Law Commons^™

A "Mere Shadow" Of A Conflict: Obscuring The Establishment Clause In Kennedy V. Bremerton, Ann L. Schiavone

Duquesne Law Review

In Kennedy v. Bremerton School District,¹ the Roberts Court continued its move to carve out larger spaces for religious practice and expression in public spheres.² But in so doing it left lower courts and school districts with many more questions than answers concerning what the Establishment Clause means and what it requires of them. Can school districts still protect students from religious coercion by teachers, classmates, and others? Are entanglements between church and state or the appearance of endorsement no longer problematic?³ Should the individual history and tradition of schools and communities influence decision making on …

An Alternative To The Independent State Legislature Doctrine, Ledewitz Bruce

Duquesne Law Review

One of the most momentous actions taken by the United States Supreme Court in the last term was not deciding a case but granting review at the end of the term in Moore v. Harper, the North Carolina congressional redistricting case.¹ This is the case in which the Supreme Court appears likely to adopt some version of the Independent State Legislature Doctrine (Doctrine). In this essay, I will describe the actual case and the Doctrine. But I will also be offering an alternative to the Doctrine, one that I believe achieves some of the goals that the Justices …

The Death And Resurrection Of Establishment Doctrine, Gerard V. Bradley

Duquesne Law Review

Lead Article

The biggest news of the Supreme Court's 2021-22 term was the Court's "abandonment" of Lemon v. Kurtzman as the default test for Establishment Clause jurisprudence. For a full half-century, Lemon v. Kurtzman defined what our constitutional separation of church and state meant. But now the Court has definitively laid it to rest. The important question of church-state relations stands at a strategic fork in the road that the Court has not faced since 1962, and perhaps not since 1947. Justice Gorsuch complained that Lemon demonstrably failed as law. That it was a judicial tool that flopped by every …

Let The Right Ones In: The Supreme Court's Changing Approach To Justiciability, Richard L. Heppner Jr.

Duquesne Law Review

In last term's blockbuster case Dobbs v. Jackson Women's Health Organization, one of the considerations Justice Alito cited for overturning Roe and Casey was that they "have led to the distortion of many important but unrelated legal doctrines."¹ Alito asserted that abortion jurisprudence has, among other things, "ignored the Court's third-party standing doctrine."² Whether that is a fair description of the case law is debatable. But it raises the question of whether the newly ascendant conservative majority might likewise distort standing doctrine, and other justiciability doctrines, in order to decide particular, controversial issues.

Applying Bentham's Theory Of Fallacies To Chief Justice Robert's Reasoning In West Virginia V. Epa, Dana Neacsu

Duquesne Law Review

There are two issues in West Virginia v. EPA.¹ One regards justiciability, and the other delegation. Article III of the Federal Constitution limits justiciability to controversies, to disputes involving an injured party whose harm the judiciary believes it can remedy. The Constitution is silent on delegation.

This Essay summarizes the Court's decision in West Virginia v. EPA.² It also analyzes Chief Justice Roberts' reasoning and addresses the case's flaws from two perspectives. It references the Court's decision connecting it to the so-called New Deal Cases,³ because in both Panama Refining Co. v. Ryan,^{4 …}

Foreword: New Supreme Court Cases: Duquesne Law Faculty Explains, Wilson Huhn

Duquesne Law Review

During the 2021-2022 Term, the United States Supreme Court issued several groundbreaking opinions that fundamentally changed the interpretation of the Constitution in a number of areas, including freedom of religion under both the Free Exercise Clause and the Establishment Clause; reproductive freedom and the Right to Privacy; and justiciability, administrative law and the Separation of Powers. The Court also granted certiorari in another case that may have an enormous impact on our representative democracy and the right to vote in federal elections.

Privacy: Pre- And Post-Dobbs, Rona Kaufman

Duquesne Law Review

The United States Supreme Court has interpreted the Due Process Clause of the Fourteenth Amendment to include a fundamental right to familial privacy. The exact contours of that right were developed by the Court from 1923 until 2015 and included: (1) the right to parent-that is the right to care, custody, and control of one's children;¹ (2) a qualified right to be safe from forced sterilization;² (3) the right of married couples and single persons to determine whether to bear or beget a child, including the right to access contraception and abortion;³ (4) the right to marry …

Mail-In Voting And The Pennsylvania Constitution, Stephen E. Friedman

Duquesne Law Review

Pennsylvania was at the center of many of the disputes that arose after the hotly contested 2020 presidential election. One of the most significant challenges was a claim that Pennsylvania's newly enacted mail-in voting law violated the state's constitution. Plaintiffs in one lawsuit asked that all mail-in ballots be discarded, which would have shifted Pennsylvania's electoral votes to Donald Trump. When this lawsuit failed, challengers unsuccessfully objected to Congress counting Pennsylvania's electoral votes. A core argument both in court and in Congress was that the Pennsylvania Constitution requires in-person voting except where it specifically provides otherwise. The claim is supported …

The United States Supreme Court Sanctifies The Ministerial Exception In Hosanan-Tabor V. Eeoc Without Addressing Who Is A Minister: A Blessing For Religious Freedom Or Is The Line Between Church And State Still Blurred, Lauren N. Woleslagle

Duquesne Law Review

No abstract provided.

The Confrontation Clause, The Right Against Self-Incrimination And The Supreme Court: A Critique And Some Modest Proposals, David E. Seidelson

Duquesne Law Review

The impact of Supreme Court decisions on fifth and sixth amendment rights of the accused criminal is the subject of Professor Seidelson's most recent quest into the field of constitutional law. Using the Court's most recent decision on the sixth amendment confrontation clause as a vehicle, he examines the development of the clause over the past two decades and concludes that the Court's decisions have rendered the clause virtually coextensive with the hearsay rule. In a second part of the article Professor Seidelson discusses the effect of the Court's refusal to include physical evidence within the scope of the fifth …

Constitutional Law - Commerce Clause - State Taxation Of Interstate Commerce - Supremacy Clause, Comfrey Scott Ickes

Duquesne Law Review

The United States Supreme Court has upheld the constitutionality of the Montana coal severance tax finding that it does not violate the Commerce Clause and that it is not inconsistent with federal legislation.

Commonwealth Edison Company v. Montana, 453 U.S. 609 (1981).

Constitutional Law - Fifth Amendment - Due Process - Equal Protection - Sex Discrimination, Michael B. Sedlock

Duquesne Law Review

The United States Supreme Court has held that enactment of a male-only draft registration requirement does not violate the equal protection component of the fifth amendment due process clause.

Rostker v. Goldberg, 453 U.S. 57 (1981).

Constitutional Law - Racial Discrimination - Thirteenth Amendment, Nicholas D. Krawec

Duquesne Law Review

42 U.S.C. § 1982-The United States Supreme Court has held that the official closing of a public street, resulting in a benefit for the white residents of that street and an inconvenience disparately impacting black residents of a neighboring community, is neither a badge of slavery prohibited by the thirteenth amendment nor an impairment of property interests protected by 42 U.S.C. § 1982.

City of Memphis v. Greene, 101 S. Ct. 1584 (1981).

Constitutional Law - Fifth And Fourteenth Amendments - Privilege Against Self-Incrimination - Procedure In State Criminal Trials - Jury Instructions, Terry J. Trexler

Duquesne Law Review

The Supreme Court of the United States has held that a state criminal trial judge has a constitutional obligation, on a defendant's request, to instruct a jury that no inference of guilt may be drawn from a defendant's failure to testify.

Carter v. Kentucky, 101 S. Ct. 1112 (1981).

Constitutional Law - Mootness - Personal Stake - Class Actions, Thomas F. Smida

Duquesne Law Review

The United States Supreme Court has held that an action brought on behalf of a class may be appealed upon expiration of the named plaintiffs substantive claim even though the class certification has been denied.

United States Parole Commission v. Geraghty, 445 U.S. 388 (1980).

Constitutional Law - Police Power - Equal Protection - Voluntary Deviate Sexual Intercourse Statute, Louis Bader

Duquesne Law Review

The Pennsylvania Supreme Court has held that the Pennsylvania voluntary deviate sexual intercourse statute is beyond the valid exercise of the state's police power and is violative of the equal protection clauses of the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania.

Commonwealth v. Bonadio, 490 Pa. 91, 415 A.2d 47 (1980).

Constitutional Law - Eighth Amendment - Capital Punishment - State Death Penalty Statutes - Procedural Safeguards, Scott T. Redman

Duquesne Law Review

The Supreme Court of the United States has held that the Alabama death penalty statute which prohibited a jury instruction of lesser included offenses in a capital case is unconstitutional because it diminishes the reliability of the guilt determination process, leading to an arbitrary and irrational imposition of the death penalty.

Beck v. Alabama, 447 U.S. 625 (1980).

Constitutional Law - Sixth Amendment - Indigent Criminal Defendants - Right To Assigned Counsel - Misdemeanors, Patricia T. Galvin

Duquesne Law Review

The United States Supreme Court has held that the sixth and fourteenth amendments do not require a state to provide counsel for an indigent defendant charged with a crime for which imprisonment upon conviction is authorized but not imposed.

Scott v. Illinois, 99 S. Ct. 1158 (1979).

Pennsylvania Constitutional Law - Search And Seizure - Right To Privacy - Individual Banking Records, Jane E. L. Miller

Duquesne Law Review

The Pennsylvania Supreme Court has held that the Pennsylvania Constitution protects an individual bank depositor's records from unauthorized police subpoenas when no legal proceedings have been instituted against the individual.

Commonwealth v. DeJohn, 403 A.2d 1283 (Pa. 1979)

Remedies And Damages For Violation Of Constitutional Rights, Frank M. Mcclellan, Phoebe Haddon Northcross

Duquesne Law Review

No abstract provided.

Constitutional Law - Civil Rights Action - Federal Court Review Of State Statutes - Abstention, David C. Levenreich

Duquesne Law Review

The United States Supreme Court has held that federal courts must abstain from intervention into pending state proceedings under the Younger doctrine when the federal plaintiff has an available state court opportunity to raise his federal constitutional claim.

Moore v. Sims, 99 S. Ct. 2371 (1979)

A Review Of Prisoners' Rights Under The First, Fifth, And Eighth Amendments, Judith Ann Mackarey

Duquesne Law Review

No abstract provided.

Constitutional Law - Sixth Amendment - Waiver Of The Right To Counsel, Anthony M. Bittner

Duquesne Law Review

The Supreme Court of the United States has held that an explicit statement of waiver is not necessary to support a finding that a defendant waived the right to remain silent or the right to counsel guaranteed by

Miranda v. Arizona. North Carolina v. Butler, 441 U.S. 369 (1979).

Constitutional Law - The Speech Or Debate Clause And Immunity For Congressional Aides, Louis Leo Brunetti

Duquesne Law Review

The United States Supreme Court has held that the speech or debate clause applies to congressional aides, insofar as the aides conduct would be a protected legislative act if performed by the Member himself; but it does not extend immunity to the Member's aide when testifying before a grand jury about acts done by the Member or himself, if such inquiry does not impinge upon the legislative process, and proves relevant to investigating possible third party crimes.

Gravel v. United States, 408 U.S. 606 (1972).

Constitutional Law - Aliens, John J. Reid

Duquesne Law Review

The United States Supreme Court has held that state welfare laws discriminating against aliens violate the equal protection clause of the fourteenth amendment, and encroach upon the exclusive federal control of immigration.

Graham v. Richardson, 403 U.S. 365 (1971).

Constitutional Law - Right To Trial By Jury In Juvenile Delinquency Proceedings, Dennis L. Veraldi

Duquesne Law Review

The Supreme Court of Pennsylvania has held that the right to trial by jury in a juvenile proceeding is not so "fundamental" as to be constitutionally required.

Terry Appeal, 438 Pa. 339, 265 A.2d 350 (1970).

Constitutional Law - Burden Of Proof In A Juvenile Delinquency Proceeding, M. Lawrence Shields Iii

Duquesne Law Review

The Supreme Court of the United States has held that where a juvenile is charged with the commission of a delinquent offense for which institutional confinement may be imposed, due process requires that the charges against him be proved beyond a reasonable doubt.

In re Winship, 397 U.S. 358 (1970).

Constitutional Law - Rent Withholding Act, Mark Louis Glosser

Duquesne Law Review

The Pennsylvania Supreme Court has held that the Rent Withholding Act is not an unconstitutional delegation of legislative authority, despite the fact that it leaves to the Department of Licenses and Inspections the task of applying the concepts of "fit and unfit for human habitation"; nor does it act as an unconstitutional taking of landlords' property without due process of law.

DePaul v. Kaufman, 441 Pa. 386, 272 A.2d 500 (1971).

Constitutional Law - Access To Courts - Indigent Seeking Divorce Decree, John Edward Wall

Duquesne Law Review

The Supreme Court of the United States has held that the due process clause of the fourteenth amendment precludes a state from denying to an indigent access to the courts pursuant to an effort to dissolve a marriage, solely because of his inability to pay court fees.

Boddie v. Connecticut, 401 U.S. 371 (1971).

Constitutional Law - Self-Incrimination - Use Of Confessions For Impeachment Purposes, Janice I. Gambino

Duquesne Law Review

The United States Supreme Court has held that the voluntary confessions of a criminally accused, made in the absence of full Miranda warnings, may be used to impeach his credibility.

Harris v. New York, 401 U.S. 222 (1971).