Justice Brennan,Justice Harlan and New York Times co. v. Sullivan: A case study in supreme court decision making

New York Times Co. v. Sullivan is arguably the most important free speech case ever decided by the Supreme Court. This case, the Court's first substantive treatment of libel law, delineated a new approach toward the treatment of free speech. Because the Court attempts to present a unified front when it cuts broad swaths in the law, a unanimous or near‐unanimous opinion was very important in Times v. Sullivan.For a time in the deliberations, however, it appeared that Justice William Brennan would not win even a bare majority for his propositions. This article examines the deliberations in the case, providing not only a renewed understanding of the importance of Times v. Sullivan, but also giving a rare glimpse of how the Court operates and how process affects result.     

Use the Purpose by Which All May Benefit: The Semiotics of ‘Public Use’

This paper applies semiotic analysis to issues arising from the recent Supreme Court decision of Kelo v. City of New London [545 U.S.469] (2005). The author uses the tools of semiotics to explore the evolution of language and speech and their relationship to the terms, “private property” and “public use” as used by the Supreme Court and the general public in the years leading up to the Kelo decision. This paper will first provide an overview of the field of semiotics, describing the prevailing thought and the methods utilized by semioticians to find meaning. Second, the tools of semiotics will be applied to Supreme Court cases, beginning with Bauman v. Ross [167 U.S. 548] (1897) and continuing to Kelo v. City of New London. Utilizing these tools, the author will show how, within the span of approximately 100 years, the speech of the court has affected the language of legal discourse. The signs to which both Bauman and Kelo seek to attach meaning are found in the Fifth Amendment to the US Constitution, which provides, in relevant part, “…nor shall private property be taken for public use, without just compensation.”(emphasis added) (U.S. Const. Amendment 5). This dialectic activity resulted in the development of two different languages. One was used by the layperson, whereas the other was found in relevant legal/political institutions such as the US Supreme Court. This paper will focus on the fundamental change in the meaning of the sign/expression “public use.”     

The utility of the Strengths and Difficulties Questionnaire as a screening measure among children and adolescents who light fires

Background: This pilot study examined the utility of the Strengths and Difficulties Questionnaire (SDQ) as a standardised screening tool for behavioural and psychosocial problems by fire service-based programmes to identify at-risk young firesetters who are in need of further comprehensive multiagency intervention. Method: SDQ scores were obtained from 57 children and adolescents, aged 6–17 years, who were referred to the Fire Awareness and Intervention Programme in New Zealand for firesetting behaviour. Scores from firesetters aged 13–17 years were compared to those of typically developing New Zealand secondary school students. Results: Overall, young firesetters were at a high risk of clinically significant conduct and hyperactivity/inattention difficulties, and at low risk of clinically significant emotional problems. Cronbach’s alphas for most SDQ subscales were acceptable. Conclusions: We recommend that the SDQ be considered by fire service-operated interventions for use as an additional assessment tool for the young firesetting population.

Key Practitioner Messages ? Due to its financial and emotional cost, deliberate firesetting by children and adolescents is a significant concern for communities.

? There appears to be significant comorbidity between firesetting and serious antisocial behaviour, and many young firesetters engage in ongoing general offending behaviour.

? Intervention for child and adolescent firesetters is predominantly provided by fire services and typically involves fire safety education.

? Given the co-morbid behavioural and psychosocial problems present among young firesetters, there is a need for fire service education programmes to use a standardised assessment tool that screens for wider behavioural and psychosocial difficulties to assist in the identification and referral of high-risk young people to appropriate services for further intervention.

? The SDQ, a free, short and well-validated measure, could be adopted by fire service-operated education programmes to help detect and inform the referral of young firesetters who need more comprehensive multiagency intervention.

     

Fourth Amendment update: the Supreme Court and strip searches: Safford Unified School District No. 1 v Redding

In light of the dramatic increase in the presence of weapons, violence, drugs, and other contraband in schools, school officials in the United States and England face significant challenges as they seek to maintain safe and orderly learning environments. Almost twenty five years after the United States Supreme Court's 1985 ruling in New Jersey v. T.L.O. allowed educational officials to search student lockers and property in order to keep schools safe, the Justices addressed the more delicate matter of strip searches for contraband such as drugs. In Safford Unified School District No. 1 v. Redding (Redding), the Court invalidated the strip search of a student for drugs but left the door open for the possibility of allowing searches for weapons under some circumstances. In light of remaining unanswered questions after Redding, this article reviews the background on the Fourth Amendment, earlier cases on student searches in American public schools, Redding in detail, and reflects on unanswered questions in its wake in the hope of shedding light on the propriety of strip searches of students.     

On the Choice of Remedies

At a time when misuse of the power to zone seems to be increasing—some say rampant—when such misuse is frequently ignored even sanctioned by the courts, e.g.; Belle Terre v. Boraas, Steelhill v. Sanbornton, U.S. v. Black Jack (lower federal court), it is heartening to find a powerful court unite behind an articulate and powerfully worded opinion which strikes down an exercise of the police power (zoning) which legislates local biases and unreasonably excludes low income housing. There is an appropriateness too in that it is Justice Hall, some 12 years after his classic dissent in the Vickers case, who rationalizes a long line of often misunderstood New Jersey cases and the case law of other jurisdictions and concludes: “that every … municipality must, by its land use regulations, … make realistically possible an appropriate variety and choice of housing.” A strong concurring opinion further notes; “the use of the zoning power by municipalities to maintain themselves as enclaves of affluence or of social homogeneity … [is] improper and to be strongly condemned.”     

Dance Films Association is Still Growing

Abstract

Reluctant Bureaucrats: The Struggle to Establish the National Endowment for the Arts Charles Christopher Mark Dubuque, Iowa: Kendall Hunt, 1992, 239 pages, paper $19.95

The Audience for American Art Museums J. Mark Davidson Schuster Research Division Report #23, National Endowment for the Arts Washington: Seven Locks Press, 1991, 46 pages, paper $10.95

21 Voices, The Art of Presenting the Performing Arts Naomi Rhodes Washington, D.C.: Association of Performing Arts Presenters, 1991, 324 pages, paper $20.00 members, $24.00 nonmembers.

Workpapers I: Rethinking and Restructuring The Arts Organization Nello McDaniel and George Thorn, eds. New York: FEDAPT, 1990, 141 pages, paper $16.95.

Workpapers II: Arts Boards: Myths, Perspectives and New Approaches Nello McDaniel and George Thorn, eds. New York: FEDAPT, 1991, 86 pages, paper $16.95.     

Interrogation techniques and memory distrust

Abstract

Guideline judgements in English sentencing have been subjected to little scrutiny by non-lawyers. In this paper, the writers examine one guideline judgement, R v. Oliver and Others, which concerns the sentencing of offences involving indecent photographs and pseudo-photographs of children. Ten post-Oliver cases where a sentence was appealed are analysed and the results reported. The writers find the guideline's internal logic wanting, with shortcomings reflected in the patchy and non-obvious inferences made in appellate judgements of cases of the kind covered in Oliver. The writers propose flowcharting as a heuristic device in the development of guideline judgements, and possibly as a form of representation of judgements parallel to text-based formulations.     

A five-year gender equality score card for the Philippine Supreme Court under its first woman Chief Justice: opportunities seized and missed

ABSTRACT

On 24 August 2012, the Honourable Maria Lourdes Sereno was appointed Chief Justice of the Philippine Supreme Court, the first woman to hold such position since its establishment in 1901. Several cases involving important women’s issues decided during her term were reviewed in this work, inspired by the possibility that a young, brilliant and hardworking woman of humble beginnings sitting at the helm could make a difference. Indeed, the Chief Justice manifested commendable grit in registering meaningful dissent in Imbong v. Ochoa, where she championed women’s bodily autonomy, and when she wrote a provocative concurrence in Vinuya v. Romulo, where she gave hope to women who suffered wartime atrocities. However, she missed an opportunity to put the rape shield law into good use in deciding People v. Batuhan and Lacturan. Her concurrence was also disappointing in Garcia v. Drilon, where she favoured rational basis review over intermediate level of scrutiny for gender-based classification, in People v. Jumawan where a conviction for marital rape was based on romantic paternalism, in People v. Palotes where additional compensatory damages were not considered for a rape victim who bore a child, in People v. Tionloc where acquittal was based on rape myths, and in People v. Caoili where the Court refused to call rape by its ugly name.     

Nineteenth-Century Lawyers and Railway Capitalism: Historians and the Use of Legal Cases

Abstract

The railway was a key factor in nineteenth-century economic development. R.W. Kostal considered the interaction of the industry with lawyers in his book Law and English Railway Capitalism 1825–1875. Yet his conclusion that the law coped badly with the new industry is vitiated by his failure properly to analyse the way the courts applied legal doctrine. In areas such as preincorporation liability for railway companies’ debts, rating and compulsory purchase, the courts applied well-established principles. Even new law in cases like Priestley v Fowler can only be understood in terms of common law principles.     

Book Reviews

Abstract

The Artist-Gallery Partnership: A Practical Guide to Consignment, by Susan Mellon and Tad Crawford. New York: The American Council for the Arts, 1981. Reviewed by Marcia E. VETROCQ

Partners: A Practical Guide to Corporate Support of the Arts. New York: The Cultural Assistance Center, 1982. $8.95. Reviewed by Jillian Poole     

Considering specialization/versatility as an unintended collateral consequence of SORN

PurposeEmpirical studies examining specialization/versatility among offenders have long been an area of interest among criminologists. This same focus has only relatively recently been directed toward sex offenders.MethodsUtilize matched random samples of male sex offenders released from prison pre- and post-Sex Offender Registration and Notification (SORN) in the state of New Jersey with eight years of follow-up for measuring recidivism.ResultsVarious specialization thresholds and individualized diversity index (D) scores disaggregated by recidivism offense type (e.g., violent, property, drug, and sex offenses) suggest that these sex offenders were more diverse than specialized. Furthermore, Tobit regression analysis revealed that alcohol problems, being a rapist, being a prior violent offender, and recidivism offense frequency significantly predicted versatility compared with being married and being a prior property offender, which were inversely related to versatility. Finally, sex offenders who were released from prison post-SORN demonstrated a higher level of specialization than sex offenders who were released from prison pre-SORN, yet their tendency toward specialization was almost exclusively a function of drug offenses not sex offenses.ConclusionsSORN policy implications and directions for future research are discussed.     

The death penalty for juveniles: Bridging the gap between an evolving standard of decency and legislative policy

In Stanford v. Kentucky (1989), the U.S. Supreme Court held that the practice of executing juveniles who were age 16 or 17 at the time of their crime(s) did not violate the “evolving standards of decency” (ESD) of American society. This ESD determination was based on legislative authorization of this punishment. Although this interpretation of what constitutes an ESD has been controlling in death penalty cases since Gregg v. Georgia (1976), the high court's original conception of an ESD stressed the importance of other factors in its determination (e.g., historical review and empirical knowledge about executions). Because the ESD is a Court-created measure, legislatures are under no constitutional obligation to acknowledge the scope of concerns embodied in the historical genesis of this concept. Nevertheless, in this paper we oppose a juvenile death penalty and argue that legislatures should consider the importance of historical and research utilization components of the ESD concept when debating the validity of a policy regarding the death penalty for juveniles.     

Book Review

Abstract

Visionaries and Outcasts: The NEA, Congress, and the Place of the Visual Artist in America Michael Brenson New York: The New Press, 2001, 157 pages, hardcover $25.00     

The Royal Prerogative in the Realms

From 1840, the laws of New Zealand have comprised the common law and statute law, both of which – but especially the former – were originally based upon the laws of England and continued to draw upon English jurisprudence. Since New Zealand was regarded as a settled colony, the settlers brought with them such of the laws of England as were applicable to the circumstances of the colony. This included the royal prerogative.

Although elements of the royal prerogative are obsolete or have been subsumed in parliamentary enactments, there are a number of aspects that continue to be used by the Crown today. One is the honours prerogative. The changed nature of the Crown (and in particular its division among the realms) has, however, led to some uncertainties. In particular, there have been questions regarding the use of the royal prerogative in respect of armorial bearings, and the proper exercise and application of the Law of Arms. This has never caused serious difficulties in New Zealand – if indeed it can be said to be an issue at all – but the Canadian case of Black v Chrétien has shown that disputes over honours and dignities can arise, and can have serious political or constitutional implications.

This paper considers the introduction of the royal prerogative to the realms, and some of the implications and possible difficulties which this process may have led to.     

Book Reviews

Abstract

Effective Corporate Fundraising by W. Grant Brownrigg. New York: The American Council for the Arts, 1981, $14.95. Reviewed by Jillian Poole.

The Business of Art, edited and with an introduction by Lee Evan Caplin. Englewood Cliffs, New Jersey: Prentice-Hall, Inc., 1982, $9.95, 377 pages. Reviewed by Joanna Shaw Eagle.     

Moynihan Theatre Investment Tax Credit Bill

Abstract

Art, Culture and Enterprise: The Politics of Art and the Cultural Industries Justine Lewis London and New York: Routledge, 1990     

Prosecutorial discretion in seeking death: An analysis of racial disparity in the pretrial stages of case processing in a midwestern county

In the 1987 case of McCleskey v. Kemp, the U.S. Supreme Court appeared to foreclose the possibility of challenging racial bias in capital sentencing by using statistically based claims of discrimination. McCleskey, however, does not prevent a challenge to decisions made by particular individuals during the capital punishment process. In this study we examined pretrial decisions made by, or under the direction of, one prosecutor to determine whether those decisions had been influenced by race. We found that homicide cases involving black defendants and white victims fared worse than other racial combinations in all of the pretrial decisions made: They were more likely to result in first-degree murder charges, to be served notice of aggravating circumstances, and to proceed to capital trial.     

THE APPRENDI‐BLAKELY CASES: SENTENCING REFORM COUNTER REVOLUTION?

Recent Supreme Court decisions have extended jury trial rights and beyond‐reasonable‐doubt proof standards to certain sentence‐enhancement facts. The first two cases, Apprendi v. New Jersey and Ring v. Arizona, were narrow in scope and relatively uncontroversial. But Blakely v. Washington marked a substantial expansion of the rationale and scope of Apprendi, and threatened to invalidate entire sentencing reform systems, both legally‐binding guidelines of the type at issue in Blakely and it's sequel, Booker v. United States, and statutory determinate sentence systems like the one invalidated in Cunningham v. California. Each of these decisions has potential effects not only on sentencing severity and disparity in the cases controlled by that decision, but also on prosecutorial, legislative, and sentencing commission measures designed to comply with the decision, avoid it, and/or mitigate its impact. Field resistance and avoidance measures are likely to be stronger in jurisdictions where the existing sentencing system enjoyed broad support; in such jurisdictions, resistance may be particularly strong to the more controversial Blakely ruling. Impact assessments must therefore carefully distinguish the separate impacts of Apprendi and Blakely in each jurisdiction being studied, and the extent of support for the existing sentencing system. Such assessments should also examine pre‐existing trends and other independent sources of change; leadership by sentencing commissions or other officials in crafting responsive measures; structural and other features of the sentencing system which render compliance more or less difficult; and second‐stage effects, on sentencing, prosecutorial, or sentencing policy decisions, that reflect the prior compliance, avoidance, and mitigation measures adopted in that jurisdiction. The greatest long‐term effects may be on prosecutorial, legislative, and commission decisions, rather than on sentencing outcomes.     

Book reviews

The Animal Rights/Environmental Ethics Debate ‐ The Environmental Perspective Edited by Eugene C. Hargrove. Albany, New York: State University of New York Press, 1992. Pp.xxvi, 261. Index. $19.95.     

Books Received

abstract

David Wilkinson. Environment and Law. Routledge, New York. 2002. 312 pp. Hard cover, $80.00. Paper, $25.95 *

Tim W. Clark. The Policy Process: A Practical Guide for Natural Resource Professionals. Yale University Press, New Haven, CT. 2002. xii + 215 pp. $35 (hard cover), $18.50 (paper)

George M. Woodwell. Forests in a Full World. Yale University Press, New Haven, CT. 2001. xxii + 231 pp. $30.00 (hard cover), $15.00 (paper)