Showing papers on "Supreme court published in 1995"

Ideological Values and the Votes of U.S. Supreme Court Justices Revisited

Abstract: Segal and Cover (1989) analyzed the content of newspaper editorials to devise measures of the ideological values of the justices of the U.S. Supreme Court. Because their measures came from sources independent of the judicial vote, scholars have widely adopted them. This note updates, backdates, and extends the Segal and Cover research by adding the two Bush appointees and the seven Roosevelt and four Truman nominees whose service extended beyond the start of the Vinson Court. While we find that the ideological values of the Eisenhower through Bush appointees correlate strongly with votes cast in economic and civil liberties cases, the results are less robust for justices appointed by Roosevelt and Truman.

Status, ideology, and integrative complexity on the U.S. Supreme Court: Rethinking the politics of political decision making.

Abstract: Prior studies of integrative complexity indicate that political conservatives tend to interpret policy issues in less complex ways than do liberals and moderates. However, ideological preference in that work was systematically confounded with decision makers' status in the groups to which they belonged. The study reported here varied both factors independently in a content analysis of Supreme Court opinions. In contrast to previous conclusions, results supported a status-contingency model, which predicts higher levels of complexity among members of majority factions than among members of either minority factions or unanimous groups independently of the ideological content of their views

Repeat Players in the Supreme Court: The Role of Experienced Lawyers in Litigation Success

Abstract: How important are lawyers in the decision making of the U.S. Supreme Court? Although legal expertise has long been assumed to benefit certain litigants, the frequency with which lawyers appear before the Court has not been directly measured. In this article, I argue that, quite apart from the status of different litigants, lawyers can be viewed as repeat players who affect judicial outcomes. Using data from the U.S. Supreme Court Judicial Data Base with data from the United States Reports, I propose and test a theory in which the informational needs of the Court are better met by more credible litigators. Thus, for example, a more experienced lawyer significantly raises the probability of a party's success. The findings testify to the efficacy of experienced counsel, irrespective of the parties they represent.

Forced Justice: School Desegregation and the Law

Abstract: School desegregation and "forced" busing first brought people to the barricades during the 1960s and 1970s, and the idea continues to spark controversy today whenever it is proposed. A quiet rage smolders in hundreds of public school systems, where court- ordered busing plans have been in place for over twenty years. Intended to remedy the social and educational disadvantages of minorities, desegregation policy has not produced any appreciable educational gains, while its political and social costs have been considerable. Now, on the fortieth anniversary of the Supreme Court's epic decision, Brown v. Board of Education, the legal and social justifications for school desegregation are ripe for reexamination. In Forced Justice, David J. Armor explores the benefits and drawbacks of voluntary and involuntary desegregation plans, especially those in communities with "magnet" schools. He finds that voluntary plans, which let parents decide which school program is best for their children, are just as effective in attaining long-term desegregation as mandatory busing, and that these plans generate far greater community support. Armor concludes by proposing a new policy of "equity" choice, which draws upon the best features of both the desegregation and choice movements. This policy promises both improved desegregation and greater educational choices for all, especially for the disadvantaged minority children in urban systems who now have the fewest educational choices. The debate over desegregation policy and its many consequences needs to move beyond academic journals and courtrooms to a larger audience. In addition to educators and policymakers, Forced Justice will be an important book for social scientists, attorneys and specialists in civil rights issues, and all persons concerned about the state of public education.

Did serrano cause a decline in school spending

Abstract: Compared to the national aver- age, California's public school spending per pupil fell by 23 percent from 1970 to 1990. We find that about half of the de- cline can be attributed to Serrano v. Priest, the 1971 California Supreme Court ruling that required equal spending per pupil across school districts in the state. The remainder can be attributed to the rapid enrollment growth in California during the 1980s.

Commentaries on the issue: A policy perspective

Abstract: On July 29, 1994, Jesse Temmendequas invited seven-year-old Megan Kanka into his home to see his puppy. Once inside, Timmendequas forced Megan into his room, strangled her with a belt, and sexually assaulted her. She died from asphyxiation. Only after Megan's death did authorities reveal that Timmendequas had two previous convictions for child sexual abuse. Timmendequas had been sentenced to ten years at the Adult Diagnostic and Treatment Center, known as Avenel. With time off for good behavior, Timmendequas was released after serving only six years. At the time of Megan's murder, Timmendequas lived across the street from the Kankas with two other convicted sex offenders whom he had met at Avenel. The outrage of community members that convicted sex offenders could live anonymously in their communities led to the passage of "Megan's Law" in New Jersey. In 1990, Washington State enacted its Community Protection Act(1) after a seven-year-old Tacoma boy was lured into a wooded area by a recently released sex offender who orally and anally raped the boy and then cut off his penis. The man had a twenty-four-year record of assaults on young people, including the kidnapping and assault of two teenage girls and involvement in the murder of a fifteen-year-old schoolmate.(2) Registration of sex offenders with police is relatively unproblematic.(3) It is Community notification that has sparked the greatest controversy. In arguments before New Jersey's Supreme Court, lawyers opposed to Megan's Law criticized the law as stigmatizing and humiliating for offenders. They also said it was punitive, increasing the punishment to which offenders had originallly been sentenced, and was therefore unconstitutional.(4) In addition, they said that the law was an invasive measure that infringed the privacy and liberties of convicted sex offenders who had supposedly paid their debt to society. Other commentators point out that the stigma attached to sex offenders by society, and reinforced by notification laws, interferes with their ability to find jobs and places to live and to resume a normal life. Whatever the merit of these objections as a matter of law--an issue I leave to those with legal backgrounds--they do not have much moral force. As Megan's mother, Maureen Kanka, expressed it, "I have a dead little girl. How can they sit there and worry about if it's punishment? What about our kids? That's ultimately what it comes down to. Our kids have rights and it's time someone started addressing them."(5) It seems to me that Mrs. Kanka has framed the issue correctly. When a little boy has been raped and had his penis cut off, or when a little girl has been raped and murdered, worry about humiliating the people who committed these crimes seems a little overly sensitive. I start then with the assumption that the paramount issue is the protection of children, that their rights to be safe from violent sexual assault certainly outweigh the rights of sexual predators not to be stigmatized. The trouble is that notification laws will not protect children. They are at best ineffective and at worst create a false sense of security that may actually expose children to risk. In addition, there is the danger of vigilantism that risks harming innocent bystanders and is contrary to the rule of law even when directed at the guilty. First, Megan's Law focuses on a tiny percentage of those who commit sexual crimes against children, namely, dangerous strangers. Between seventy-five and eighty-nine percent of child sexual abuse is committed by relatives and friends.(6) Yet Megan's Law explicitly targets for community notification sexual predators whose "sexual preference is for minor children outside his or her immediate family."(7) Thus, it fails to protect children from the most common kind of sexual abuse, that inflicted by friends and relatives. Indeed, such laws may "promote a false sense of security, lulling parents and kids into the big-bad-man mindset when many molesters are in fact trusted authority figures or family members. …

Supreme Court Justices as Strategic Decision Makers: Aggressive Grants and Defensive Denials on the Vinson Court

Abstract: We examine strategic certiorari voting among the justices of the Vinson Court, ie, the extent to which justices consider the relative likelihood of winning on the merits when deciding to grant or deny review We find strong evidence that justices who wish to affirm carefully consider probable outcomes, but find no evidence that justices who wish to reverse do so In Perry's (1991) terms, we find that the justices engage in aggressive grants but do not engage in defensive denials

The Four Doctrines of Self-Executing Treaties

Abstract: A distinction has become entrenched in United States law between treaties that are “self-executing” and those that are not. The precise nature of this distinction—indeed, its very existence—is a matter of some controversy’ and much confusion. More than one lower federal court has pronounced the distinction to be the “most confounding” in the United States law of treaties. A tremendous amount of scholarship has sought to clarify this distinction, but the honest observer cannot but agree with John Jackson’s observation that “[t]he substantial volume of scholarly writing on this issue has not yet resolved the confusion” surrounding it. The continuing, and remarkably candid, judicial confusion over this issue will, I hope, excuse yet another attempt to bring some coherence to the doctrine. In this article, I argue that much of the doctrinal disarray and judicial confusion is attributable to the failure of courts and commentators to recognize that for some time four distinct “doctrines” of self-executing treaties have been masquerading as one. With a view to furthering the development of doctrine in conformity with constitutional allocations of power, I identify these four “doctrines,” as reflected in the self-execution decisions of the Supreme Court and the lower federal courts, and I examine the very different types of analysis that they call for.

The Selling of Supreme Court Nominees

Abstract: Politics has always been at the heart of the Supreme Court selection process. According to John Anthony Maltese, the first "Borking" of a nominee came in 1795 with the defeat of John Rutledge's nomination as chief justice. What is different about today's appointment process, he argues, is not its politicization but the range of players involved and the political techniques that they use. In this text, Maltese traces the evolution of the contentious and controversial confirmation process awaiting today's nominees to the nation's highest court. His story begins in the second half of the 19th century, when social and technological changes led to the rise of organized interest groups. Despite occasional victories, Maltese explains, structural factors limited the influence of such groups well into this century. Until 1913, senators were not popularly elected but chosen by state legislatures, undermining the potent threat of electoral retaliation that interest groups now enjoy. And until Senate rules changed in 1929, consideration of Supreme Court nominees took place in almost absolute secrecy. Floor debates and the final Senate vote usually took place in executive session. Even if interest groups could retaliate against senators, they often did not know whom to retaliate against. With these structural impediments removed, Maltese explains, the process was dramatically transformed. Senators suddenly found themselves accountable to a broader constituency. Public opinion now mattered in a very direct way, and public hearings became occasions for senators to both assess and influence public sentiment on nominees. At the same time, presidents had become more active as policy leaders dramatically expanding the White House staff and attempting to influence judicial decision-making through their court appointments. Staff units took on the tasks of screening potential nominees and mustering support for them. As a result of these changes, today's confirmation battles are public affairs open to a broad range of players who engage in overt lobbying, advertizing campaigns, public appeals and the use of focus groups and public opinion polls to fashion their messages. Televized hearings become forums for emotional debates on the issues of the day - abortion, race, sexual harassment. Maltese ends with a discussion of the recent nomination of Stephen Breyer, addressing various reform proposals made by critics of the current process.

The supreme court and opinion change: An Experimental Study of the Court's Ability to Change Opinion

Abstract: In this study the author examines the extent to which the Supreme Court acts as an opinion leader through its ability to induce attitude change. The author employs an experimental design with liberal and conservative rulings on one economic and one civil liberties issue, comparing the influence of the Supreme Court, Congress, and a nonpartisan think tank as sources of policies. The design was chosen in an attempt to eliminate outside sources of influence and to determine better the Supreme Court's ability to cause change in opinion. The results demonstrate that under some circumstances the Court can indeed influence opinion in the direction of its rulings, especially for those who regard the Court positively.

The influence of prior record evidence on juror decision making

Abstract: Several researchers have investigated the impact of evidence of prior convictions on jurors' decision making. Very little is known about a related issue, the impact of prioracquittal evidence introduced by the prosecution on jurors' decisions. The Supreme Court recently held (Dowling v. U.S., 1990) that the admission of prior acquittal evidence does not unfairly prejudice the defendant. We conducted a simulation study to examine the effects of prior record evidence (prior convictions, prior acquittals, and no prior record) on jurors' decisions. We also manipulated the presence of judicial instructions on the limited use jurors can make of extrinsic acts evidence. Mock jurors were more likely to convict the defendant when they had evidence of a prior conviction than when they had evidence of a prior acquittal or no record evidence. This effect was mediated by attributions about criminal propensity. Judge's limiting instructions were ineffective in guiding jurors' use of prior record evidence.

What Should We Call People? Race, Class, and the Census for 2000.

Abstract: THE IMPENDING debate over the definition of race to be used in the U.S. Census for the year 2000 could be the most divisive debate over racial issues since the I Mos. Moreover, the subject is of great importance to education at all lev@ els. In this article I will attempt to explain the problem, review its history, and ex@ amine the options for the future. Who Defines Race? In the U.S. the answer to this question is crystal clear@ the Office of Management and Budget TOMB J, reporting to the House Committee on Post Office and Civil Service, Subcommittee on Census, Statistics, and Postal Personnel. While this subcommittee does not represent the most desirable political plum in the Congress, it has been at the center of a swirling debate on the nature of racial designations, as seen in hearings that began in 1993 and continued into 1994, though they were virtually ignored by the news media. Since 1977 the racial/ethnic categories that can be used on all federal forms have come from OMB Statistical Directive 15, which allows only four racial groups, designated by the following headings American Indian/Alaskan Native, Asian/pacific Islander, Black, and White. Ethnicity is broken down into Hispanic and non-hispanic. These are the categories that are used on application forms for jobs, on school enrollment forms, on mortgage applications, and on college scholarship and loan applications. They are also the boxes we must check (choosing only one) on the U.S. Census form. The govenment does not gather information of this kind just out of idle curiosity, these categories are used by federal agencies to search for job discrimination and segregated schools and to give out large chunks of federal aid. There could be other ramifications as well. For exam@ ple, it was clear that the suggestion in late IN@ that Hawaiians be classified not as Asian/pacific Islanders but as Native Americans was made at least in part to al@ low Hawaiians to operate gambling casi@ nos, a right currently reserved only for Na@ tive Americans. A Short History of Racial Classification in the U.S. The Constitution requires that a census be conducted every 10 years in order to revise the structure of the House of Representatives so that it reflects the real population one of the more radical political ideas ever implemented. Since the original U. S. Census of 1790, which was supervised by Thomas Jefferson, virtually every Census has defined race differently. The first one allowed for free white males, free white females, other persons (including free blacks and "taxable Indians") and slaves.[2] Even in 1790 it was clear that many slaves bad lighter skins than their masters, making a division between black and mulatto seem logical. But mulattos were needed in the slave pool. In order to increase the size of the slave population, the"one drop of blood,, rule appeared. That is, even one drop of black blood,,defined a person as black and meant thai any child of a slave and a slave owner would be considered eligible for slavery. Over time, this rule enlarged the slave pool considerably. (The issue of whether one drop of white blood defined you as white apparently never came up. The "one drop" rule has never been applied to Asians or Hispanics, but it was affirmed as the law of the land by the U.S. Supreme Court as late as 1986.[3] In our time, the 1960 Census allowed only two categories: white or nonwhite. In 1970 we could be white, black, or "other," but by 1990 we had the four racial/ethnic categories established by OMB Statistical Directive 15, with 13 choices within the "Asian" group, ranging from Chinese to Thai, and with ethnicity broken into Hispanic subcategories for Mexican, Puerto Rican, Cuban, and other. Through most of our history, we believed that "black blood" was a reality, although today we know that there are four major human blood types - A, B, O, and AB - that are distributed across all racial categories. …

The Second Amendment : Toward an Afro-Americanist Reconsideration

Abstract: Many of the issues surrounding the Second Amendment debate are raised in particularly sharp relief from the perspective of African-American history. With the exception of Native Americans, no people in American history have been more influenced by violence than blacks. Private and public violence maintained slavery. The nation's most destructive conflict ended the "peculiar institution." That all too brief experiment in racial egalitarianism, Reconstruction, was ended by private violence and abetted by Supreme Court sanction Jim Crow was sustained by private violence, often with public assistance. If today the memories of past interracial violence are beginning to fade, they are being quickly replaced by the frightening phenomenon of black-on-black violence, making life all too precarious for poor blacks in inner city neighborhoods. Questions raised by the Second Amendment, particularly those concerning self-defense, crime, participation in the security of the community, and the wisdom or utility of relying exclusively on the state for protection, thus take on a peculiar urgency in light of the modern Afro-American experience.

An Empirical Test of the Rational Actor Theory of Litigation

Abstract: This article examines the decisions of litigants in criminal cases to appeal decisions from the U.S. Courts of Appeals to the U.S. Supreme Court. Using a random sample of search and seizure cases from 1962 through 1990 and a measure of the likelihood that the appeals court decision will be reversed if cert is granted, we demonstrate that litigants behave as if they rationally consider costs and benefits in their decisions to appeal. Given the extraordinary number of cases decided by lower federal courts vis-a-vis the number of cases the Supreme Court can decide, we argue that such behavior is necessary if the Supreme Court is to retain control over the federal judiciary.

Reading, Writing, and Race: The Desegregation of the Charlotte Schools

Abstract: Using Charlotte, North Carolina, as a case study of the dynamics of racial change in the 'moderate' South, Davison Douglas analyzes the desegregation of the city's public schools from the Supreme Court's 1954 Brown v. Board of Education decision through the early 1970s, when the city embarked upon the most ambitious school busing plan in the nation. In charting the path of racial change, Douglas considers the relative efficacy of the black community's use of public demonstrations and litigation to force desegregation. He also evaluates the role of the city's white business community, which was concerned with preserving Charlotte's image as a racially moderate city, in facilitating racial gains. Charlotte's white leadership, anxious to avoid economically damaging racial conflict, engaged in early but decidedly token integration in the late 1950s and early 1960s in response to the black community's public protest and litigation efforts. The insistence in the late 1960s on widespread busing, however, posed integration demands of an entirely different magnitude. As Douglas shows, the city's white leaders initially resisted the call for busing but eventually relented because they recognized the importance of a stable school system to the city's continued prosperity. |Using Charlotte, North Carolina, as a case study of the dynamics of racial change in the 'moderate' South, Davison Douglas analyzes the desegregation of the city's public schools from the Supreme Court's 1954 Brown v. Board of Education decision through the early 1970s, when the city embarked upon the most ambitious school busing plan in the nation.

Broken Promise: The Subversion of U.S. Labor Relations Policy, 1947-1994

Abstract: The Wagner Act of 1935 (later the Wagner-Taft-Hartley Act of 1947) was intended to democratize vast numbers of American workplaces: the federal government was to encourage worker organization and the substitution of collective bargaining for employers' unilateral determination of vital work-place matters. Yet this system of industrial democracy was never realized; the promise was broken. In this rare inside look at the process of government regulation over the last forty-five years, James A. Gross analyzes why the promise of the policy was never fulfilled. Gross looks at how the National Labor Relations Board's (NLRB) policy-making has been influenced by the President, the Congress, the Supreme Court, public opinion, resistance by organized employers, the political and economic strategies of organized labor, and the ideological dispositions of NLRB appointees. This book provides the historical perspective needed for a reevaluation of national labor policy. It delineates where we are now, how we got here, and what fundamental questions must be addressed if policy-makers are to make changes consistent with the underlying principles of democracy.

Issue Fluidity on the U.S. Supreme Court

Abstract: In making decisions on the merits, the members of the U.S. Supreme Court are often willing to provide authoritative answers to questions that have not been asked and to disregard issues that the parties have presented. What accounts for these forms of issue fluidity? Analyzing data from the 1988 term of the Court, we find that issue transformation is quite common, occurring in roughly half of the cases on the plenary agenda. We propose models of both issue discovery and issue suppression that, while successful in explaining how the justices select issues, suggest that these two forms of fluidity result from largely different influences.

Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom

Abstract: Ever since the Supreme Court began enforcing the First Amendment's religion clauses in the 1940s, courts and scholars have tried to distil the meaning of those clauses into a usable principle of religious freedom. In this highly original work, Smith criticizes the main positions in the debate and explains their misconceptions. He argues that efforts to find a principle of religious freedom in the "original meaning" are fruitless because the clauses were purely jurisdictional in nature: they were meant to place authority over questions of religion with the states, and nothing more. Contending that the perennial quest to distill religious freedom into a "principle," is futile, Smith advocates a fundamental reassessment of the premises upon which courts have proceeded in this area.

Ethical Issues in Death and Dying

Abstract: 1. THE DEFINITION OF DEATH. Introduction. The Emergence of a Brain-Oriented Definition: Defining Death: Medical, Legal and Ethical Issues in the Definition of Death, President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Guidelines for the Determination of Death, Report of the Medical Consultants on the Diagnosis of Death to the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Non-Brain Formulations: The Alternative to the Brain-based Definitions, President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Against the Stream: Comments on the Definition and Redefinition of Death, Hans Jonas. Establishing Criteria of Death. J. David Bleich. Controversies Surrounding the Definition: The "Higher Brain" Formulations, President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. The Impending Collapse of the Whole-Brain Definition of Death, Robert M. Veatch. In re T.A.C.P (Baby Theresa), Supreme Court of Florida. Brain Death, Religious Freedom, and Public Policy, Robert S. Olick. 2. TRUTHTELLING WITH DYING PATIENTS. Introduction. Survey Data: Changes in Physicians' Attitudes Toward Telling the Cancer Patient, Dennis H. Novack, Robin Plumer, Raymond L. Smith, Herbert Ochitill, Gary R. Morrow, and John M. Bennett. Arguments Grounded in Consequences: Truth and the Physician, Bernard C. Meyer. The Classification of Duties - Veracity, Henry Sidgwick. The Use of Truth and Falsehood in Medicine: An Experimental Study, Richard C. Cabot. Arguments Grounded in Duty: On the Supposed Right to Tell Lies From Benevolent Motives, Immanuel Kant. Truthfulness as a Prima Facie Duty, W. D. Ross. Examples of Mixed or Balancing Approaches: Telling the Truth, Jennifer Jackson. Truth in Our Intercourse with the Sick, Worthington Hooker. 3. SUICIDE. Introduction. The Definition of "Suicide": Defining Suicide, Manuel G. Velasquez. The Problem of Defining Suicide, Tom L. Beauchamp. Classical Problems in the Morality of Suicide: Whether It Is Lawful to Kill Oneself, St. Thomas Aquinas. Of Suicide, David Hume. The Prevention, Intervention, and Control of Suicide: Moral Problems of Suicide Intervention, Tom L. Beauchamp and James F. Childress. The Role of Law in Suicide Prevention: Beyond Civil Commitment-A Bystander Duty to Report Suicide Threats, Kate E. Bloch. Whose Life is it Anyway?, Joel Feinberg. Suicide Prevention and the Value of Human Life, Erwin Ringel. 4. PHYSICIAN-ASSISTED SUICIDE AND EUTHANASIA. Introduction. Problems in the Morality of Actions by Physicians: Death and Dignity: A Case of Individualized Decision Making, Timothy E. Quill. Distortion of the Healing Relationship, Edmund D. Pellegrino. A Case Against Dutch Euthanasia, Richard Fenigsen. Problems in Law and Public Policy: Medical Practice with Regard to Euthanasia and Related Medical Decisions in the Netherlands: The Remmelink Report, Ministry of Welfare, Health and Cultural Affairs, The Netherlands. Sue Rodriguez v. Attorney General of Canada and Attorney General of British Columbia, Supreme Court of Canada. People of the State of Michigan v. Jack Kevorkian, State of Michigan in the Circuit Court for the County of Oakland. The Oregon Death with Dignity Act. 5. FORGOING TREATMENT AND CAUSING DEATH. Introduction. Active and Passive Euthanasia: Active and Passive Euthanasia, James Rachels. Rachels on Active and Passive Euthanasia, Tom L. Beauchamp and James F. Childress. Intending and Causing Death: Cruzan v. Director, Missouri Dept. of Health, Justice Antonin Scalia, Concurring in United States Supreme Court. Deciding to Forego Life-Sustaining Treatment, President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research. Cause of Death?, Dan W. Brock. Intending to Kill and the Principle of Double Effect, Edmund D. Pellegrino. Patient Refusal of Hydration and Nutrition: An Alternative to Physician-Assisted Suicide or Voluntary Active Euthanasia, James L. Bernat, Bernard Gert, and R. Peter Mogielnicki. 6. DECISIONS TO FORGO TREATMENT INVOLVING (ONCE) COMPETENT PERSONS. Introduction. Decisions by Competent Adults: Bouvia v. Superior Court, California Court of Appeals, Second District. Conflicts between Patients' Wishes to Forgo Treatment and the Policies of Health Care Facilities, Steven H. Miles, Peter A. Singer, and Mark Siegler. State of Georgia v. McAfee, Supreme Court of Georgia. Helping Larry James McAfee Die, Nat Hentoff. The Medical Directive, Linda L. Emanuel and Ezekiel J. Emanuel. Trumping Advance Directives, Dan W. Brock. Decisions on Behalf of Formerly Competent Adults: Cruzan v. Director, Missouri Department of Health, United States Supreme Court. Life and Death Choices after Cruzan, Larry Gostin. Cruzan: No Rights Violated!, John A. Robertson. 7. DECISIONS TO FORGO TREATMENT INVOLVING NEVER-COMPETENT PERSONS. Introduction. Decisions on Behalf of Children: In the Matter of the Treatment and Care of Infant Doe, Circuit Court for the County of Monroe, State of Indiana. Child Abuse and Neglect Prevention and Treatment, U.S. Department of Health and Human Services, Office of Human Development Services. Treatment Decisions for Seriously Ill Newborns: Ethical Critique of Baby Doe Rule, American Medical Association, Council on Ethical and Judicial Affairs. Human Rights and the Omission or Cessation of Treatment for Infants, Amnon Goldworth. The Right to Die vs Death in the Best Interests of the Infant, Alan R. Fleischman. The Linares Affair, John D. Lantos, Steven H. Miles, and Christine K. Cassel. Decisions on Behalf of Adults: Superintendent of Belchertown State School v. Saikewicz, Supreme Judicial Court of Massachusetts, Hampshire. Deciding for Others: The Permanently Unconscious and the Severely and Permanently Demented, Allen E. Buchanan and Dan W. Brock. The "Small Beginnings" of Euthanasia: Examining the Erosion in Legal Prohibitions against Mercy-Killing, C. Everett Koop and Edward R. Grant. 8. FUTILE TREATMENT AND TERMINAL CARE. Introduction. The Concept of Futility: Who Defines Futility?, Stuart J. Youngner. Futility: A Concept in Search of a Definition, Ronald Cranford and Lawrence Gostin. The Case of Helga Wanglie: In re the Conservatorship of Helga M. Wanglie, State of Minnesota, District Court, Probate Court Division, County of Hennepin, Fourth Judicial District. Informed Demand for "Non-Beneficial" Medical Treatment, Steven H. Miles. The Case of Helga Wanglie: A New Kind of "Right to Die" Case, Marcia Angell. The Case of Baby K: In the Matter of Baby K, The Moral Debate: The Concept of Futility: Patients Do not Have a Right to Demand Medically Useless Treatment, James F. Drane and John L. Coulehan. Futile Care: Physicians Should Not Be Allowed to Refuse to Treat, Robert M. Veatch and Carol Mason Spicer. 9: SOCIAL REASONS FOR LIMITING TERMINAL CARE. Introduction. On Opening Case: When Is Patient Care Not Costworthy?, Dan W. Brock. The Economics of Terminal Care: New Do-not-Resuscitate Policies: A First Step in Cost Control, Donald J. Murphy and Thomas E. Finucane. Prognosis-Based Futility Guidelines: Does Anyone Win?, Joan M. Teno, et al., for the SUPPORT Investigators. Moral Reflection on the Economics of Terminal Care: Medical Care at the End of Life: The Interaction of Economics and Ethics, A. A. Scitovsky and A. M. Capron. Quality of Life and Resource Allocation, Michael Lockwood. Age and the Allocation of Resources: The Value of Life, John Harris. Limiting Health Care for the Old, Daniel Callahan. A Lifespan Approach to Health Care, Norman Daniels. How Age Should Matter: Justice as the Basis for Limiting Care to the Elderly, Robert M. Veatch.

Stare Indecisis: The Alteration of Precedent on the Supreme Court, 1946–1992

Abstract: Although the concept of precedent is basic to the operation of the legal system, there has not yet been a full-length empirical study of why US Supreme Court justices have chosen to alter precedent This book attempts to fill this gap by analyzing those decisions of the Vinson, Warren, and Burgers courts, as well as the first six terms of the Rehnquist Court - a span of 47 years (1946–1992) - which formally altered precedent The authors summarize previous studies of precedent and the Court, assess the conference voting of justices, and compile a list of overruling and overruled cases Additionally, the authors draw a distinction between personal and instituional stare decisis By using the attitudinal model of Supreme Court decision making, the authors find that it is the individual justices' ideologies which explain their voting behavior

Telecast Deregulation and Competitive Balance: Regarding NCAA Division I Football

Abstract: I Introduction The National Collegiate Athletic Association (NCAA) exerted complete control over college football telecasts from the early 1950s until 1984. The NCAA negotiated exclusive contracts with the television networks that, among other things, limited the number of appearances by any one member school over a specified time period, set the times at which games could be televised, and required the airing of a certain number of games involving non-football powers (e.g. teams from Division I-AA, II, and III). For instance, the last NCAA Television Plan allowed two networks, ABC and CBS, to air 14 exposures each annually. These exposures could be made up of a mixture of national and regional games, but each network had to telecast 82 different teams over a two-year period. The two networks together were required to show at least 115 different teams on television over the two years. The NCAA also set a maximum number of six appearances for any team during this period, with no more than four national appearances.(1) The NCAA acknowledged that its Television Plan "restrained trade" and was arguably a per se violation of the Sherman Act. Yet, the NCAA pointed out that professional sports had often been granted exemptions from prosecution when restrictive business practices were necessary to promote competitive balance.(2) The NCAA also asserted that an uncontrolled market for televised college football games would skew the distribution of television appearances toward the traditional football powers. Since television appearances are an aid in recruiting top athletes, such a skewed distribution of appearances would enable the powerful to become even more dominant, and doom the weak sister football teams to further weakness. The NCAA argued that competitive balance-relative equality of team playing strength-could only be preserved if it retained control over football telecasts, and was able to spread appearances among a wide variety of teams. Nevertheless, on June 27, 1984, the U.S. Supreme Court decided in the National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma and University of Georgia Athletic Association (468 US 85), that the 1982-1985 NCAA Football Television Plan violated the Sherman Antitrust Act. This ruling granted individual schools the property rights to college football telecasts-a right the schools have an option to sell or assign at their discretion. As schools, conferences and select organizations of schools began to negotiate their own television contracts, a large increase in the number of televised games ensued.(3) This paper presents an empirical analysis of competitive balance in NCAA Division I college football after the Supreme Court ruling.(4) The analysis differs from the previous empirical work in three ways. First, the study uses individual team winning percentages rather than highly aggregated data such as total revenue. Second, winning percentages are included for several years prior to and after the ruling. Third, the analysis is done at the conference or intra-league level which permits an examination of winning percentages derived from common year-to-year opponents. II Background Many, including the Supreme Court, argued that NCAA television restrictions hindered competitive balance, and that weaker teams would have a better chance to use television to attract players without NCAA control. Others, including the NCAA, predicted that the loss of NCAA jurisdiction over television appearances would diminish competitive balance. Pacey (1985) asserts that the NCAA had never protected competitive balance. Division I-AA, II, and III teams had received very spotty and intermittent coverage, with little competitive advantage derived from their television appearances. Even within Division I-A, there was not much evidence that the Television Plan protected competitive balance. The Supreme Court had found it hard to imagine that dissolution of the Television Plan could cause any more disparity than had already existed between the football programs of Ohio State University and Northwestern University. …

smugglers or samaritans in Tucson, Arizona: producing and contesting legal truth

Abstract: In 1985–86, 11 religious activists whose congregations had declared themselves sanctuaries for undocumented Salvadoran and Guatemalan refugees were tried in Tucson, Arizona, on alien-smuggling charges. Although 8 of the 11 were convicted and although the verdicts were upheld by the U.S. Supreme Court, the social and legal significance of the trial, and of the sanctuary movement itself, has continued to be negotiated by sanctuary activists. Examining the events that led to this trial, the trial itself, and the trial's aftermath sheds light on how legal truth is produced and contested both within and outside of courtrooms. [power, resistance, truth, sanctuary, prosecution, law]

Jury Service as Political Participation Akin to Voting

Abstract: The Supreme Court has grappled with the constitutional limits on discrimination in the jury selection process for over one hundred years, beginning with the decisions in 1879 involving state laws and practices that excluded blacks from sitting on juries altogether. In the last nine years alone, the Court has decided six significant cases concerning alleged racial discrimination in jury composition.The argument of this Article is that the link between jury service and other rights of political participation such as voting is an important part of our overall constitutional structure, spanning three centuries and eight amendments: the Fifth, Sixth, Seventh, Fourteenth, Fifteenth, Nineteenth, Twenty-Fourth, and Twenty-Sixth. One kind of group the Court has yet to protect against jury service discrimination is that defined by age, especially young adults. I argue that age-defined groups, like other groups protected by the Constitution against discrimination in voting, are essential participants in the jury process as well. In the end, the groups protected from discrimination in jury service should be the same groups protected from discrimination in voting, regardless of how these groups fare under Sixth Amendment or equal protection approaches.

Judicial Incentives and Indeterminacy in Substantive Review of Administrative Decisions

Abstract: It was not supposed to be like this. In Chevron and State Farm, the Supreme Court announced what appeared to be controlling standards for substantive review of administrative decisions. Chevron adopted a two-step approach to statutory interpretation under which courts were to overturn agency interpretations that were contrary to the clear intent of Congress, but defer to permissible agency constructions of a statute. State Farm indicated that an agency’s policy judgments should be analyzed according to a specific set of inquiries that focused on the agency’s reasoning process. Administrative law scholars, whether they agreed or disagreed with the Court’s standards, assumed that the two cases were landmark decisions that signaled a turning point in the substantive review of agency decisions. Instead, the Chevron framework has broken down, and State Farm has been all but ignored by agencies and the courts, including the Supreme Court.This article accounts for this breakdown by analyzing the impact of judicial incentives on substantive review in administrative law. Its centerpiece is a model of judicial behavior based on the “craft” and “outcome” components of judicial decisionmaking. Judges engage in the well-reasoned application of doctrine as a matter of craft, and they consider the implications of a result for the parties and society in general as a matter of outcome. When these components pull in opposite directions in a given case, our model suggests how judicial incentives influence the resolution of this tension. Our model of judicial behavior explains why Chevron and State Farm have not been as influential as commonly assumed. Judges have stronger incentives to control outcome and weaker incentives to develop determinate craft norms that limit pursuit of outcome in administrative law than in other areas of law. Because reliance on indeterminate craft norms enables judges to pursue outcome without sacrificing craft, judges have avoided applications of Chevron and State Farm that are determinate. Drawing on this model, we propose a modified approach to substantive judicial review that accounts for the way that judicial incentives influence substantive review doctrine. We recommend that Congress require courts to respond to a series of specific questions that would apply to substantive agency decisions. These questions would make it more difficult for judges to manipulate scope of review standards and would require more explicit reasons for affirming or reversing an agency decision.

The doctor-proxy relationship: the neglected connection.

Abstract: Advance directives have been lauded by scholars and supported by professional organizations, Congress, and the United States Supreme Court. Despite this encouragement, only a small number of capable patients execute living wills or appoint health care agents. When patients do empower proxies, doctors may be uncertain about the scope of their duties and obligations to these persons who, in theory, stand in the shoes of the patient. This article argues for a conscious focus on the ethical duties, emotional supports, and guidance owed by physicians to health care agents.

The Effect of the Charter of Rights on Canadian Federalism

Abstract: Canadian experience under the 1982 Charter of Rights contradicts the orthodox understanding ofjudicial review as a decentralizing institution that performs a checking or blockingfunction. Charter politics in Canada suggest that in a federal system, judicial review can also enhance values and policies favored by the national government at the expense of the constituent units. Rather than weakening the policy capabilities of the federal government, the Canadian Charter has enhanced its influence. The Charter has undermined the policy autonomy of the provinces by giving a policy veto to the Supreme Court, an institution that is more receptive to the policy preferences of national elites, especially in the area of language policy. This has aggravated French-English relations, because of the high incidence of judicial nullifications of Quebec's restrictive language policies. Elite attempts to compensate Quebec by way of new constitutional amendments (e.g., the Meech Lake Accord) have been thwarted by the emergence of an influential coalition of postmaterialist social interests, which use Charter litigation to promote their nonterritorial policy objectives. These "Charter Canadians" have opposed constitutional amendments that would "weaken" the Charter or the Court. This coalition has broken Canadian governments' historical monopoly on the constitutional amending process. By stimulating the democratization of constitutional politics, the Charter has weakened the institutions of consociational democracy and elite accommodation. This has diminished the influence of all the provinces, but especially Quebec, thereby contributing to the recent rise in secessionist tendencies within Quebec.