CURRENT LITERATURE

PUBLICATIONS, July 1977–June 1978

PATRICIA R. EVANS and ROGER F. JACOBS

This year's survey, reporting on the publication of eighteen titles, shows a reverse, albeit slightly, of the downward trend in the production of books about the Court noted in the 1978 YEARBOOK. It is somewhat difficult to establish a meaningful subject matter dichotomy for the eighteen titles published during this period. For example, although six titles relate to the biography or judicial philosophy of one or more justices the Jacobsohn book, concerning itself with the theory of Supreme Court decision-making generally, still contains a significant enough treatment of Justice Frankfurter's philosophy to class the title as biographical. The First Hundred Justices is also unique in its compendium of statistics about the justices. Five titles are studies of individual or collective cases. These range from the comprehensive treatment of the steel seizure case by Marcus to the long polemic essay on the abortion cases by Melvin. The Wasby book might be characterized as a case study but it is in truth much more. Thus it would be classed with a group of four books which concern themselves with either the appropriate Constitutional role for the Court or how in fact the Court's decisions impact upon various groups. Finally, three titles, because of the rudimentary approach to their subject, would be placed in a class of books attempting to meet the needs of students unfamiliar with basic court history, organization or practice. Because this classification is so unimpressive and arbitrary, and because so few titles were published, a strict alphabetical order arrangement was chosen for this survey.

Arnold, Otto Carrol. Religious Freedom on Trial. Valley Forge, Pa.: Judson Press. 1978 112 pages.

Examining Supreme Court decisions in the areas of church-state relationships, this book attempts to review the pertinent decisions, place them in historical perspective and examine the problem of evaluating issues affecting individual consciences.

Berger, Raoul. Government by Judiciary: the Transformation of the Fourteenth Amendment Cambridge, Mass.: Harvard University Press. 1977. 483 pages.

Arguing that the Court is to police the boundaries of the Constitution and not serve as a non-elected legislative body, Berger's work has attracted no small amount of attention. The book takes the position that the Court is bound by the original intention of the Constitution's Framers, because the greatest security for a consistent and stable government is the faithful exercise of its powers. After analyzing relevant historical records Berger concludes that the Framers of the Fourteenth Amendment did not intend that it reach either suffrage or segregation and for the Court to interpret otherwise is to rewrite the Constitution. In his view, however, the Court has done just that and in rewriting it has acted outside its grant of power. He urges that the Court should either desist from these practices or the people should expressly approve of "government by the judiciary."

Berkson, Larry Charles. The Supreme Court

and its Publics: the Communication of Policy

Decisions. Lexington, Mass.: Lexington Books. 1978. 145 pages.

This book is a study of communications theory as applied to the process of Supreme Court decision-making specifically as the opinions of the Court are communicated to the public. Limiting itself to Florida, the study uses questionaires to survey ten groups directly affected by Supreme Court decisions. Among these groups are policemen, school teachers, moviehouse operators, etc. Berkson collects data on the sources from which these various groups obtain what they consider to be reliable information about decisions of the Court. A final recommendation of the study is that the Supreme Court Public Information office expand its services to the publics which are not adequately served by the present communication system.

Berry, Mary Frances. Stability, Security, and Continuity: Mr. Justice Burton and Decision-making in the Supreme Court, 1945-1958. Westport, Conn.: Greenwood Press. 1978. 286 pages.

Presenting a chronological treatment of Justice Burton's years on the Court, this book portrays him as "a quiet, unassuming, competent, Although many contemporaries and historians have assessed Burton as mediocre, Berry portrays him as "a quiet, unassuming, competent, lawyers judge." The study relies heavily on the Burton papers.

Blaustein, Albert P. and Roy M. Mersky. The First One Hundred Justices Statistical Studies on the Supreme Court of the United States. Hamden, Conn.: Archon Books. 1978. 210 pages.

This title offers a statistical compendium of materials relating to the first one hundred justices and those nominated but who did not serve. Part one contains interesting statistics such as the geographical distribution, religion, and length of service of the Justices. Part two reports the findings of a survey of academics as to their view of the quality of the first one hundred Justices. Part three considers factors in the selection of capable justices. Part four is a discussion of those nominated but who never served and part five counts the opinions of the Court and reports on the relative productivity of selected justices. The appendix consists of eleven tables of varying utility, but in this age of quantification, surely someone will find a use for each one. This is a useful research tool of interest to the serious Supreme Court scholar.

Galloway, John. ed. Criminal Justice and the Burger Court. New York: Facts on File. 1978. 231 pages.

This is a survey of the Burger Court and criminal justice prepared in the same manner as the earlier study of the Warren Court and criminal law. The cases selected for inclusion here illustrate how the Burger Court has held the line or retreated from the decisions of the Warren Court in the area of criminal law. Particular attention is given to the Burger pre-trail identification procedures and the use in court of illegally seized evidence. The summary discussion of the Court's major concerns and the inclusions of abridged opinions suggest a work aimed at providing the uninitiated with an overview of the Burger Court's attitude toward criminal law.

Cullen, Charles T. and Herbert A. Johnson, editors. The Papers of John Marshall, Vol. II. Chapel Hill, N.C.: University of North Carolina Press. 1977. 547 pages.

Vol. II of the papers of John Marshall covers the years 1788-1795, a period of Marshall's life dominated by a concern with the practice of law. Every document written or signed by Marshall between July 1788 and 1795 is either printed, summarized in a calendar entry, or listed in this volume. According to the editor, more than 90 percent of the documents presented here have never appeared in print. During these seven and half years, Marshall declined offers of federal office in order to limit his activities to the Richmond area and maintain his legal practice before the state courts. Because of his involvement in Virginia, the papers, correspondence and account book presented here offer, in addition to insight to Marshall as a lawyer, a source for new information on the practice of law in Virginia and the legal system of the period.

Earyl, Stephen Tyree. Constitutional Courts of the United States: The Formal and Informal Relationships Between the District Courts, the Courts of Appeals, and the Supreme Court of the U.S. Totowa, N.J.: Littlefield, Adams. 1977. 184 pages.

Constitutional Courts of the U.S. provides an overview of the U.S. Federal Court system with attention give to actual operation of the District Court, Court of Appeals and Supreme Court. Early examines the ways in which the national court system works as a system and also as autonomous units. Each of the various components has an institutional and a human dimension which in turn affects the formal and informal aspects of judicial operation. The author is frustrated by the grand silence of the national judiciary and is forced to rely on biographies and studies of judicial process. Discussion of intercourt relationships, with particular emphasis on inferior courts, is the major coverage of this non-technical book written from a political science perspective.

Ginger, Ann Fogan. The Law, the Supreme Court and People's Rights. Completely Revised. Woodbury, N.Y.: Barron's 1977. 716 -pages.

Although this work is not original this year the assertion that it is completely revised as well as the fact that the 1974 edition was not cited in earlier Yearbooks prompts this mention. Ginger provides a description of human rights cases which reached the Court while Earl Warren was Chief Justice. She groups her cases around the First, Fifth and Fourteenth Amendments. Her writing is not aimed at the knowledgeable lawyer or scholar but rather at a readership which is more interested in the factual backgrounds of the cases than the complete decisions of the Court.

Hamilton, Virginia Van Der Veer. ed. Hugo Black and the Bill of Rights: Proceedings of the First Hugo Black Symposium in American History on "The Bill of Rights and American Democracy." Alabama: University of Alabama Press. 1978. 104 pages.

This is the publication of the proceedings of the First Hugo Black Symposium in American history. Included are an introduction discussing Justice Black's ties to Alabama, a dedicatory address by Chief Justice Warren Burger, and papers by Leonard Levy on the Fifth Amendment, Donald Meiklejohn on Freedom of Speech, Paul Freund on Freedom of Religion and remarks by Max Lerner upon the dedication of the site of the future Hugo Black Library in the Justice's home town of Ashland, Alabama.

Jacobsohn, Gary J. Pragmatism, Statesmanship, and the Supreme Court. Ithaca, N.Y.: Cornell University Press. 1977. 214 pages.

This book is an attempt to illuminate "statesmanship" in the judicial context by inquiring into the pragmatic school of jurisprudential thought. Jacobsohn proposes that when faced with the dual tension of the power of the Court resting upon public opinion as set against the idea of complete independence of the courts, the statesmanlike judge adapts the constitution to the changing social situations while leaving the document unaltered. The author argues that the pragmatic movement in American jurisprudence has attempted to balance the law and the needs of a society in rapid transition. To illustrate the application of pragmatic principles to constitutional interpretation, one chapter is devoted to an analysis of the "pragmatic" and "statesmanlike" qualities of the opinions in the reapportionment controversy. Several chapters examine Justice Frankfurter's judicial philosophy concluding with the view that contrary to the standard interpretations, Frankfurter should not be classed as a judicial pragmatist.

Marcus, Maeva. Truman and the Steel Seizure Case; The Limits of Presidential Power. New York: Columbia University Press. 1977. 390 pages.

This study examines the history and significance of the events and litigation leading up to the Supreme Court decision in Youngstown Sheet & Tube Co. v. Sawyer which invalidated Truman's seizure of the steel mills in 1952. By closely examining the individual opinions of the justices, as well as other factors related to the President, the parties and the public, Marcus concludes that although the broad language of the courts opinion suggests that the holding was simple and sweeping, this was not the case. This work also analyzes the steel seizure case as it influences the doctrine of separation of powers and the theory and practice of presidential power. Extensive notes and bibliography.

Marquardt, Dorothy A. A Guide to the Supreme Court. Indianapolis: Bobbs-Merrill. 1977. 132 pages.

This is a short general treatment of the function and history of the Supreme Court directed to the young reader. The largest sections are devoted to short biographies of the Chief Justices, the briefest summaries of landmark decisions (no citations) and appendices which reprint the constitution and a table of the associate justices.

Mason, Ed. Chief Justices of the United States. Columbus, Ohio: Dispatch Printing Co. 1977. 178 pages.

This book, written in a style appropriate for student use, is part of a series endorsed by educators in fifty-five different school systems. Basic information about the Court, its history and operation is provided. Biographical sketches of the Chief Justices as well as summaries of selected leading cases are also offered. It lacks both a table of contents and an index.

Melvin, Edward J. The Legal Principles of the Founding Fathers and the Supreme Court. Jenkintown, Pa.: Pro Life Coalition of Pennsylvania. 1977. 36 pages.

This polemic essay offers a survey of the historical background of the pro-abortion decisions handed down by the Court in 1973 and 1976. Includes notes but no index.

Shriver, Harry Clair. What Justice Holmes Wrote; and What has been Written about Him: A Bibliography, 1866–1976. Potomac, Maryland: Fox Mills Press. 1978. 67 pages.

This bibliography covers the period 1866-1976. Entries are confined to Holmes' own writings and those relating directly to him. The arrangement is by form with books and imprints of Holmes' writings in the first section and periodical literature in the second. The publication is limited to 400 copies making general availability questionable.

Tarr, George Alan. Judicial Impact and State Supreme Courts. Lexington, Mass.: Lexington Books. 1977. 184 pages.

This political science study looks at the variation in response of state Supreme Court judges to U.S. Supreme Court decisions concerning the establishment of religion. Although the author asserts that a substantial body of literature has studied the general import of these decisions his work here is the first to focus on comparative judicial responses.

Wasby, Stephen L., Anthony D'Amato and Rosemary Metrailer: Desegregation from Brown to Alexander: An Exploration of Supreme Court Strategies. Carbondale: Southern Illinois University Press. 1977. 489 pages.

Desegrgation from Brown to Alexander is a study of the use of strategy by the Supreme Court in its policy making role. The authors, representing the fields of law and political science, use the racial desegregation decisions to examine among others, the judicial techniques of case selection, delay, summary disposition, and percurium rulings. The study makes good use of the often overlooked oral arguments as a resource for research on the Court and relates the content of argument to the resulting decision of the case. From this analysis cases are seen as products of the systematic development from briefs to oral argument to decision rather than as isolated documents reflecting judicial policy-making.

 

PERIODICALS

The list of periodical articles about the Court that follows is selective. The compilers are conscious that the bibliographic tools used in preparing this survey may list case notes and other articles under the specific subject of the article and not under the major heading "Supreme Court". Investigating every possible subject for Court related articles would require more time than is presently available. Moreover, many news stories and one page essay articles were omitted purposefully. Consequently this survey is not comprehensive in nature. Notwithstanding this limitation, this list, it is hoped, is suggestive of the quantity and range of periodical articles about the Court.


Supreme Court and the Constitution

Bills of attainder: a study of amendment by the Court. R. Berger, Cornell Law Review. 63: 355-404. March, 1978.

Constitutional review: Supreme Court. 1976-77 term. M. Lehmann. Hastings Constitutional Law Quarterly. 5: 61-419. Winter, 1978.

Delimiting religion in the Constitution: a classification problem. A. Bowser. Valparaiso University Law Review. II: 163-226. Winter, 1977.

Has the Supreme Court abandoned the Constitution? L. McDonald. Saturday Review. 4:10-12±. May 28, 1977.

In defense of justice: some thoughts on reading Professor Mendelson's "Mr. Justice Douglas and government by the judiciary." S. Goldman. Journal of Politics. 39: 148-65. February, 1977.

Reason and the fourth amendment–the Burger court and the exclusionary rule. Fordham Law Review. 46: 139-75. October, 1977.

Supreme Court and the constitutional rights of prisoners: a reappraisal. F. Calhoun. Hastings Constitutional Law Quarterly. 4: 219-47. Spring, 1977.

The new judicial federalism. L. Weinberg. Stanford Law Review. 29: 1191-1244. July, 1977.

The Burger Court

Access to the federal courts: a symposium. Rights without remedies: the Burger court takes the federal courts out of the business of protecting federal rights. A. Morrison; Standing and the Burger court: an analysis and some proposals for legislative reform. R. Sedler; Equal protection and the poor. A. House-man. Rutgers Law Review. 30: 841-906. Summer, 1977.

Blacks and the Burger Court: the case of the narrowing path to justice. R. C. Maynard. Black Enterprise. 8: 31-2+. March, 1978.

Burger court and searches incident to a lawful arrest: the current perspective. P. W. Lewis. H. W. Mannle. H. F. Allen. Capital University Law Review. 7:1-23. 1977

Burger's Court feathers its nest. R. Sherrill. Nation. 226: 750-3. June 24, 1978.

Certain conservatism or mixed surprise? Civil liberties in the Burger Court, 1976-1977. S. L. Wasby. Civil Liberties Review. 4:33-51 November/ December, 1977.

Growing enigma of the Burger Court. D. F. Pike. U.S. News. 85: 23-4. July 17, 1978.

The Nixon Court: a study of leadership. C. LeVar. Western Political Quarterly. 30: 484-92. December, 1977.

Optimism is not warranted: the fate of minorities and the economically poor before the Burger Court. I. Reid. Howard Law Journal. 20: 346-73. 1977.

Poverty of justice: the Burger Court and the poor. J. Bolner. C. L. Eubanks. Capital University Law Review. 7: 35 1-83. 1978.

 

The Justices

Great Presidents, Great Justices? R. Funston. Presidential Studies Quarterly. 7: 19 1-99. Fall, 1977.

The logic of experience: Oliver Wendell Holmes on the Supreme Judicial Court. M. Tushnet. Virginia Law Review. 63: 975-1052. October, 1977.

Supreme Court in retreat: wealth discrimination and Mr. Justice Marshall. M. L. Levy. Texas Southern University Law Review. 4: 209-42. 1977.

Tom C. Clark: the Justice as administrator. D. Dorm. Judicature. 61: 271-77. January, 1978.

 

The Operations of the Court

Appellate jurisdiction of the Supreme Court: reflections on the Jaw and the logistics of direct review. H. Wechsler. Washington & Lee Law Review. 34: 1043-64. Fall, 1977.

Caseload of the Supreme Court: 1975 and 1976 terms. G. Casper, R. A. Posner. Supreme Court Review. 1977: 87-98. 1977.

Clerking for the Supremes. S. Kaplan. New Republic. 177: 25-6. October 15, 1977.

The hidden face of the Supreme Court. G. Elsasser. Chicago Tribune Magazine. 18-19+. April 23, 1978.

Intermediate National appellate court: solution or diversion? Villanova Law Review. 22: 1022-41. August, 1977.

National court of appeals. C. Wiggins. Trial. 13: 36-9. November, 1977.

Role and the experiences of Supreme Court law clerks: an annotated bibliography. Law Library Journal. 70: 338-42. August, 1977.

Rolling back the top on Chief Justice Burger's opinion assignment desk. D. Haines. University of Pittsburgh Law Review. 38: 63 1-95. Summer, 1977.

Thinning the judicial thicket: further possible steps to meet the continuing caseload problem. K. W. Patterson, Federal Rules Decisions. 74: 477-96. August, 1977.

 

Decisions of the Court

Changing trends in antitrust doctrines: an unprecedented Supreme Court -term–1977. M. Handler. Columbia Law Review. 77: 979- 1028. November, 1977.

Cold war justice: the Supreme Court and the Rosenbergs. M. E. Parrish. American Historical Review. 82: 805-42. October, 1977.

Coming of age of the Burger court: labor law decisions of the Supreme Court during the 1976 term. H. T. Edwards. Boston College Law Review. 19: 1-99. November, 1977.

The commerce clause since National league of cities. D. Whitman. Business Law Review. 10: 46-53. Fall, 1977.

Confusion worse confounded: -the Supreme Court and obscenity law. New York University Law Review. 52: 820-59. October, 1977.

The constitutional status of capital punishment: an analysis of Gregg, Jurek, Roberts, and Woodson. L. S. Tao. Journal Urban Law. 54: 345-66. Winter, 1977.

Contemporary Supreme Court directions in civil liberties. R. I. Steamer. Political Science Quarterly. 92: 425-42. Fall, 1977.

Criminal waiver, procedural default and the Burger court. R. S. Spritzer. University of Pennsylvania Law Review. 126: 473-514. January, 1978.

Finality rule for Supreme Court review of state court orders. Harvard Law Review. 91: 1004-32. March, 1978.

An independent right to freedom of association. R. Raggi. Harvard Civil Rights–Civil Liberties Law Review. 12: 1-30. Winter, 1977.

Inside the great campaign finances case of 1976: a conversation with Ira Glasser. Civil Liberties Review. 4: 8-19. September/October, 1977.

Legitimizing segregation: the Supreme Court's recent school desegregation decisions. I. Bannon. Civil Rights Digest. 9: 12-17. Summer, 1977.

Of lines and men: the Supreme Court, obscenity, and the issue of the avertable eye. N. W. Proviser. Tulsa Law Review. 13: 52-81. 1977.

Litigant access doctrine and the Burger court. T. E. Yarbrough. Vanderbilt Law Review. 31: 33-70. January, 1978.

Mandatory jurisdiction of the Supreme Court– some recent developments. M. Tushnet. University of Cincinnati Law Review. 46: 347-71. 1977.

Miranda doctrine in -the Burger court. G. R. Stone. Supreme Court Review. 1977: 99-169. 1977.

Precedential effect of summary affirmances and dismissals for want of a substantial federal question by the Supreme Court after Hicks v. Miranda and Mandel v. Bradley. Virginia Law Review. 64: 117-43. February, 1978.

Pronouncements of the Supreme Court of the United States in the criminal law field during the 1976-1977 term. W. H. Erickson. National Journal of Criminal Defense. 3: 1-84. Spring, 1977.

A search for sanity in antitrust. W. Guzzardi Fortune. 97: 72-5+. January 30, 1978.

Schwinn's swan song. M. Metzger. Business Horizons. 21: 52-6. April, 1978.

Standing to sue to challenge violations of the Williams act. E. Aranow, and others. Business Lawyer. 32: 1755-69. July, 1977.

State constitutional guarantees and Supreme Court review: Justice Marshall's proposal in Oregon v. Hass. P. J. Galie, L. P. Galie. Dickinson Law Review. 82: 273-93. Winter, 1978.

Supreme Court and illegitimacy: 1968-1977. R. L. Stenger. Family Law Quarterly. 11: 365-405. Winter, 1978.

Supreme Court on privacy and the press. W. E. Lee. Georgia Law Review. 12: 215-47. Winter, 1978.

The Supreme Court 1976 term; foreword: Equal citizenship under the Fourteenth amendment. K. L. Karst. Harvard Law Review. 91: 1-301. November, 1977.

Supreme Court review, 1977. Foreword–doctrinal doldrums: the Supreme Court 1976 term criminal law decisions. B. J. George. Journal of Criminal Law 68: 469-642. December, 1977.

Supreme Court's trimming of the section 10 (b) tree: the cultivation of a new securities law perspective. Journal of Corporation Law. 3: 112-46. Fall, 1977.

Title VII, seniority, -and the Supreme Court: clarification or retreat? J. E. Jones. Kansas Law Review. 26: 1-60. Fall, 1977.

United States Supreme Court decisions affecting State and Local governments [1976]. Popular Government. 42: 1-56. Winter, 1977.

Women, equtlity, and the Bakke case. R. Ginsburg. Civil Liberties Review. 4: 8-16. November/December, 1977.

Workers' Sabbath: religious belief and employment. L. Pfeffer. Civil Liberties Review. 4: 52-6. November/December, 1977.

Court Miscellany

Are we ready for the truth in judging. W. Forrester. American Bar Association Journal. 63: 1212-16. September, 1977.

Capital punishment in the states: prospects for the future. Knight. Virginia Social Science Journal. 12: 6-13. November, 1977.

Children's images of the Supreme Court: a preliminary -mapping. G. A. Caldeira. Law & Society Review. 11: 851-71. Summer, 1977.

Equal justice under law. W. Swindler. American Bar Association Journal. 63: 1099-1 104. August, 1977.

Fate of arbitration in the Supreme Court: an examination. G. W. Moss. Loyola University Law Journal. 9: 369-95. Winter, 1978

Judges judge the Supreme Court. G. A. Caldeira. Judicature. 61: 208-19. November, 1977.

Longitudinal look at court structure 1916-1969.

R. Handberg. Capital University Law Review. 7: 385-96. 1978.

NAACP and the Supreme Court: Walter F. White and the defeat of Judge John J. Parker, 1930. D. C. Hine. Negro Historical Bulletin. 40: 753-7. September, 1977.

Trends in the United States Supreme Court's use of the ripeness doctrine in free speech and association cases: a comparison with Canadian trends. B. Child. Case Western Reserve Journal of International Law. 10: 415-68. Spring, 1978.

The Supreme Court and the electoral process. V. Earle and C. Earle. World Affairs. 140: 25-40. Summer, 1977.

The Supreme Court of the United States: a bibliographical essay. A. Miller. A American Studies International. 16: 5-14. Winter, 1977.

Supreme Court's bronze doors. D. Mason. American Bar Association Journal. 63: 1395-9. October, 1977.