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Courts Over Time - A Survey of Theories and Research (From Empirical Theories About Courts, P 9-50, 1983, Keith O Boyum and Lynn Mather, ed. - See NCJ-90490)

NCJ Number
90491
Author(s)
L M Friedman
Date Published
1983
Length
42 pages
Annotation
Although modern courts have moved away from formalism and legalism and toward substantive rationality, courts are now more legalistic in some ways.
Abstract
Courts take the rights of criminal defendants more seriously than 100 years ago. As a result, a massive, technical body of rules exists regarding the rights of the accused. However, for over 90 percent of criminal defendants, rights are limited and bypassed in reality. In addition, most civil cases are routine. In the United States, the courts have generally evolved away from the style of a closed system, which relies on a finite and fixed set of premises, toward a more open system. Nevertheless, some subsystems may be moving in the opposite direction, as indicated by the efforts to control official discretion through more and tighter rules. Moreover, the Supreme Court manages to combine substantive rationality, responsiveness, and adherence to the closed set of premises contained in the Constitution. All the courts constantly experience social influence, including that from legislative bodies. The activism demonstrated by some courts is parallel to the even greater extension of power and range by government in general. Over the years, the dividing line between the public and private domains has blurred, along with the distinctions between law and nonlaw. Nevertheless, the courts continue to be powerful institutions. A total of 23 notes are given.

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