Showing papers on "Supreme court published in 1985"

Religion in American Public Life

Abstract: We are,"" said Supreme Court Justice William O. Douglas, ""a religious people,"" and his observation is continually borne out in every aspect of American public life. Religious ideals underlay the founding of the colonies and the firming of the new nation; the activities of churches have been closely interwined with politics in the abolition of slavery, the drive for women's suffrage, the prohibition of liquor,and the civil rights movement of the 1960s. The recent revival of arguments over the participation of relgious groups in politics points up the continuing controversey about the separation of church and state. In this study, A. James Reichley places religion and politics within a conceptual framework that considers the values in which both are rooted and examines, in light of that framework, the actual impact of religion and religious groups on American public life. He analyzes the underlying causes and issues involved, their contemporary impact, and their continuing evolution. Finally he discusses how the involvement of religious groups in politics can be carried on within the context of the separation of church and state without threat to civil liberties or seculat politicalization of religion.

The Limits of Antitrust

Abstract: The author argues that that the inhospitality tradition in antitrust has serious costs and causes judges to reject economically beneficial business practices. He also contends that the main alternative to the inhospitality tradition, the rule of reason enunciated by the Supreme Court, does not provide useful guidance to judges in antitrust, because it is completely open-ended and provides no assistance in determining how to weigh the relevant factors. He then proposes his own alternative approach to deciding anti-trust cases. Specifically, he suggests that judges should mimic the approach taken by economists and deploy a series of presumptions — or «filters» — to guide their inquiry. The author believes this would make it easier for businesses to plan their affairs, and also reduce litigation costs.

Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins Of Laissez-Faire Constitutionalism

Abstract: Until recently, historians of American constitutionalism agreed that, except for the infamous Dred Scott decision, the most unfortunate decisions of the Supreme Court were those that incorporated the notion of laissez-faire into the Constitution in the late nineteenth century. These decisions permitted the Court to frustrate efforts to secure a more just economic order in the United States until the 1930s. The intellectual foundations of laissez-faire constitutionalism have been so alien to most legal scholars since the 1930s (and equally unintelligible to many even earlier) that they have found it difficult to believe these decisions were the result of efforts to enforce ‘neutral’ principles of constitutional law, to utilize the terms of Herbert Wechsler's famous analysis. They could not conceive of the Court's rhetoric about liberty and due process as anything but cant, a subterfuge designed to camouflage other purposes.

Emergence of a Free Press

Abstract: Leonard W. Levy's Legacy of Suppression so disturbed Supreme Court Justice Hugo L. Black that he called it "one of the mosts devastating blows that has been delivered against civil liberty for a long time." Published in 1960, this book challenged the liberal interpretation of the First Amendment by claiming that the framers of the Constitution intended it only as a protection against the prior restraint of a publication. It was not, Levy vehemently argued, meant to be used as a defense in seditious libel cases. In other words, freedom of the press meant that a publisher had the freedom to publish, but not without impunity. ____In Emergence of Free Press, Levy rethinks many of the controversial opinions put forth in the original work. A revised and enlarged edition of the first volume, it offers a more moderate view of the rights guaranteed by the First Amendment. Based on extensive additional research, especially on the newspapers published in Revolutionary America, Levy now concedes that the original interpretation of the First Amendment, even if it wasn't the framers' intention, was broad in scope. "That so many courageous and irresponsible editors risked imprisonment amazes me," he writes. Though he holds to his belief in the writers' intention, he concludes that we don't have to be limited by their narrow view.

The Supreme Court and Public Opinion: Judicial Decision Making in the Post- New Deal Period

Abstract: The countermajoritarian activism of the Supreme Court is usually assessed in terms of the willingness of the Court to overturn legislation and/or to protect minorities. Using these criteria, the post-New Deal Supreme Court emerges as an exceptionally active countermajoritarian decision-making institution. It is also important, however, to examine the relationship between the Court's decisions and public opinion. Such an examination reveals that the Court's decisions overturning legislation and/or protecting minority rights were often supported by the distribution or at least the trend of nationwide public opinion and that when such support was lacking, the Court seemed reluctant to act. Thus, the policymaking activism of the post-New Deal Supreme Court was perhaps more consistent with majoritarian principles than is sometimes supposed.

Black Innocence and the White Jury

Abstract: Racial prejudice has come under increasingly close scrutiny during the past thirty years, yet its influence on the decisionmaking of criminal juries remains largely hidden from judicial and critical examination. In this Article, Professor Johnson takes a close look at this neglected area. She first sets forth a large body of social science research that reveals a widespread tendency among whites to convict black defendants in instances in which white defendants would be acquitted. Next, she argues that none of the existing techniques for eliminating the influence of racial bias on criminal trials adequately protects minority-race defendants. She contends that this will remain so even if the prosecution-oriented rules of Swain v. Alabama (peremptory challenges) and Ristaino v. Ross (voir dire) are modified or overruled in cases currently before the Supreme Court. Finally, Professor Johnson details an equal protection argument that turns on accepting the social science data as proof of purposeful discrimination, and she proposes a prophylactic remedy.

Ethics, advertising and the definition of a profession.

Abstract: In the climate of concern about high medical costs, the relationship between the trade and professional aspects of medical practice is receiving close scrutiny. In the United Kingdom there is talk of increasing privatisation of health services, and in the United States the Federal Trade Commission (FTC) has attempted to define medicine as a trade for the purposes of commercial regulation. The Supreme Court recently upheld the FTC charge that the American Medical Association (AMA) has been in restraint of trade because of ethical strictures against advertising. The concept of profession, as it has been analyzed in sociological, legal, philosophical, and historical perspectives, reveals the importance of an ethic of service as well as technical expertise as defining characteristics of professions. It is suggested that the medical profession should pay more attention to its service ideal at this time when doctors are widely perceived to be technically preoccupied.

State Courts and Protective Legislation during the Progressive Era: A Reevaluation

Abstract: For a number of years, courts during the Progressive Era have been characterized as enemies of reform. Judges, according to that view, read their own conservative biases into law in order to nullify child labor legislation, efforts to establish maximum hours, minimum wages, and workmen's compensation, and revisions of traditional rules governing employer liability in job-related accidents. Theodore Roosevelt, Gilbert Roe, Roscoe Pound, and others were only a few voices in the chorus that condemned courts for their allegedly reactionary attitudes toward social legislation. Louis D. Brandeis, for example, on the eve of his nomination to the United States Supreme Court, charged judges with being blind to the great social and economic changes of the past halfcentury and with erecting their own prejudices into legal barriers to reform. ' Recent studies of the United States Supreme Court have led to a revision of that institution's image as a thoroughgoing enemy of reform. Despite its decisions in such cases as Lochner v. New York, Adair v. United States, and Coppage v. Kansas, which have often been portrayed as epitomizing its opposition to protective legislation, the Court in fact upheld the vast majority of protective statutes it reviewed.2 A similar analysis needs to be done for state courts,

Supreme Court Justice Joseph Story: Statesman of the Old Republic

Abstract: The primary founder and guiding spirit of the Harvard Law School and the most prolific publicist of the nineteenth century, Story served as a member of the U.S. Supreme Court from 1811 to 1845. His attitudes and goals as lawyer, politician, judge, and legal educator were founded on the republican values generated by the American Revolution. Story's greatest objective was to fashion a national jurisprudence that would carry the American people into the modern age without losing those values.

The political economy of agricultural research and extension: grants, votes, and reapportionment

Abstract: This paper seeks to identify the economic and political factors that produce state financial support for agricultural research and extension. State demand for research and extension services is found to be influenced not only by the level of farm income and population but also by measures of intergovernmental influence and the political effectiveness of farmers. Federal grants have "price" effects which stimulate state spending; the reapportionment of state legislatures mandated by the U.S. Supreme Court had a negative effect, while the ability of farmers to elect other farmers to the legislature increases state support for research and extension.

Measuring Change on the Supreme Court: Examining Alternative Models*

Abstract: Constitutional interpretation is clearly a dynamic process. Understanding the Warren Court's decisions may not be sufficient in trying to explain the Burger Court's. Previous quantitative attempts to examine how judges or courts have changed, however, have one crucial shortcoming: they fail to control for the nature of the cases being decided. By employing a fact model of search and seizure decision making, Warren and Burger Court cases were analyzed to determine the dynamics of the Burger Court's conservatism. Using probit analysis to test various predisposition and variable change models, it was determined that the model which assumed that each Nixon/Ford appointment added similarly to the Burger Court's conservatism worked best. Furthermore, it was concluded that the change seemed to be in the Court's predisposition to find searches reasonable, rather than in its treatment of particular facts.

The Constitution in the Supreme Court: The First Hundred Years, 1789-1888

Abstract: A synthesis of legal analysis and narrative history that evaluates the Supreme Court's first hundred years.

Defining Appropriate Medical Care: Providing Nutrients and Hydration for the Dying

Abstract: The New Jersey Supreme Court first attained national prominence in medicolegal issues of obligations to critically ill patients in the Karen Ann Quinlan case. The high court in New Jersey issued an eminently sensible opinion in that case, allowing the patient's guardian, her father, to use his discretion in removal of life support from his daughter, who was then irreversibly comatose.1 The court directed that in future cases, the attending physician and the family be advised in such matters by a hospital-based ethics or prognosis committee, which could avoid a case-by-case judicial review. It was expected that the patient would . . .

The Supreme Court of Canada: History of the Institution

Abstract: Unknown and uncelebrated by the public, overshadowed and frequently overruled by the Privy Council, the Supreme Court of Canada before 1949 occupied a rather humble place in Canadian jurisprudence as an intermediate court of appeal. Today its name more accurately reflects its function: it is the court of ultimate appeal and the arbiter of Canada's constitutional questions. Appointment to its bench is the highest achievement to which a member of the legal profession can aspire. This history traces the development of the Supreme Court of Canada from its establishment in the earliest days following Confederation, through its attainment of independence from the Judicial Committee of the Privy Council in 1949, to the adoption of the Constitution Act, 1982. The authors describe the politics of the judicial apopintments and document the internal struggles and tensions between the justices. Central to the story is the attitude of successive federal governments to the need for a strong and intellectually vibrant court. Not all prime ministers and ministers of justice took an interest in the Court, and some of their appointments were of less than outstanding quality. Only in recent times have appointments been of consistently high calibre. Until 1982 the Supreme Court of Canada played a minor role in the history of the Canadian political structure. The Charter of Rights and Freedoms has thrust new responsibilities on the Court, and as those responsibilities are increasingly exercised in the years ahead the Court will become a major participant in our national life. This book explores the foundations on which that participation will be built.

The abortion funding conundrum: inalienable rights, affirmative duties, and the dilemma of dependence.

Abstract: In the American Constitutional system rights tend to be individual alienable and negative--such rights belong to persons as individuals; they are subject to alienation by those persons; and they impose on the government a duty to refrain from certain injurious actions. The right of a woman to terminate her pregnancy sheds light on these 3 areas. Although a womans right to terminate a pregnancy was recognized in Roe v. Wade by failing to make abortion free of charge the government requires women to make affirmative use of their bodies for childbearing. In Harris v. McRae the Supreme Court indicated that the government is free to leave poor women to finance abortions without public assistance. A simultaneous decision was made to provide governmental funding for the necessary medical expenses involved in childbirth. Justice Brennan described this as a "deliberate effort to discourage the exercise of a constitutionally protected right." As a result women are forced to sacrifice their liberty and their labor. It is difficult to justify the governments decision not to fund impecunious womens choice of abortion if the right to terminate an unwanted pregnancy is viewed as an inalienable right. The governments affirmative duties are arguably owed to the fetus who can be considered a holder of 5th and 14th amendment rights. Any such right to life cannot be deemed alienable by the unborn. This suggests that the government bears an affirmative duty to protect the interests of the fetus to the extent that it may do so without coercing involuntary pregnancy.

The Supreme Court in Periods of Critical Realignment

Abstract: The Supreme Court played a major role in the process of critical realignment in all three periods studied (the 1850s, 1890s, 1930s). At a key moment in the developing realignment crisis, the Court was "captured" by its conservative wing and struck down an important piece of moderate legislation. By making centrist positions untenable, the Court facilitated the takeover of the major parties by their extremist factions. In two of the three periods, in turn, the Court found itself at the center of intense controversy and criticism.

Rules and Rhetoric

Abstract: Mr. McLeod argues that the role of rules in judicial decision-making is commonly misunderstood by both the formalists and realists. The rehabilitation of rhetoric in fields of study outside law suggests a novel and useful insight for jurisprudence: judges neither mechanically apply legal 'commands' nor exercise arbitrary, subjective preferences. They engage in a process of argumentation structured by the 'wishes' of statute and precedent, and directed towards persuasion of their anticipated audiences. Mr. McLeod offers the reasons of the Supreme Court of Canada in Hunter v. Southam Press as an example of rhetorically structured argument. The Court was required to interpret the new Canadian Charter of Rights and Freedoms section 8 which prohibits "unreasonable search or seizure". He argues that though the Court could not define 'unreasonable' with reference to any prior fixed rules, it was not compelled to exercise arbitrary and subjective preferences. The decision is best understood when analyzed in light of the Court's rhetorical obligations. This article is available in Osgoode Hall Law Journal: http://digitalcommons.osgoode.yorku.ca/ohlj/vol23/iss2/4

Detrebling Antitrust Damages

Abstract: FROM 1890 until 1972 it was easy for courts to compute damages in antitrust cases. Once the plaintiff showed the "fact" of injury, the court would indulge all reasonable inferences in that party's favor when computing the "quantum" of injury. All loss proximately caused by the violation would be found, trebled, and awarded to the plaintiff, with attorneys' fees as a bonus. All this seemed natural. After all, the statute says that "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws ... shall recover three-fold the damages by him sustained, and the cost of suit, including a reasonable attorney's fee." Yet in other parts of the law courts routinely decline to equate plaintiffs' actual losses with the amount recoverable as damages. They use the specification of damages to achieve substantive goals. For example, in the law of contracts the courts rarely award the injured party full consequential damages. If the person who contracted for a machine loses profits while delays in delivery idle the rest of his plant, that is too bad. The plaintiff in such a case recovers only the difference between the agreed-on price and the actual cost of obtaining a similar item from another supplier. The rules of damages in contract law as a group serve important functions in creating incentives to prepare for transactions, make, and breach contracts when it is optimal to do so; damages supplement inevitably incomplete contracts.2 In 1972 the Supreme Court began to fit antitrust damages to substantive ends. It held that Hawaii could not recover for diminished taxes and injury to its economy caused by what it assumed to be a cartel of oil

Governmental Litigants, Underdogs, and Civil Liberties in the Supreme Court: 1903-1968 Terms

Abstract: From an assortment of partial theories found in the literature, it was hypothesized that governmental litigants were more likely than nongovernmental litigants to be favored in cases decided by the United States Supreme Court. This proposition was tested for state and federal governments in civil liberty cases involving "underdogs" in the Court's 1903-1968 terms. The hypothesis was not supported for state and federal governments separately or for state, local, and federal governments collectively. A significant trend toward less support for governmental litigants between 1903 and 1968 was noted. The negative slope of the trend for state government was significantly more pronounced than the negative slope for federal government.

The Fairness Doctrine Today: A Constitutional Curiosity and an Impossible Dream

Abstract: Immediately following the Supreme Court's opinion in Red Lion Broadcasting Co. v. FCC,' which sustained the constitutionality of the Federal Communications Commission's (FCC) Fairness Doctrine,2 a flurry of articles appeared describing how to apply the doctrine vigorously to new and different situations.3 Subsequently, especially after the Court's decision in CBS v. Democratic National Committee4 curtailed access possibilities, and Miami Herald Publishing Co. v. Tornillo 5 refused to sustain right to reply laws for candidates attacked by the print media, most discussions of the Fairness Doctrine have addressed its constitu-

Prayer in Public Schools: When Church and State Collide

Abstract: Prayer and Bible reading in public schools have led to three major Supreme Court decisions and the introduction of numerous constitutional amendments in the U.S. Congress which would permit voluntary prayer in public schools or limit federal court jurisdiction. Public opinion polls beginning in 1964 have suggested widespread support among the American public for prayer in public schools. Little is known, however, concerning the characteristics of those supporting and opposing prayer in public schools. This article addresses the school prayer issue through an analysis of three national surveys which were conducted in 1974, 1980, and 1982. Those favoring school prayer were found to be older, less educated, and socially, politically, and religiously conservative. Multivariate analysis revealed that the key predictor variables were religious orthodoxy and religious salience, a finding which may stem from the observation that school prayer is both a political and a religious issue. Issue salience, congressional voting decisions, and demographic characteristics of school prayer advocates are considered as possible explanations for the failure of Congress to act in accord with public opinion. Kirk W. Elifson is Associate Professor in the Department of Sociology, Georgia State University, Atlanta, Georgia. C. Kirk Hadaway is Research Director, Center for Urban Church Studies, Nashville, Tennessee. The authors wish to thank Jim Garand, John Hutcheson, and G. Melton Mobley for their helpful comments on earlier drafts. Public Opinion Quarterly Vol 49 317-329 0 by the Trustees of Columbia University Published by Elsevier Scicnce Publishing Co . Inc 0033-362X/85/0049-317/$2 5() This content downloaded from 157.55.39.127 on Tue, 28 Jun 2016 05:29:14 UTC All use subject to http://about.jstor.org/terms 318 KIRK W. ELIFSON AND C. KIRK HADAWAY analysis of empirical data from three national surveys which assessed respondents' views on prayer in the public schools. Religion in State-Supported Schools Ironically, the first schools in the United States were religious and not secular. By the beginning of the Revolutionary War, state churches had been established in a majority of the colonies; not until the 1830s were serious objections offered to Bible reading in the schools. The immigration of large numbers of Roman Catholics to the East Coast in the early nineteenth century followed later by Jews and other religious minorities resulted in the first serious protests concerning religion in the schools. Most states forbade the use of public funds for church schools by the 1870s (Stokes and Pfeffer, 1964). Religion in the form of Bible reading, devotional exercises, and prayer remained an integral part of many school systems until 1960. At this point three Supreme Court decisions that dealt with prayer in public schools were rendered within a period of one year. All centered upon one sentence in the First Amendment to the United States Constitution which simultaneously guaranteed government neutrality toward religion (the "Establishment" clause) and the right to freely practice religion (the "Free Exercise" clause).2 The three cases upon which the current controversy rests include Engel v. Vitale (1962), which tested the constitutionality of a daily school prayer written by the New York State Board of Regents,3 and Abington School District v. Schempp (1963), which questioned a Pennsylvania law requiring the reading of 10 Bible verses without comment to begin the school day. The third case, Murray v. Curlett (1963), which was decided by the Schempp case, challenged the practice of Bible reading and recitation of the Lord's prayer in the Baltimore schools. In all three instances, the Court ruled the activities unconstitutional, and the effect was to remove legal expressions of organized prayer and Bible reading from the public school. Religion and Politics The question of why people oppose decisions made by the Supreme Court concerning school prayer can be seen as both political and religious. It is political in the sense that the issue concerns public policy enforced by the state, and it is religious in that it concerns the expression 2 "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thercof." (U.S. Constitution, Amendment I). 3"Almighty God, we acknowledgc our dependence upon Thee and we beg Thy blessings upon us, our parents. our teachers and our country." This content downloaded from 157.55.39.127 on Tue, 28 Jun 2016 05:29:14 UTC All use subject to http://about.jstor.org/terms PRAYER IN PUBLIC SCHOOLS 319 of a religious belief or feeling. Political scientists generally view the role of religion vis-a-vis politics as minimal (Lane, 1959), yet in this case the two are so intertwined that an association would seem almost axiomatic. Our expectation, therefore, is that personal religiosity should have a relationship with attitudes about returning prayer to the school which is stronger than the "minimal" association which might otherwise be anticipated when investigating religion and politics. It is also necessary when considering this issue to look at various motivations which may work in concert with or in opposition to religiosity. With such a large number of persons approving the return of prayer to the public schools, it is clear that people with a wide variety of social characteristics share this attitude.4 Thus, while no isolated, peculiarly distinctive subgroup favoring prayer in schools exists, certain social characteristics which predispose many individuals towards acceptance of school prayer can be illuminated. The first clue comes from those who are most vocal in pushing for constitutional amendments: southern evangelicals, a group who Perkins et al. (1983) report favor allowing prayer in public schools by a margin of 94 to 6 percent. Accordingly, social and political conservatism, region of residence, and denominational affiliation are key variables. Finally, persons who are generally less tolerant, are tradition oriented, or are localistic and parochial in world views are expected to oppose recent Supreme Court decisions concerning school prayer. Objectives and Methods This investigation seeks to develop a profile of those who favor and oppose prayer in public schools. We also wish to establish the relative importance of three variable clusters in predicting one's orientation toward this issue. Attitudinal, demographic, and religious variables are simultaneously used as predictors with discriminant function analysis. Broad religious groupings which reflect ideological differences are used as control categories to specify further the relative importance of the predictor variables within contrasting theological contexts.

Quality and Cost Comparisons of Private Bar Indigent Defense Systems: Contract vs. Ordered Assigned Counsel

Abstract: The Supreme Court decisions of Powell v. Alabama,' Gideon v. Wainwright2 and Argersinger v. Hamlin3 have had tremendous impact on the operation of the state criminal courts. These decisions have forced jurisdictions to broaden the right to counsel during adjudication and to establish some systematic organization for providing representation for indigent defendants. Other Supreme Court rulings have extended the right to counsel for indigents in arraignment4 and sentencing hearings.5 A number of studies have explored the quality of defense provided by various types of indigent defense systems. The majority of this research has compared the consequences of defense by a public defender with those of defense provided by privately retained counsel. Often research has concluded that private counsel obtain superior outcomes for the defendant.6 Joyce Sterling notes, however,

The Penetration of Social Science into Legal Culture

Abstract: Over the past 75 years, social science references in court decisions have changed from an anonymous footnote to an appendix to a brief (Muller v. Oregon, 1908) to extensive discussion of social science methods and results to changing a rule of law based on social science propositions (Hovey v. Superior Court, 1980). The acceptance of social science may be traced in state court decisions as well as in Supreme Court cases. The academic field of law has, since its entrance into the university, identified itself with the rhetoric, if not the model of science. Although earlier attempts to introduce social science into law were relatively unsuccessful, there is now a sufficient acceptance and a sufficient professional infrastructure to predict a growing influence of social science in law.

'Other Non-Whites' in American Legal History: A Review of Justice at War

Abstract: This article reviews Peter Irons’ book on the World War II Japanese-American internment camps, Justice at War. Professor Gotanda views Irons’ analysis of the internment camps as unsatisfying primarily because Irons did not give greater historical context to the internment camps. Professor Gotanda traces the treatment of “Other non-Whites” in American history and the emphasis on their “foreignness” to explain how the internment camps could have happened.