司法克制理论的内涵及其现实意义

奥利弗•温德尔•霍姆斯是20世纪美国著名的大法官之一。在他任职美国联邦最高法院期间,因提出的一系列异议在后来都得到了认可,所以他的法律思想被誉为确立了美国最高法院20世纪法哲学的航程。在洛克纳诉纽约州一案中,霍姆斯的异议在后来逐渐上升为确定的学说。霍姆斯在该案中提出了他著名的司法克制理论。他认为,法官不应该评判其所依据的法律的优劣,也不应评判立法依据的经济理论的好坏。法律背后的经济理论应该是一个立法者而不是法官首先考虑的问题。霍姆斯的这个理论对完善我国司法程序改革具有重大的指导意义。     

Generic tendencies in majority and non‐majority supreme court opinions: The case of justice Douglas

Using a sample of Supreme Court Justice William O. Douglas' Supreme Court opinons as the data base, this study investigated the question of whether majority or non‐majority status constitutes a variable sufficiently strong to predict the rhetorical quality of the opinion. The three traditional schools of legal philosophy, Natural Law, Legal Positivism, and Legal Realism, provided the basis of three hypothetical rhetorical genres which were found to be present in statistically similar frequencies in all opinion types. These findings (1) call into question the conventional wisdom that majority and dissenting opinions represent different rhetorical sub‐species, and (2) suggest that a more fruitful avenue of analysis looks to the generic architechtonics of Supreme Court opinions rather than to the relatively more superficial dimension of stylistics.     

我国检察机关量刑建议制度立法:问题与对策

量刑建议制度是检察机关有效制约法官量刑裁量权,加强刑事审判法律检察监督和保护受害人的重要保障。我国最高人民检察院、最高人民法院的三个司法解释确立了量刑建议制度,但相关立法还存在问题。因此,为保障量刑建议制度功效发挥,我国应针对问题而完善相关立法。     

美国内战时期萨蒙·P·蔡斯的政治生涯

萨蒙·P·蔡斯,十九世纪美国著名政治家。内战时期出任联邦财政部长,为稳定财政、恢复联邦统一和废除黑奴制作出了贡献。因政治野心过大而声誉受损。1864年被任命为美国最高法院第六任首席大法官。     

Improving cognitive motivation through strategies of intervention

Editor's Note: In Grutter v. Bollinger, __ U.S. ___ ; 123 S. Ct. 2325; 156 L. Ed. 2d 304 (2003), the Supreme Court rendered a landmark decision approving the use of race as one factor in admissions decisions at the University of Michigan Law School. The opinion of the Court discussed an expert opinion of Kent D. Syverud, Dean of the Vanderbilt Law School, concerning the educational benefits of diversity, noting that "when a critical mass of underrepresented minority students is present, racial stereotypes lose their force because non-minority students learn there is no 'minority viewpoint' but rather a variety of viewpoints among minority students." The expert report to which the Court referred was prepared at the Vanderbilt Law School in 1999 and attached as an Exhibit (in Volume 3 of the Appendix) to the Defendant University of Michigan Law School's Memorandum of Law in Support of Motion for Summary Judgment, May 3, 1999, Grutter v. Bollinger, C.A. No. 97-75928, in the United States District Court for the Eastern District of Michigan. The report was also referenced in the appendix to the Writ of Certiorari in the Supreme Court of the United States at 215a. What follows is the original expert report as submitted to the Court.     

美国联邦法院违宪审查的宪法限制——以《联邦宪法》第3条为视角

在"三权分立"的原理和制度架构下,为保证在违宪审查过程中不超越自身权限,同时减少法院和国会之间的冲突,美国联邦最高法院依据<联邦宪法>第3条,确立了诸多限制联邦法院违宪审查的具体原则,包括当事人适格、诉的成熟性、已逾可诉的程度、禁止咨询性意见和不审查政治问题.符合这些原则的案件中的宪法问题才可能被联邦最高法院裁判.     

A Mere Footnote? An American Dilemma and Supreme Court School Desegregation Jurisprudence

This article provides historical and legal context for recent U.S. Supreme Court school desegregation decisions. The Supreme Court's race-based and race-neutral arguments from Brown (1954) to Parents Involved (2007) are examined within their broader context. Policy implications and potential support for diversity goal arguments given the Obama administration's appointments of Sonia Sotomayor and Elana Kagan as the 111th and 112th Supreme Court Justices are considered in light of enduring issues and guiding ideals delineated over half a century ago in Gunnar Myrdal's landmark study of race in the United States, An American Dilemma.     

美国高等教育扶持行动的司法争议——对“密歇根诉讼案”及意义的分析

美国联邦最高法院对"密歇根诉讼案"的判决对于美国高等教育具有重要意义。"密歇根诉讼案"是美国高校实施扶持行动计划所引发的争议与矛盾不断激化的必然结果,联邦最高法院在审理中出现了巨大的意见分歧。判决结果一方面为高校实施扶持行动设定了"个体化审查"、"严格限制"等法律原则,一方面加强了对族群倾向性教育政策的限制。美国联邦最高法院对高等教育发展具有重要影响,但由于其特殊性,这种影响的发挥也受到了限制。     

The propaganda of bodies

In his famous “tobacco speech” of 1962, NAB President LeRoy Collins invoked the industry's own self‐regulatory standards and declared that private profit must give way when the public interest is jeopardized. Thus he argued that advertisements for cigarettes directed at youth should be barred from the airwaves. However, the broadcasters’ rejection of his proposal reveals the industry's historical equivocal view of the public interest. On January 1, 1971 Congress struck cigarette advertising from radio and television. Broadcasters fought that decision to the U.S. Supreme Court, although it is quite possible that the airing of cigarette commercials would still be permissable but for a critical industry decision ten years ago.     

#Blackwomenatwork: Teaching and Retention in Urban Schools

Black female educators played a vital role in segregated schools prior to the 1954 landmark Supreme Court case Brown v. Board of Education of Topeka, Kansas. Despite their notable and historic presence in the field of public education, presently they are disproportionately underrepresented in the U.S. teacher workforce. Acknowledging the shortage of Black female teachers in K-12 classrooms, the purpose of this qualitative study is to explore why Black female educators teach in urban schools. By examining Black female educators’ initial draw to urban schools in what I conceptualized as the urban factor, I hope to reframe the implicit biases often surrounding urban schools. Concluding, three themes emerged about Black female teachers’ thoughts on and preferences for urban schools, with additional unexpected findings about their perceptions of student behavior and teacher retention.     

美国私立中小学财政资助政策合法化过程透析

政府对私立教育的财政资助问题是各国教育政策的一个重要内容。20世纪30年代以来,伴随美国政府对私立中小学进行财政资助的政策尝试,逐步开启法院对该类政策的合法性审查。在近百年的财政资助诉讼史中,美国联邦最高法院对该类政策的态度经历了完全禁止—开始允许—严格限制—摇摆不定—积极资助的发展轨迹,逐渐形成了以“莱蒙检验”为框架、以“中立性”准则为重心、以“儿童受益”准则和“支持检验”为辅助的多元审查体系。其“以学生为中心”、尊重家长“教育选择”和“平等”的价值理念,以及资助的内容和实现方式均具有重要的启示意义。     

论我国未成年人犯罪刑事政策的价值取向——以宽严相济刑事政策为视角

2006年1月,最高人民法院出台了关于审理未成年人刑事案件的司法解释。在这个司法解释中,本着宽严相济、对未成年人犯罪以宽为主的刑事政策精神,更加清晰的透射出我国未成年人犯罪刑事政策的价值取向,那就是优先保护未成年人利益,更为注重实质公正、以人为本和社会的长远秩序。     

Introduction

On July 9, 1996, the Connecticut Supreme Court issued its landmark school desegregation decision, Sheff v. O'Neill. More than a decade later, Hartford's schoolchildren are as segregated as they were when the case was first filed in 1989. Based on data from a statewide survey and data collected from two focus groups of white parents collected shortly after the State's High Court ruling, this investigation reveals that the racial attitudes of white parents were, from the beginning, a major obstacle to a successful resolution of the Sheff impasse.     

Influence of Callahan's vulnerability thesis on Thought and Practice in Educational Administration, 1962 to 1992

This article, a reconsidering of both the benefits and the consequences of the Brown v. Board of Education (1954; Davis and Graham, 1995) case, posits determinations as to the historical significance of the U.S. Supreme Court justices' decision. Carefully weighing the words of the justices renders a position that the decision of the Court and the intention of the Court do not fall in alignment with one another. And despite the rightness of the decision and all that has been reaped in the way of its benefits, still, the decision's unarticulated language has rendered a greater significance and has placed enduring consequences on the public education system, as well as in the greater context of race as a whole.     

美国联邦最高法院在大学教师宪法权利保障中的作用

在美国高等教育与法律的关系中,大学教师宪法权利保障是最基本的问题之一.随着美国社会的发展和进步,特别是20世纪中期以后,联邦法院通过对一些涉及宪法问题的教育案件的审理对全国高等教育政策产生了影响,改进了大学教师的权利保障状况,维护了大学的学术自由和大学自治,促进了美国高等教育的发展.     

Science identity possibilities: a look into Blackness,masculinities, and economic power relations

This forum paper dialogues with Sheron Mark’s A bit of both science and economics: a non-traditional STEM identity narrative. In her paper, she discusses the development of a Science, Technology, Engineering, and Mathematics (STEM) identity by a young African American male during an informal STEM for Social Justice Program. Here, the discussion focuses on Black masculinities, identity formation, and the role of science educators in making STEM fields a welcoming place for young Black men. Drawing from Mark’s data and discussion, this paper is a dialogue between science identity possibilities in the United States and in Brazil when we look at the intersections of race, gender, and socioeconomic status. Using the shared colonial past of both countries a connection is established to address race relations within science education. The main argument in this paper is that racism can no longer be denied and dismissed by the science education community worldwide and that intersectional approaches are needed to face this issue.     

Statement of American Social Scientists of Research on School Desegregation to the U.S. Supreme Court in Parents v. Seattle School District and Meredith v. Jefferson County

In June 2006, the U.S. Supreme Court agreed to review two related cases originating from school districts in Louisville, Kentucky and Seattle, Washington that involved voluntarily adopted racial integration plans. Concerned about the outcome of these cases, 553 social scientists submitted a social science statement to the Supreme Court summarizing the large body of social science research supporting the school districts’ policies relevant to the Court’s determination. The statement, reprinted here, supports three interrelated conclusions: (1) racially integrated schools provide significant benefits to students and communities; (2) racially isolated schools have harmful educational implications for students; and (3) race-conscious policies are necessary to maintain racial integration in schools. Because of the overwhelming amount of scholarly data, social scientists argued, as the lower courts had found, that the schools boards have a compelling interest to promote racial integration and prevent racial isolation through choice-based school assignment policies that consider race as a factor. On June 28, 2007, the U.S. Supreme Court struck down the school assignment plans on the grounds that the plans were not narrowly tailored to the interests that the school districts had asserted. In addition to affecting the ability of school districts to maintain racially diverse schools, the decision has broad implications for researchers who seek to help school districts in these efforts.

Desegregation Decrees versus the NCLB Choice Provision

ABSTRACT

Despite the creeping resegregation of public schools, recent court decisions have been involved in the lifting of court-ordered desegregation decrees, which could arguably cause further segregation. When dismissing desegregation decrees, lower courts have relied on three U.S. Supreme Court decisions during the 1990s that permitted a lower standard for lifting desegregation decrees. Those school districts that remain under court-ordered desegregation decrees may find themselves in conflict with the No Child Left Behind Act's (NCLB) choice provision. Specifically, NCLB permits parents to transfer their children to another school if their present school is deemed in need of improvement. Such NCLB regulations may permit school districts to bypass the desegregation decree. In so doing, there is a conflict between a federal regulation and federal court order.

Employing legal research techniques (e.g., case and statutory analysis), this paper explores the Supreme Court's jurisprudence for declaring a school district unitary, analyzes the conflict between court-ordered desegregation decrees and NCLB's choice provision, and discusses the potential litigation that could result from the conflict between NCLB and desegregation decrees. doi:10.1300/J467v01n03_08     

A comparative criticism of Hugh Blair's essay on taste

This essay surveys key decisions on libel handed down by the United States Supreme Court and the resulting distinction between private persons and public officials/public figures. A corresponding distinction in treatment of the two categories with respect to proof of defamation is also examined. Criticism of the Court's position is offered and a change in policy is recommended.     

Judicial Splits: The Supreme Court’s New Message for Education

When the Supreme Court pronounces on race and education it makes headlines. On 28 June 2007 the Supreme Court revealed its long-anticipated decisions on Parents Involved in Community Schools v. Seattle School District No. 1 and Meredith v. Jefferson County, proving that maneuvering the minefield of America’s race relations is just as difficult and divisive as it has ever been. In this carefully constructed essay, George R. La Noue examines the details of these cases and the implications of their decisions on K–12 and higher education. The future role of race in admissions, scholarships, hiring, classes, housing, recruiting, and contracting are all discussed. Facts may be stubborn things, but for some justices constitutional law seems to be infinitely malleable. Divisions in the Supreme Court place increased importance on state constitutional initiatives. Professor La Noue warns that from a political standpoint, Americans need to reaffirm our core value that individuals have the right not be discriminated on the basis of race.