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Gideon'S Ghost: Providing The Sixth Amendment Right To Counsel In Times Of Budgetary Crisis, Heather P. Baxter
Gideon'S Ghost: Providing The Sixth Amendment Right To Counsel In Times Of Budgetary Crisis, Heather P. Baxter
Faculty Scholarship
This Article discusses how the budget crisis, caused by the recent economic downturn, has created a constitutional crisis with regard to the Sixth Amendment Right to Counsel. The landmark case of Gideon v. Wainwright required states, under the Sixth Amendment, to provide free counsel to indigent criminal defendants. However, as a result of the current financial crisis, many of those who represent the indigent have found their funding cut dramatically. Consequently, Gideon survives, if at all, only as a ghostly shadow prowling the halls of criminal justice throughout the country.
This Article analyzes specific budget cuts from various states and …
Introductory Remarks: The Relationship Of Law And Morality In Respect To Constitutional Law, William W. Van Alstyne
Introductory Remarks: The Relationship Of Law And Morality In Respect To Constitutional Law, William W. Van Alstyne
Faculty Scholarship
This article explores the consequences of a Constitution not entirely aligned with moral law. These remarks encourage all legal minds to acknowledge such gaps when they are found, although there are a variety of ways in which such acknowledgment may take shape.
Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler
Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler
Faculty Scholarship
Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a claimant …
Rights And Rules: An Overview, Matthew D. Adler, Michael C. Dorf
Rights And Rules: An Overview, Matthew D. Adler, Michael C. Dorf
Faculty Scholarship
No abstract provided.
Rights, Rules And The Structure Of Constitutional Adjudication: A Response To Professor Fallon, Matthew D. Adler
Rights, Rules And The Structure Of Constitutional Adjudication: A Response To Professor Fallon, Matthew D. Adler
Faculty Scholarship
Constitutional doctrine is typically rule-dependent. A viable constitutional challenge typically hinges upon the existence of a discriminatory, overbroad, improperly motivated, or otherwise invalid rule, to which the claimant has some nexus. In a prior article, Prof. Adler proposed one model of constitutional adjudication that tries to make sense of rule-dependence. He argued that reviewing courts are not vindicating the personal rights of claimants, but rather are repealing or amending invalid rules. IN a Commentary in this issue, Professor Fallon now puts forward a different model of constitutional adjudication, equally consistent with rule-dependence. Fallon proposes that a reviewing court should overturn …
Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler
Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler
Faculty Scholarship
Constitutional rights are conventionally thought to be "personal" rights. The successful constitutional litigant is thought to have a valid claim that some constitutional wrong has or would be been done "to her"; the case of "overbreadth," where a litigant prevails even though her own conduct is permissibly regulated, is thought to be unique to the First Amendment. This "personal" or "as-applied" view of constitutional adjudication has been consistently and pervasively endorsed by the Supreme Court, and is standardly adopted by legal scholars.
In this Article, I argue that the conventional view is incorrect. Constitutional rights, I claim, are rights against …
Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann
Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann
Faculty Scholarship
This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.1 In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. 2 Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, 3 thus settling a controversial …