Supreme court

About: Supreme court is a research topic. Over the lifetime, 41858 publications have been published within this topic receiving 306787 citations. The topic is also known as: court of last resort & highest court of appeal.

Discrimination and Dignity

Abstract: Recent Supreme Court jurisprudence under s 15 of the Charter of Rights and Freedoms has identified the violation of human dignity as a key element, perhaps the key element in the determination of whether a legislative distinction is discriminatory Although this move has been condemned as introducing a vague and indeterminate concept into equality jurisprudence and for being used to deny worthy claims, it is arguable that some substantive foundation like dignity is needed to make sense of s 15 However, the Supreme Court has not yet done a very good job of explaining what dignity is and how we can identify its violation This article aims to provide a fuller understanding of dignity as a legal value and explain the role is it capable of playing in defining the scope of equality rights It identifies three forms of indignity implicit in the case law to date and interprets features of the Supreme Court's test for the violation of s 15 through a dignity lens

A Study of Poisson's Models for Jury Verdicts in Criminal and Civil Trials

Abstract: This article gives an exposition of models provided by Poisson to account for actual jury decisions in criminal and civil trials in France in the first half of the 19th century. The model parameters are jury size, juror error, and probability that the accused is guilty. Poisson's models are cast in a modern setting, and this provides a framework in which new investigations can be initiated. A recent decision by the U.S. Supreme Court on jury size for felony proceedings in state courts should provoke more analyses that can build on the basis provided.

Extreme prematurity and parental rights after Baby Doe.

Abstract: Contemporary ethical and legal norms hold that all human beings born alive should be treated equally, regardless of disability. Yet there is a strong sense that some lives are so diminished in capacity for interaction or experience that little good is achieved by providing medical treatments necessary to keep them alive. In addition, many persons believe that the parents who have the chief responsibility to provide care should have a dominant say in whether their children are treated. (1) Before 1970, the question of whether to withhold treatment from such newborns was rarely contested. The ancient Spartan practice of exposing babies on hillsides and keeping those that survived had a contemporary counterpart in the common medical practice of simply not treating those born with major handicaps. As late as 1972, some doctors and parents thought it appropriate to withhold from children with Down syndrome or spina bifida surgery necessary for their survival. Noted pediatricians published articles in major medical journals reporting the withholding of life-saving treatment from infants with many kinds of disabilities. (2) Surveys of doctors showed that these practices were not exceptions. (3) In the mid-1970s, the emerging discipline of bioethics began to question the ethics and legality of these practices even as they were publicized. Courts became more willing to order treatment over parental wishes, though neither a uniform response nor clear guidelines emerged. (4) It took the Baby Doe controversy of 1981 and the federal Child Abuse Amendments (CAA) of 1984 to produce a rough consensus about the norms and practices that would govern this area. (5) Since passage of the CAA, ethical and legal controversy over parental authority to withhold treatment from handicapped or disabled newborns, although still featured in bioethics courses and texts, has largely ceased. Yet one aspect of the controversy was never directly resolved. Because the Baby Doe controversy had focused on infants with genetic and chromosomal anomalies, the extent to which the CAA norms might require changes in practices with very premature and low birth weight infants remained open, even though it was occasionally mentioned in articles. (6) As a result, physicians and hospitals that insisted on treating premature newborns over parental objections were vulnerable to tort actions by parents. In January 1998, a Houston jury awarded $43 million in damages to parents whose daughter, born at twenty-three weeks and weighing 614 grams, was resuscitated and initially treated without their consent, leading to a life with severe mental and physical impairments. Texas appellate courts eventually reversed that decision, but in the five-year interim, hospitals and physicians faced the prospect of huge damage awards if they sought to treat cases of extreme prematurity in accordance with CAA standards against the parents' wishes. This article reviews the controversy and assesses the extent to which parents should have the right to decide not to treat severely premature newborns. The Baby Doe Controversy The Baby Doe controversy, which played such a key role in clarifying norms and practices in this area, arose in 1981 in Bloomington, Indiana. Parents of a newborn child with Down Syndrome and a trachealesophageal fistula refused to consent to a standard operation that would enable the child to take food and water by mouth. The hospital and doctors sought approval from a family court to perform surgery against the parents' wishes. A probate court denied the request on the ground that the parents had the right to make the decision. The child's guardian ad litem appealed the case unsuccessfully to the Indiana and then to the United States Supreme Court. While the case was pending, it drew wide media coverage and the attention of right-to-life and disability rights groups. Before the United States Supreme Court could rule on the guardian's appeal, Baby Doe died. …

Constitutional Adjudication: Lessons from Europe

Abstract: One of the most remarkable political developments of the twentieth century has been the development of constitutional democracy in Europe after World War II The defeated powers in the western part of the continent adopted new constitutions that embraced notions of individual rights and limited government It is difficult to overstate how fundamental these changes have been in transforming preexisting legal systems and cultures and indeed, in transcending historical political divisions The most important transformation in these new constitutions was the introduction of constitutional courts with power to review and strike down legislation, and also to adjudicate conflicts among governmental departments1 These new courts have grown in activity and importance since their introduction And, they have spread to other countries throughout Europe with each wave of democratization-to Spain and Portugal in the 1970s and to Eastern Europe with the establishment of postcommunist constitutional regimes after 1989 Each new constitution has introduced new constitutional courts and new constitutional adjudication2 From an American perspective, it is easy to see these constitutional innovations as somehow a successful American export The United States has enjoyed a system of constitutional adjudication-which we call judicial review-for two centuries, and the Germans and Italians were led to adopt these institutions under American "tutelage," or even pressure But this view is mistaken for two reasons It is true of course that the Americans wanted the Italians and Germans to establish constitutions with bills of rights and restraints on national government3 But, the struggle over the creation of the new constitutions was dominated by indigenous leaders, not by the Americans4 The compromises settled upon reflected historical conflicts within the countries Indeed, it would have been both unattractive and impossible to import American-style judicial review to Europe, and, in the end, nothing like it was put in place As we shall see, when we look for intellectual ancestors of constitutional adjudication in Europe, we need to look at Austria after the First World War rather than to the US Constitution And we need to recognize Hans Kelsen, the first Chief Justice and designer of the Austrian Court, and not James Madison, as its spiritual godfather We think it is also important to avoid the opposite mistake: to think that one can import, directly from Europe, institutions and practices created there over the past half century The European constitutional courts have in many respects been remarkably successful in implanting constitutional restraints on governments in systems long inhospitable to such restraints5 Moreover, they have done so while avoiding the kind of "politicization" of judging that is characteristic of American courts6 The decisions of European courts are not marked by the publication of separate and conflicting opinions7 Perhaps for that reason European judges are not able to develop ideologically distinct public personalities8 And, even though European legislatures do struggle over appointments to the constitutional courts, political leaders do not campaign for election by claiming they will appoint certain kinds of judges to these courts But, for all their attractions, we do not think it would be easy-and possibly not even desirable-to try to import European practices into the American setting Reforms of any legal system need to fit with the internal requirements of that system and not be imposed Still, we are hopeful that at least some lessons might be learned from the European experiment and those experiences might suggest some possible paths of constitutional or subconstitutional reform in the United States The idea that we shall pursue here is that the US Supreme Court may have gone too far in encouraging members of the Court to engage in public conflict, and that some simple reforms may have the effect of reducing the expression of political differences in published opinions …

The Upside-Down Constitution

Abstract: Over the course of the nation's history, the Constitution has been turned upside-down, Michael Greve argues in this provocative book. The Constitution's vision of a federalism in which local, state, and federal government compete to satisfy the preferences of individuals has given way to a cooperative, cartelized federalism that enables interest groups to leverage power at every level for their own benefit. Greve traces this inversion from the Constitution's founding through today, dispelling much received wisdom along the way. The Upside-Down Constitution shows how federalism's transformation was a response to states' demands, not an imposition on them. From the nineteenth-century judicial elaboration of a competitive federal order, to the New Deal transformation, to the contemporary Supreme Court's impoverished understanding of constitutional structure, and the "devolution" in vogue today, Greve describes a trend that will lead to more government and fiscal profligacy, not less. Taking aim at both the progressive heirs of the New Deal and the vocal originalists of our own time, The Upside-Down Constitution explains why the current fiscal crisis will soon compel a fundamental renegotiation of a new federalism grounded in constitutional principles.