Stampede to judgement: persuasive influence and herding behavior by courts

We model appeals courts as Bayesian decision makers with privateinformation about a supreme court's interpretation of the law;each court also observes the previous decisions of other appealscourts in similar cases. Such 'persuasive influence' can cause'herding' behavior by later appeals courts as decisions progressivelyrely more on previous decisions and less on a court's privateinformation. We provide an example drawn from a recent UnitedStates Supreme Court decision finding unconstitutional a basicprovision of a law previously found constitutional by six circuitcourts. Herding on the wrong decision may remain uncorrected,since review of harmonious decisions is rare.     

Precedent, Parity, and Racial Discrimination: A Federal/State Comparison of the Impact of Brown v. Board of Education

Questions regarding Brown v. Board of Education 's short-term effect remain unanswered, particularly its comparative impact on federal district courts and state supreme courts. We test this through an analysis of racial discrimination cases in those venues in the twenty-year period bifurcated by the decision in May 1954. Our findings suggest that while federal district courts and state courts were similarly unresponsive to discrimination claims before that date, Brown exerted a significant impact on district court decisions but had little influence at the state level. Furthermore, a third pattern was found in federal appellate courts, where discrimination claims had a high likelihood of pro-minority decisions even before the Supreme Court directive.     

Judicial postponement of death recognition: the tragic case of Mary O'Connor

A recent New York Court of Appeals decision seriously impedes the ability of incompetent patients to control their medical care. In the case of Mary O'Connor, the court virtually eliminated an incompetent's rights to bodily integrity and privacy. The court relied on formalistic evidentiary arguments to vitiate the patient's refusal of death-prolonging treatment. This Case Comment examines both the doctrine and policy underlying the O'Connor decision, suggesting that the court erred in its holding and reasoning. An alternative framework is presented, arguing that courts should honor competently expressed patient decisions concerning medical treatment. New York's highest court, instead, posited an incompetent patient who becomes competent for a moment to render a decision. This legal fiction is nothing more than a thinly masked technique for imposition of the judges' values on the patient. This Case Comment argues that in the absence of clear direction from the patient, family and loved ones generally should make care decisions for the patient.     

State Courts, the U.S. Supreme Court, and the Protection of Civil Liberties

Advocates of federalism, both in the United States and elsewhere, often cite the potential for enhanced protection of individual civil liberties as an emerging rationale for a federal system dividing governmental responsibilities between central and regional governments and central and regional judiciaries. Echoing this, some judicial officials and scholars, confronting an increasingly conservative U.S. Supreme Court, have called for state supreme courts to use the state constitutional grounds to preserve and increase the protections of the Bill of Rights. Using event count analysis, we examine state search-and-seizure cases for 1981 to 1993 to ascertain under what circumstances state courts would use this opportunity to eliminate Supreme Court review. We find that the relative ideological position of the state supreme courts and the U.S. Supreme Court often prevents, or does away with the need for, liberal courts to use the adequate and independent state grounds doctrine to expand the rights of criminal defendants and that state supreme court justices react more predictably in the assertion of constitutional protection law than the general consensus suggests.     

中国“例制”构建中的法院角色和法官作用

我国案例指导制度中的法院角色和法官作用有着鲜明的特色,案件审理阶段法院和办案法官往往并没有参与案例指导的意识,而是在案件裁判后由审判庭之外的综合部门通过遴选的方式确定典型案例,经编辑后报审判委员会研究讨论,再逐级报最高人民法院确定并发布。指导性案例的产生不是按照管辖制度自然地"涌现",而是被人为地"发现",这一点明显不同于国外的做法。相比较,"涌现"方式符合司法经济原则和司法规律,而"发现"方式充满人为因素,成本高而效率相对较低。案例指导制度不应被管辖制度"牵着鼻子走",而应当通过变更管辖制度,与司法规律相适应。     

Relations Between the Ussr Supreme Court and the Supreme Courts of the Union Republics

As we know, the Supreme Court of the USSR and the supreme courts of the union republics did not come into being simultaneously. The supreme courts of the union republics came first, followed by the USSR Supreme Court.     

City of Revere v. Massachusetts General Hospital: government responsibility for an arrestee's medical care

City of Revere v. Massachusetts General Hospital presented the United States Supreme Court with its first opportunity to consider whether a state or municipality has a constitutional duty to pay for medical treatment received by an individual in police custody. The Supreme Judicial Court of Massachusetts had held that the city had an eighth amendment duty to pay for an arrestee's treatment. The U.S. Supreme Court reversed, observing that eighth amendment rights and duties are not implicated prior to conviction and that fourteenth amendment due process concerns were met once the arrestee received adequate medical care. No obligation to pay arises, the Court held, absent a specific state law provision requiring such payment. Because arrestees are subject to physical restraints similar to those imposed on convicted prisoners, this Case Comment argues that courts undertaking to determine the scope of a state's duty to provide treatment to arrestees should apply a due process standard which draws upon eighth amendment analysis. The Comment concludes that under such an eighth amendment equivalence approach, no duty to pay arises because the state's failure to pay the health care provider does not reflect "deliberate indifference" towards the recipient of the treatment.     

TRIAL COURTS' RESPONSES TO SUPREME COURT POLICY CHANGES

This is an exploratory study focusing on the response of federal district courts to Supreme Court changes in three policy areas: economic regulation, civil liberties, and criminal justice. An analysis of federal district court opinions published in the Federal Supplement before and after the Supreme Court decisions announcing the policy changes indicated that opinion-writing patterns of federal district judges changed in a manner consistent with the Supreme Court's new direction. Further study of the federal district courts' role in the policy process is recommended and suggestions for such research are made.     

Deciding about life-support: a perspective on the ethical and legal framework in the United Kingdom and Australia

This article is concerned with the legal right of health service providers to decide whether to provide life-prolonging treatment to patients. In particular, an examination of recent decisions by the English Court of Appeal in R (Burke) v General Medical Council (Official Solicitor and Others Intervening) [2005] EWCA Civ 1003 and the European Court of Human Rights in Burke v United Kingdom (unreported, ECHR, No 19807/06, 11 July 2006) is provided. An analysis of Australian case law is undertaken together with a consideration of the limits of a patient's legal right of autonomy in relation to choosing life-prolonging medical treatment; the basis upon which such treatment can be legally withdrawn or withheld from an incompetent patient against the patient's earlier expressed wishes that it should be continued or initiated; the concept in ethics and law of a patient's best interests; and the role of courts in adjudicating disputes about the continuation of treatment in light of the recent decisions.     

The United States Supreme Court and the death penalty since Furman: The settlement of basic issues

In 1972 the United States Supreme Court in Furman V. Georgia found that the death penalty as it was then being applied was cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution. Furman provided few constitutional guidelines, but states reinacted their death penalty statutes.In 1976 the Court began to receive appeals from death sentences imposed under the reinacted statutes. In its decisions the Court began to establish guidelines. It found the death penalty was not per se cruel and unusual punishment. Before the death penalty can be imposed the court must take into consideration any mitigating circumstances and the case must be reviewed by the state supreme court. A mandatory death sentence is unconstitutional.Other issues including proportionality, due process and finality of judgment will be examined in the next segment of this study.     

DO LOWER COURTS ANTICIPATE CHANGES IN SUPREME COURT POLICIES?: A Few Empirical Notes

This paper takes advantage of the change from the Warren Supreme Court to the Burger Supreme Court to investigate a phenomenon not usually examined in judicial impact research—anticipatory reactions. The research question is whether and under what circumstances federal courts of appeals anticipate changes in policy by the Supreme Court. Changes in the citation of Warren Court civil liberties decisions from the Warren Court era to the early Burger Court era are used to evaluate this question. It is hypothesized that moves away from Warren Court decisions would be greatest for decisions which received minimal support on the Warren Court and for important or salient policies. Contrary to these expectations it was found that during the Burger Court era the number of citations of Warren Court decisions actually increased, the percentage of positive citations increased, and the increases were greatest for decisions receiving minimal voting support on the Warren Court and for decisions classified as important.     

The Transmission of Legal Precedent Across the Australian State Supreme Courts Over the Twentieth Century

This article considers several possible determinants of the transmission of legal precedent across Australian state supreme courts over the course of the twentieth century. The study finds that that the transmission of legal precedent is higher between State supreme courts that are more physically proximate and between state supreme courts in which a majority of judges in both courts are appointed by conservative governments. The study further finds that having an intermediate trial court and providing appointments to the High Court of Australia are correlated with whether a state is a source of interstate citations or a cue sender.     

The impact of the right to refuse treatment in a forensic patient population: six-month review

In December of 1987, the Wisconsin supreme court held that all involuntarily committed mental patients in the state had the right to refuse psychotropic medication unless a court held that they were incompetent to make treatment decisions. The authors studied the effects of this decision in a 165-bed forensic hospital over the first six months after implementation of the decision. They found that 29 percent of patients already on psychotropic medication initially refused further treatment as opposed to 75 percent of newly admitted patients. Of refusers, 32 percent eventually resumed taking medication voluntarily; courts overturned the refusals of all the 51 percent who maintained their refusals, after an average delay of over a month. The length of procedural delays actually increased over the six months of the study as the courts learned of the decision. The authors compare their findings with other reported studies of implementation of right to refuse treatment decisions and discuss differences between the right to refuse treatment for civilly and criminally committed patients.     

Diversifying State Supreme Courts

Why do some states diversify their supreme courts sooner than others? Using original data on the first black and female state supreme court justices, I contend that political and institutional pressures influence when states diversify their high courts. The results suggest that selection systems, institutions affecting turnover, and the appointment of political minorities to the United States Supreme Court are associated with states seating their first black and female justices. The findings have implications for our understanding of the political and institutional circumstances that promote judicial diversity.     

Medical restrictive covenants in Illinois: at the crossroads of Carter-Shields and Prairie Eye Center

This article examines the history, development and treatment by Illinois courts of medical restrictive covenants. The authors highlight two recent cases from Illinois, one from the Supreme Court and the other authored by an appellate court panel. The article concludes by providing not only a forecast of how such covenants should be treated by Illinois state courts in the future, but also a pathway for the expectations of health care practitioners who wish to use restrictive covenants in their employment relationships with their colleagues.     

Litigating life and death.

In cases involving the "right to die," courts are faced with the agonizing task of developing legal standards governing termination of an incompetent patient's medical treatment. In this Article, Professor Rhoden criticizes the two dominant approaches courts have developed--the "subjective" and "objective" tests--and proposes that these standards be abandoned for a legal presumption in favor of family decisionmaking. She maintains that the "subjective" test, which requires the family to provide clear proof that termination of treatment is what the incompetent would have chosen, is often unworkable because a patient's character traits, and even her prior statements about medical treatment, seldom rise to the evidentiary level that courts purport to require. Similarly, she argues that the "objective" test, which requires the family to prove that the burdens of the patient's life, measured in terms of pain and suffering, clearly and markedly outweight its benefits, dehumanizes patients by suggesting that only their present, physical sensations count. Professor Rhoden suggests that the subjective and objective tests are not nearly as distinct as courts have made them. She argues that the rigidity of these legal standards reflects courts' acceptance of the medical profession's presumption in favor of continued treatment, a presumption that places a heavy burden on families seeking to terminate treatment. Drawing on the special qualifications of families as decisionmakers in such cases, Professor Rhoden proposes that courts recognize a presumptive right of families to exercise discretion over treatment decisions. Such a standard would recognize that, although doctors and others can readily prove that terminating the treatment of a patient who can still enjoy life is wrong, it is very hard for families to meet the current standards, which essentially require them to prove that termination is right.     

The patient who refuses medical treatment: a dilemma for hospitals and physicians

This article reviews recent case and statutory law concerning patients who refuse medical treatment. Among the special cases considered are: the competent adult patient who refuses treatment on religious or privacy grounds; the incompetent patient whose own wishes were never expressed, but whose family refuses treatment; the incompetent patient who expressed the wish not to be treated before becoming incompetent; and parents who refuse treatment on behalf of their child. It is pointed out that recent court decisions have blurred the distinctions between "extraordinary" care and "ordinary" care and between withholding and withdrawing life-sustaining treatment. Reference is made to the recent trend toward allowing the family of an incompetent patient to assert the patient's rights without court intervention either in the form of direct court order or through guardianship proceedings. Finally, the implications of these legal developments for health care institutions are discussed. A protocol pertaining to incompetent patients is proposed. Health care institutions are encouraged to develop formal policies for dealing with patients who refuse treatment, and to work with their professional associations in lobbying for legislation which will clarify the law in this area.     

The Impact of Supreme Court Activity on the Judicial Agenda

When the Supreme Court takes action, it establishes national policy within an issue area. A traditional, legal view holds that the decisions of the Court settle questions of law and thereby close the door on future litigation, reducing the need for future attention to that issue. Alternatively, an emerging interest group perspective suggests the Court, in deciding cases, provides signals that encourage additional attention to particular issues. I examine these competing perspectives of what happens in the federal courts after Supreme Court decisions. My results indicate that while Supreme Court decisions generally settle areas of law in terms of overall litigation rates, they also introduce new information that leads to increases in the attention of judges and interest groups to those particular issues.     

The right to refuse treatment: An application of the economic principles of decision-making under uncertainty

When courts do not defer to professional judgment, alternative ways must be used to make treatment decisions for persons who are deemed incompetent. Rather than impose the preferences of society on the mentally ill individual, courts have favored alternative procedures. The two most common approaches are substituted judgment and best interests. In using both the substituted judgment standard and the best interest standard the guardian of a patient who is judged incompetent to make a treatment decision tries to make the decision the patient would have made, had he been competent. The guardian must consider the individual's attitude toward risk in making this assessment. Substituted judgment can be used when clear and convincing evidence of the patient's preferences exists. The evidence would come from a study of the patient's expressed attitudes towards medical treatment and behavior before he or she became incompetent. This approach is effective only if the patient has revealed his or her preferences toward relevant medical treatment in the past. The best interest standard is used when no clear and convincing evidence of the patient's treatment preferences exists. The treatment decisions of competent patients whose characteristics are similar to the incompetent patient's, and who have faced a similar situation, can be used as a proxy for the decision the incompetent patient would have made. Using the choice function of similar people may make it possible to develop a reasonably objective basis for determining what course of action is in the patient's best interest.     

医疗损害赔偿诉讼难题及审判对策

《侵权责任法》第七章留下诸如当事人选择、案由确定、医疗过错和因果关系判断标准、病历证据属性、鉴定体制等许多实践操作的难题。对这些司法实践难题的解决．最高人民法院目前已经出台了部分司法解释,但实质性的问题都没有得到解决。由于最高人民法院出台司法解释有一个过程．在司法解释尚未出台之际,地方高级人民法院针寸当地的司法实践的具体情况。可以因地适宜出台地方司法审判指导文件。我们现在看到的浙江、江苏、上海、北京四个省市的地方审判指导文件,解决了各地审理医疗损害赔偿纠纷案件中的一些难题,在制度上有创斯之处,且具有极强的可操作性。地方司法审判指导文件的出台,既解决了当前地方上医疗损害赔偿案件审理的困境．也为最高人民法院制定司法解释积累经验。