This essay will perform a critical review of several scholarly articles on American public law and section 8 of the 1937 Housing Act. D'Amato's essay will be the first to be evaluated. (2010). The piece primarily discusses how legal theories impact judicial decisions. The theory ideology that legal theory fails to restrain practice is the focus of this piece, which aims to present a paradoxical approach to it. The author derives this notion from Stanley Fish, a researcher, and he tries to elaborate on it. D' Amato (2010) recaps the manner with which legal texts in the early years placed reliance on case law as opposed to theory. A sharp contrast is drawn in the contemporary world where law students are mainly taught a lot of theory and very little case law. The hypothesis that is drawn is that the decisions that judges make are not influenced by legal theory. In order to investigate this theory, the author looked a number of cases where a theory "X" for the purpose of his discussion was applied in case C and the person relying on it wins. The same theory "X" was subsequently applied in a different set of facts all together in Case D and the person who adduced it wins. Therefore the author inferred that indeed theory cannot constrain practice.
The author employed an analytical approach in dealing with the subject matter of the study he was advancing. The analytical strategy employed was the use of questions and this influences the scholar to go on a fact-finding mission that enhances the areas of his research that would not have been covered by the hypothesis. He did this by highlighting some of the divergent schools of thought that relate to the hypothesis. He started off by stating the naturalists’ point of view on the relationship between theories and the practice of law. Thereafter he highlighted the positivists’ views on the subject matter as he drew various comparisons.
The evidence the author relies on, adequately corroborates the hypothesis he made. He stated that a thorough look at the judicial decisions can formulate a pattern for the determination of cases. This is what is often referred to as precedence or case law. The author nonetheless highlighted the need for scholars of law to be cognizant of the fact that theory does not explain the pattern (precedence) that is arrived but the pattern can give rise to the theory. The author's concluding remarks highlighted the hallmark of the practice of law as being a means of showcasing the theories that are evident in the specific case that has been brought before the court or other legal authority as opposed to being a conduit to stipulate all the theories that explain the matter.
It seems that the idea of forming a hypothesis before commencing the study limited the authors’ scope of thinking to judicial decisions. This leads to rather inconclusive findings. The paper focused solely on secondary sources of information and this often leads a scholar to be confined by findings that were arrived at by other scholars. Incorporation of primary sources and using the secondary sources as a means of corroboration would have been a better approach.
Friedman (2009) discusses a historical perspective of one of the fundamental constitutional issues relating to access to justice. He adduces various definitions of the term in relation to various legal scenarios. The most acceptable definition is that the term refers to the availability of fair and expeditious judicial system where a person can rely on when their rights or freedom are infringed. The article states that the access to justice and access to information are closely interrelated legal terminologies that often have to accompany each other. The author stated that access to justice is more of a procedural measure as opposed to a substantive one. He inferred to the dissenting statement by Scalia J. in Re. Davis, 130 S. Ct. 1, 3 (2009) who stated that it was valid to execute an innocent man as long as he has had a fair trial. This position by the Supreme Court seems to place much emphasis on the procedure as opposed to the substance and this often has far-reaching ramifications within the society.
The author traces the history of access to justice to the colonial courts that were present in the early years. The courts were literally accessible to the general public and anyone who was of the age of majority could be allowed to bring their issues before the courts for determination. The author notes that over the years, the legal system has been tailored to improve the access to justice for all. The focus had been on empowering the underprivileged people in the society. The social changes in the society also necessitated the need to come up with laws that could give the necessary remedies to the aggrieved parties. The article traces the history of access to justice from two angles. The first one is the civil aspect of the law and the second one is the criminal aspect. This distinction is important since the concept operates differently in both facets of the law.
The article ponders on the limits that actually constitute access to justice. Friedman (2009) wonders whether the legal regime should entertain all claims so as to resort to legal action. He further notes that most suits that are filed are usually of some great magnitude or else parties could take advantage and bombard each other with multiple lawsuits for negligible claims. Access to justice in criminal cases is seen to be enshrined on the principle of fair hearing. The accused person in a criminal case is required to be accorded the appropriate legal protection by the state in the event that the crime they committed was a serious one. That was the position that was held by the court in Gideon vs. Wainwright, 372 U.S. 335, 345 (1963) when they acquitted an accused who was not given legal representation. In conclusion, it is noted that there are various divergent views on access to justice which are premised in both the civil and criminal justice regimes. The underlying factor is that access to justice is a fundamental concept that can prejudice a person's case. Therefore the courts of law have a mandate to guard it jealously.
Rolle (2009) sought to highlight the negative ramifications that section 8 has on the places where it is applicable. The article highlights that the housing crisis in the United States was as a result of the 1920s Great Depression that rocked the economies of the world. This caused a tremendous decline in the economy and led to retrenchment of workers and winding up of many businesses. It further led to the loss of houses for the vast majority of the people who had taken mortgages and had been paying for them with their salaries. The money lenders had to take possession of the houses rendering many households homeless.
The government in 1937 enacted the United States Housing Act in order to remedy the looming housing crisis within the country. Initially, the houses were managed by the Public housing Authorities but later diversified to incorporate houses that were privately owned. This led to the emergence of Section 8 of the tenant-based program after section 23 set the foundation for the inception of the private houses.
This paper conducted a case study topology which incorporated a descriptive analysis of secondary sources of information to come up with the relevant findings. The case study was the most suitable research methodology to highlight the effects of section 8 in the United States. The data was represented using tables which were the most appropriate method to highlight the statistical relationships between the variables. The article arrived at a number of conclusions that could be seen to reiterate the findings and the discussion that was conducted. The author notes that section 8 has failed in undertaking the sole mandate that it sought to serve. It has instead increased the levels of poverty within the country to considerable levels. Finally, the author states that the participants in the housing program often lead to an increase in social issues and poverty levels.
References
D'Amato, A. (2010). The Effect of Legal Theories on Judicial Decisions. Northwestern
University School Of Law Scholarly Commons, 1-8. Retrieved from http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/82
Friedman, L. (2009). Access to Justice: Some Historical Comments. Fordham
Urban Law Journal, 37(4), 3-14. Retrieved from http://ir.lawnet.fordham.edu/ulj
Rolle, T. (2009). Section 8 Tenant-Based Housing Assistance Program: A Case Study of the
Negative Effects of the Program on Participating Communities (Master of Public Administration). Kennesaw State University.
