real choice situation. The reasons for the exclusion of unanimous decisions in the analysis even of courts with much lower dissent rates than those found on the Supreme Court are spelled out most clearly by Sheldon Goldman. In studies of the U.S. courts of appeals Goldman's model suggests that "in general a consensually decided case indicates that 'objectively' the case situation (either because of clear-cut precedent, or the straight-forward

Essays in the History of Canadian Law

Abstract: Foreword Acknowledgments Contributors Introduction CHRISTOPHER ENGLISH Part One: Historiography * The Legal Historiography of Newfoundland CHRISTOPHER ENGLISH * The Legal Historiography of Prince Edward Island J.M. BUMSTED Part Two: The Administration of Justice * Politics and the Administration of Justice on Early Prince Edward Island, 1769-1805 J.M. BUMSTED * Surgeons and Criminal Justice in Eighteenth-Century Newfoundland JERRY BANNISTER * The Supreme Court on Circuit: Northern District, Newfoundland, 1826-33 NINA JANE GOUDIE Part Three: Property Law and Inheritance * Formal and Informal Law in Two New Lands: Land Law in Newfoundland and New South Wales under Francis Forbes BRUCE KERCHER AND JODIE YOUNG * Defining Property for Inheritance: The Chattels Real Act of 1834 TRUDI JOHNSON *'The Duty of Every Man': Intestacy Law and Family-Inheritance Practice in Prince Edward Island, 1828-1905 MICHEL STAIRS Part Four: Legal Status and Access to the Courts by Women 'Now You Vagabond [W]hore I Have You': Plebeian Women, Assault Cases, and Gender Relationships on the Southern Avalon, 1750-1860 WILLEEN L. KEOUGH Women in the Courts of Placentia District, 1757-1823 KRISTA L. SIMON 'Out of Date in a Good Many Respects': The Legal Status and Judicial Treatment of Newfoundland Women, 1945-9 LAURA BROWN Part Five: Litigation in Chancery and at Common Law * Bowley v. Cambridge: A Colonial Jarndyce and Jarndyce BAVID M. BULGER * The Judges Go to Court: The Cashin Libel Trial of 1947 CHRISTOPHER ENGLISH Index

Ways of Criticizing the Court

Abstract: Critics have attacked Supreme Court decisions not only for their substance, but also for their structure and inconsistency. Professor Easterbrook responds to these critics by arguing, first, that the increasing caseload of the judiciary, coupled with the techniques of Supreme Court case selection, makes more fractured decisions inevitable. Second, Professor Easterbrook applies Arrow's Theorem to show that it is impossible for critics to demand consistent decisions from the Supreme Court without requiring it to sacrifice its essential institutional nature.

An econometric analysis of the U.S. Supreme Court's certiorari decisions

Abstract: This paper presents a model of the Supreme Court's certiorari behavior. The analysis assumes that the Court accepts or rejects a case according to the individual justice's perceptions of how deciding the case will affect the law. The model generates two testable hypotheses. First, there is a positive relationship, ceteris paribus, between voting to grant certiorari and voting with the majority on the final decision. This hypothesis is somewhat similar to Brenner's and diametrically opposed to Provine's. Second, there is a positive relationship, ceteris paribus, between voting to grant certiorari and voting to reverse the lower court's decision. This hypothesis is similar to those developed by Ulmer, Baum, Brenner, and Provine although their underlying models are quite different. Both the hypotheses presented in this paper are supported by a maximum-likelihood logistic analysis of 512 cases decided by the Court between 1947 and 1956.

The Ideological Origins of the Second Amendment

Abstract: Since its ratification in 1791 the Second Amendment has remained in relative obscurity. Virtually ignored by the Supreme Court, the amendment has been termed "obsolete," "defunct," and an "unused provision" with no meaning for the twentieth century by scholars dealing with the Bill of Rights.1 And yet, many Americans consider this amendment as vital to their liberties today as did the founders nearly two hundred years ago. Their sense of urgency arises from the current debate over gun control. Disagreements over gun legislation reveal disparate perceptions of American society that rest upon, or inspire, dissimilar interpretations of the Second Amendment. Opponents of restrictive measures emphasize the free individual's rights and privileges and adamantly contend that the "right to bear arms" phrase constitutes the essence of the amendment. Their bumper stickers-modern day cockades-declare: "When guns are outlawed only outlaws will have guns," or "Hitler got his start registering guns." These simplistic ideas, symbolic of much deeper and more complex ideological beliefs, gain sustenance from a wide variety of popular sources. It is the National Rifle Association (NRA), however, that transforms this popular impulse into one of the most powerful and active lobbies in Washington. Its magazine, The American Rifleman, clearly states the issue: "The NRA, the foremost guardian of the traditional American right to 'keep and bear arms,' believes that every lawabiding citizen is entitled to the ownership and legal use of firearms. a "2 For their part, advocates of restrictive gun legislation emphasize collective rights and communal responsibilities. In order to protect society from the violence they associate with armed individuals, these people stress the "well reg-

Consumer Information and the Pricing of Legal Services

Abstract: In a classic article on the economics of information, George Stigler discussed the impact advertising could have on the dispersion of seller prices quoted in a marketplace.1 As one source of price information, advertising reduces search costs for consumers wishing to obtain some product or service at its lowest possible price.2 The more comparison shopping consumers do because of lower search costs, the better informed they will be about seller price differences and, hence, the less price dispersion the market will support. Until recently, there has been little opportunity for Stigler's process to operate in the market for legal services. The first Canons of Ethics adopted by the American Bar Association in 1908 contained a prohibition against advertising by attorneys and within a few years that provision was adopted in every state, either by legislation, court rule, or court decision. Almost seventy years later, however, in June 1977, the U.S. Supreme Court held, in Bates v. State Bar of Arizona (433 U.S. 350), that attorneys had a first amendment right to advertise fees for routine legal services. The Court's decision was based in part on benefits to consumers that were assumed to follow from advertising-benefits such as the increased ability to shop for prices and, presumably, to obtain lower ones. In 1978 a study was conducted on legal service pricing and advertising in Phoenix, Arizona. Its results provide some evidence on the informed nature of the consumer of routine legal services and the importance of consumer information in the pricing of such services. The purpose of this paper is to present those results. The paper is divided into three sections. In the first section, several factors influencing attorney pricing behavior are analyzed. Routine legal services are distinguished from other legal services in terms of three production function variables. In the second section, the methodology and empirical results of the 1978 Phoenix Area Survey of Private Practicing

Public Support for the Supreme Court in the 1970s

Abstract: In the 1960s, Murphy and Tanenhaus examined the linkages between public opinion and the U.S. Supreme Court. This article represents a new look at that question within the context of the 1970s, using national survey data. Four clusters of explanations are developed, based upon the previous literature, and tested, using trust in the Court as the dependent vanable. The two most important explanatory variables found are race and education, but race is declining as an explanation for variations in support for the Court.

Statistical Evidence of Discrimination

Abstract: Generally speaking, laws against discrimination prohibit treating similarly situated persons differently. Legal analysis or social policy supplies the criteria for ascertaining which persons are similarly situated. Statistical evidence has been used in cases, among others, alleging discrimination in criminal prosecutions, educational opportunities, jury selection, and employment practices. The United States Supreme Court has been ambivalent about the need for significance testing in such cases, and it has yet to consider carefully the use of formal inferential methods. Various techniques for conveying information to a court about the inferential value of sample statistics are illustrated in the context of two jury-selection discrimination cases. The role of statistical evidence in certain employment discrimination cases is also considered. It is suggested that the classical method of hypothesis testing used by the Supreme Court is not appropriate to testing whether a given defendant discriminated...

Dimensions of Institutional Participation: Who Uses the Courts, and How?

Abstract: N OT SO VERY LONG AGO, political scientists who studied courts focused almost exclusively on judges-particularly Supreme Court justices-and their decision-making behavior. It was not until the late 1960s that courts (other than the Supreme Court) as institutions became a primary subject of research. Today the question of whether-or if-courts can deal effectively with the demands of a changing social order is high on the agenda of academic researchers and policy makers alike.' Our legal order is changing. Courts today are burdened by unprecedented numbers of cases, and by demands for social policy engineering of great scope and complexity.2 Conflict over the ways in which citizens use the courts, the expectations that are developed, and the demands and ways in which courts respond to these demands form the backdrop for this inquiry, and for the larger project from which this particular analysis is drawn.

Supreme Court Appointments as a Poisson Distribution

Abstract: When Jimmy Carter stepped down as president on January 20, 1981, he carried with him at least one unique distinction: he is the only president serving four or more years who failed to make a single appointment to the U.S. Supreme Court. Since four-year presidents have appointed as many as five justices in a term and have averaged approximately two such appointments,' the Carter experience may be seen by some as anomalous. This is particularly true if one thinks the age and health of the Court's justices at the beginning of a presidency are predictors of the appointments to be made over the following four years,2 or if one views the appointments themselves as interdependent events. From a different perspective, one may view the vacancies occurring in the Court as a series of independent events that distribute themselves across time according to some statistical function. After Franklin D. Roosevelt was unable to make any Court appointments in his first term, W. Allen Wallis (1936) established that, on a yearly basis, the frequency of vacancies was accurately described by a Poisson function.3 The Wallis analysis covered the period 1837-1932, finding a significant fit between a Poisson distribution of vacancies and the distribution of the actual va-

Sentencing Disparity and Jury Packing: Further Challenges to the Death Penalty

Abstract: No legal sanction has produced more debate and greater controversy than capital punishment. Although the debate on the death penalty encompasses many issues, including its deterrent effect and moral justification, a recurrent theme has been the manner in which it has been applied. Critics of capital punishment have pointed out that, as historically applied, the death penalty has been discriminatory, with a greater proportion of executions for blacks compared with whites. This position was argued by counsel for Furman in the landmark case, Furman v. Georgia.' Other sources of institutional discrimination and bias in capital cases, such as jury selection procedures, have also been identified. Recognizing the history of systematic biases in the states' use of the death penalty, the Supreme Court has tried to eliminate procedural irregularities from the death sentencing process. In two notable cases,

Certiorari Decisions by the Warren & Burger Courts: Is Cue Theory Time Bound?

Abstract: In 1963 Joseph Tanenhaus and associates proposed a "cue theory" to explain how the Supreme Court reaches decisions on whether or not to grant certiorari.1 This theory suggests that the justices use case characteristics such as the appearance of the federal government as an appellant, civil liberties as an issue, or dissension over the case in the lower courts, as cues to help identify important cases. Although many judicial texts continue to use cue theory to explain certiorari decision making,2 recent empirical research indicates a new interest in other aspects of this process.3 Some researchers have focused on "access policy making" 4

Discrimination in Seniority Systems: A Case Study

Abstract: According to the 1977 U.S. Supreme Court decision in Teamsters v. U.S., seniority systems that have disparate impacts on women and black workers as compared to white men are not necessarily illegal...

Master of the Game

Abstract: One of Sidney Sheldon's most popular and bestselling titles, repackaged and reissued for a new generation of fans. Kate Blackwell is one of the richest and most powerful women in the world. She is an enigma, a woman surrounded by a thousand unanswered questions. Her father was a diamond prospector who struck it rich beyond his wildest dreams. Her mother was the daughter of a crooked Afrikaaner merchant. Her conception was itself an act of hate-filled vengeance. At the extravagent celebrations of her ninetieth birthday, there are toasts from a Supreme Court Judge and a telegram from the White House. And for Kate there are ghosts, ghosts of absent friends and of enemies. Ghosts from a life of blackmail and murder. Ghosts from an empire spawned by naked ambition! Sidney Sheldon is one of the most popular storytellers in the world. This is one of his best-loved novels, a compulsively readable thriller, packed with suspense, intrigue and passion. It will recruit a new generation of fans to his writing.

Earl Warren, a public life

Abstract: This is a major biography of one of America's most influential and respected Supreme Court justices by a leading law scholar. In the late 1970s, Earl Warren's papers were opened and G. Edward White, a former law clerk of Warren, was given complete access to research this book. The result is the first study of the Chief Justice to cover his entire political career and to examine aspects of Warren's character that have seemed paradoxical. White goes back to Warren's roots in California Progressivism to illuminate his mid-century liberalism and the controversial decisions over which he presided in the Supreme Court. Based on a wealth of newly available information and White's understanding of Warren's work and personality, this is a fascinating, original portrait of Chief Justice Earl Warren.

Fluidity on the Supreme Court: 1956-1967

Abstract: Howard (1968) speaks of extensive fluidity in vote and language on the U.S. Supreme Court. In my earlier analysis, based upon Justice Harold Burton's docket books, I compared the original vote on the merits in conference with the final decision vote in the 1946 to 1956 period and found considerable stability in voting. I examined both strong fluidity (i.e., a shift from reverse to affirm or from affirm to reverse) and weak fluidity (a switch from nonparticipation to affirm or reverse or vice versa). Now that the University of Texas Law Library has opened Justice Tom Clark's docket books, I can test whether the results of my earlier study hold for the post-Burton part of Clark's service-the 1956 to 1967 period.'

The Principles and Traditions Underlying State Constitutions

Abstract: Over the years, considerable attention has been given to the political theory of the United States Constitution and its implications for American government and politics. Studies of the document itself, the Constitutional Convention of 1787, The Federalist Papers. Supreme Court interpretations, and executive and legislative actions of constitutional import abound, as well they should. State constitutions, however, have been studied almost exclusively from a reformist perspective-to recommend the elimination of presumed deficiencies. Relatively little attention has been given to the underlying political theories and philosophic assumptions of the fifty state constitutions and their colonial predecessors. Even when students of American government, as well as reformers. have examined state constitutions from the perspectives of history, institutional organization, interest accommodation, and the inclusion or exclusion of specific provisions, they have generally bypassed the important functions of state constitutions as (1) overall frames of government for polities which are, in most cases, larger and better developed than most of the world's nations: (2) practical public expressions of political theory and the purposes of government: and (3) reflections of public conceptions of the proper roles of government and politics. The tendency has been to assume either that the philosophic assumptions of the state constitutions are the same as those of the United States Constitution or that state constitutions are wordy patchworks of compromises having little, if any, rhyme or reason. Neither assumption is accurate, and even those constitutions which can be said to be a bundle of compromises reflect the political struggle between representatives of competing conceptions of government within particular states. Moreover, compromise itself reflects a larger theory of politics based upon bargaining and negotiation as opposed, for example, to command or armed conflict. This slighting of state constitutional theory is ironic because the framers of the federal Constitution were influenced by their experiences with their respective state constitutions and the preexisting conceptions of constitu-

Civil commitment: is the pendulum changing direction?

Abstract: lIt has become a commonplace to observe that commitment law in the United States rides a pendular course. In the last century and a half, as the public has alternately occupied itself with rights of the mentally ill and attention to their treatment needs, substantive and procedural standards for civil commitment have grown in turn more and less stringent (1). There are now several telltale signs that we are approaching another turning point. The current reversion to rigorous civil commitment standards and procedures-what some term the “enminalization” of the mental health system-began nearly 15 years ago. California’s passage in 1969 of the Lanterman-Petris-Short Act (2) and the 1972 Wisconsin case of Lessard v. Schmidt (3) are often cited as landmarks in the process. During this period the nation has witnessed an almost total abandonment of the “need for care and treatment” standard that previously governed commitment in favor of reliance upon determinations of dangerousness (4). We have also seen the construction of multiple legal safeguards against improper commitment, including rights to court hearings, representation by counsel, and the use of more demanding standards of proof. Although the United States Supreme Court has repeatedly declined the opportunity to endorse most of these changes, the lower courts continue to extend these rights. Thus recent decisions have granted patients the right to remain silent at commitment hearings (5), and the right to an abrogation of their commitment for the failure of their counsel to challenge hearsay testimony (6). Many psychiatrists have opposed these changes from the beginning. But psychiatric remonstrations appear to have had little effect on either legislators or judges, who have, because of civil-libertarian or economic concerns, continued to push for more restrictive commitment policies. The current signs of a change in those approaches to civil commitment are tentative ones. Nevertheless,

Putting hospitals on notice.

Abstract: O n April 15, 1982, a six-day-old infant known only as Baby Doe died at Bloomington Hospital in Indiana after his parents, with the approval of the courts, denied him food, water, and surgical aid. Although reliable facts are sparse, it appears that the child was born with tracheoesophageal fistula, a condition in which the esophagus is not connected to the stomach, preventing normal eating. The condition is usually correctable with surgery but Baby Doe was also bor with Down syndrome; apparently for this reason his parents did not want him to live. A local court upheld their decision and the Indiana Supreme Court either declined to review the case or approved the lower court decision without issuing an opinion. The court record is sealed and there is no information to determine whether the deci-

Strategic Choice and Opinion Assignment On the U. S. Supreme Court: a Reexamination

Abstract: UPREME COURT scholars are interested in opinion assignment on the Court because the justice who writes the Court's opinion has substantial control over its content. Four different researchers (Danelski, 1960; Ulmer, 1970; McLauchlan, 1972; and Rohde, 1972) examined four different data sets and found that some opinion assigners, in some kinds of cases overassigned the opinion to some categories of justices close to the dissenters (see Table 1). The most ambitious of the opinion assignment studies was the one conducted by Rohde. Rohde inspected the five-member decision coalitions in the orally argued civil liberties cases on the Warren Court and found that the marginal and pivotal justice was chosen to write a significantly greater share of the opinions of the Court than can be expected by chance. The marginal justice in a five-person decision coalition is the justice in the coalition who is ideologically closest to the minority, while a pivotal justice is the justice furthest away ideologically from the opinion assigner. Why is the pivotal and marginal justice favored in opinion assignment? We learn from Rohde that in civil liberties cases the opinion assigner seeks an opinion that conforms to his own ideological views and to achieve this end he usually assigns the opinion to himself or to a justice ideologically close to him. Therefore, when the opinion assigner designates the marginal and pivotal justice to author the Court's opinion he is depriving himself of a benefit. What might the opinion assigner get in return for giving up this

Realizing Self-Realization: Corporate Political Expenditures and Redish's the Value of Free Speech

Abstract: In First National Bank v. Bellotti,1 the Supreme Court invalidated a Massachusetts statute prohibiting most corporate contributions and expenditures made to influence voting on referendum and initiative proposals. The Court reasoned that "[w]e . . . find no support in the First or Fourteenth Amendment . . . for the proposition that speech that otherwise would be within the protection of the First Amendment loses that protection simply because its source is a corporation." 2 This Supreme Court decision to protect profit-oriented corporate political speech will, if followed, probably do more to undermine people's "ability to control [their] own destiny" 3 than any of the Court's recent refusals to protect self-expressive conduct.4 This consequence, taken along with Professor Redish's apparent approval of the decision," makes Bellotti a particularly good lens through which to begin to examine Redish's development of the self-realization value that he asserts is basic to the first amendment.

Should lawyers advertise? A study of consumer attitudes

Abstract: The issue of whether professionals should advertise has generated quite a controversy over the past several years. Since the historic decision of the Supreme Court in theBates vs. State Bar of Arizona which ruled the State Bar's proscription against advertising fees for legal services was unconstitutional, much has been written about the ethical ramifications of the decision and the attitudes of various professional groups toward the use of advertising. This paper focuses on the attitudes of “consumers” toward the advertising of legal services. The results of the study suggest that advertising does have an impact on the professional's image although not necessarily the negative impact many professionals believe.

Withholding of life-sustaining treatment from the terminally ill, incompetent patient: who decides? Part II.

Abstract: Part I of this article traced the early development of the law regarding decisions to discontinue potentially life-prolonging treatment of terminally ill patients (1982; 248:2250). In the seminal case of In re Quinlan , 355 A2d 647 (NJ 1976), the New Jersey Supreme Court held that a patient's constitutional right of privacy includes the right to refuse treatment where such treatment can only perpetuate a comatose, vegetative existence. Furthermore, this privacy right may be exercised on the incompetent patient's behalf by the guardian, family, and attending physicians, with the approval of the ethics committee of the hospital involved. Subsequent decisions in other jurisdictions have endorsed Quinlan's constitutional rights analysis and have adopted, in principle, the concept of "substituted judgment." Many courts have rejected Quinlan's formula for private decision making, however, opting instead to delineate guidelines for determining when judicial approval is required to implement nontreatment decisions. Superintendent of Belchertown State School

Policy preferences of justices and presidents

Abstract: Focusing on the issue of civil rights, this study examines the relationship between policy preferences of presidents and the votes of the Supreme Court justices they appointed. Through content analysis of presidential statements, relatively systematic measures of civil rights policy views for five recent presidents were obtained and compared with the voting records on civil rights of justices they appointed to the Supreme Court. The findings suggest that although a correspondence exists between presidential preferences and judicial votes, presidents have been only moderately successful in appointing justices whose votes reflect presidential preferences.