Law Commons^™

Government By Judiciary: The Transformation Of The Fourteenth Amendment, Gerard E. Lynch

Faculty Scholarship

As its title suggests, Raoul Berger's Government by Judiciary states an extreme version of a familiar thesis: The Supreme Court has abandoned its proper role as interpreter of the Constitution and has usurped the power to act as a third legislative chamber. Like kadis under a tree, the Court creates law from mere personal predilections. The main instrument of this judicial coup has been the fourteenth amendment. Government by Judiciary is an historian's book, strongest when using the historian's tools to illuminate the past. Underlying this research, however, is a remarkably simplistic theory of constitutional interpretation, a theory that forms …

Processes Of Constitutional Decisionmaking: Cases And Materials, Henry Paul Monaghan

Faculty Scholarship

Authors of constitutional law casebooks traditionally have presented their subject through Supreme Court opinions arranged under the three general groupings of judicial review, distribution of powers (federalism and separation of powers), and individual liberties. This organizational consensus rests upon two widely held and deep beliefs: a basic course in constitutional law should (1) consist of a rigorous and sustained study of substantive doctrine and (2) be undertaken principally through a detailed examination of Supreme Court decisions, albeit supplemented in varying degrees by authors' questions and law review excerpts.

Paul Brest's Processes of Constitutional Decisionmaking poses a formidable challenge to this …

Section 1983 And Federalism, Richard Briffault

Faculty Scholarship

The relationship between the themes of federalism and individual rights is one that runs deep in American intellectual and social history. And it is one that has changed drastically with changes in the conditions and temperament of our society.

In the early days of the Republic, federalism was viewed as. a means of protecting individual rights from the tyranny of a unified central government. The Civil War brought with it a rejection of this guiding principle. State autonomy came to be seen not as a means to protect the individual from government abuse but rather as the primary source of …

First Amendment Protection For Commercial Advertising: The New Constitutional Doctrine, Thomas W. Merrill

Faculty Scholarship

Governmental regulation of commercial advertising has become a major focus of challenges to established first amendment doctrine. An increasing number of suits have raised constitutional objections to regulations of false or deceptive advertising, regulations of offensive advertising, prohibitions of commercial advertising in certain forums, prohibitions of price advertising for particular products or services, and prohibitions of all advertising for particular products or services.' Until recently, the majority of courts upheld such regulations under the Supreme Court's ruling in Valentine v. Chrestensen that "purely commercial advertising" is unprotected by the first amendment.

In the last two years the Court has subjected …

Constitutional Common Law, Henry Paul Monaghan

Faculty Scholarship

Mr. Justice Powell has publicly characterized the 1974 Term of the Supreme. Court as a "dull" one. Whatever the accuracy of that description, the 1974 Term was, in the public eye, a quiet one. When, late in the Term, the Court ordered the death penalty case held over for reargument, it ensured that the 1974 Term would generate few front-page testimonials to the supreme authority of the Supreme Court. But neither a dull nor a quiet Term can obscure the current reality that the Court's claim to be the "ultimate interpreter of the Constitution" appears to command more nearly universal …

Constitutional Regulation Of Provisional Creditor Remedies: The Cost Of Procedural Due Process, Robert E. Scott

Faculty Scholarship

In recent years a series of Supreme Court decisions has purported to envelop the rights of defaulting debtors in an enlarged concept of procedural due process. The central theme underlying this development is clearly an attempt by the Court to impose some degree of constitutional control on the exercise of provisional creditor remedies. The path that leads from Sniadach v. Family Finance Corp. to North Georgia Finishing, Inc. v. Di-Chem, Inc., is however, far from clear and the cases have provoked serious questioning of the meaning and impact of this doctrine. Due process as reflected in Sniadach and Fuentes …

Constitutional Adjucation: The Who And When, Henry Paul Monaghan

Faculty Scholarship

When the newly appointed Justices of the Supreme Court assembled in the Royal Exchange Building in New York for their first session on February 2, 1790, the most farsighted individual could not have foreseen what the future held for this tribunal. Now less than a generation short of its 200th anniversary, the Court is universally acknowledged to be the final and authoritative expositor of the Constitution. Yet after almost two centuries, questions concerning this power of the Court to interpret the Constitution remain. The first set of questions centers on the substantive standards for constitutional adjudication. The second, with which …

The Reality Of Procedural Due Process – A Study Of The Implementation Of Fair Hearing Requirements By The Welfare Caseworker, Robert E. Scott

Faculty Scholarship

The constitutional mandates of procedural due process have been more sharply defined in recent years as a result of the decision of the Supreme Court in Goldberg v. Kelly. Although the full extent of the doctrine has not yet been delimited, the core proposition seems well established that in the absence of an overriding governmental interest, procedural -due process requires that an individual be accorded notice and a hearing prior to an administrative decision that would adversely affect his ability to subsist by contemporary standards. In applying this principle to the termination of public assistance payments, the Court in …

All Or Nothing At All: The Defeat Of Selective Conscientious Objection, Kent Greenawalt

Faculty Scholarship

The generosity of the United States Supreme Court to conscientious objectors whom Congress has declined to exempt from military service has apparently ended. In Gillette v. United States, decided with Negre v. Larsen, the Court decisively closed the door on claims that those conscientiously opposed to participation in particular wars are entitled by statute or constitutional right to an exemption from military service. Mr. Justice Marshall's majority opinion first disposes of the statutory claim. According to the opinion, the relevant language of § 6(j) of the Military Selective Service Act of 1967," conscientiously opposed to participation in war …

Public Support And The Sectarian University, Walter Gellhorn, Kent Greenawalt

Faculty Scholarship

In mid-1968 we undertook to advise Fordham University concerning steps that might be appropriate to establish its eligibility for public assistance. As part of that task we tried to determine the extent to which present law requires official differentiation between Church-related and other institutions of higher learning. Since the University sought a wholly detached consideration of its legal posture, our conclusions in this article represent our best judgment of the present state of the law and its probable development. We have avoided indicating our own personal position on debatable legal and ethical issues.

The Regulation And Administration Of The Welfare Hearing Process – The Need For Administrative Responsibility, Robert E. Scott

Faculty Scholarship

In recent years, the concept of public welfare has undergone substantial conceptual changes, the primary being a shift from the older concept of gratuity to one of statutory entitlement pursuant to the Social Security Act. This paper seeks to examine and analyze the administrative "fair hearing" as a means of effective regulation of administrative discretion and enforcement of the entitlement provisions of the federal act. Primary emphasis is placed on a comparative treatment of state hearing procedures and federal hearing regulations to determine whether the fair hearing is, at present, a viable means of insuring due process in welfare administration.

The Truth-In-Negotiations Act – An Examination Of Defective Pricing In Government Contracts, Michael J. Graetz

Faculty Scholarship

Charges of excessive profitmaking on government contracts have issued from the Senate floor and the nation's press and have provided the impetus for recent congressional investigations and proposals for remedial legislation. Profiteering by government contractors is a problem of potentially enormous dimensions since purchases by the federal government total more than seventy-seven billion dollars – over ten per cent of the gross national product. Because the greatest part of these purchases are made by the Department of Defense, congressional action aimed at minimizing excessive profits has focused upon Defense Department procurement activities under the Armed Services Procurement Act (ASPA).

Constitutional Law, Kent Greenawalt

Faculty Scholarship

In the last thirty years, the equal protection clause has been largely transformed. Once a point of reference for courts striking down schemes of economic regulation which they regarded as unreasonable or unwise, it is now primarily a source of constitutional standards in the areas of civil rights, reapportionment, and rights of indigents accused of crime. These standards are of immense legal and social consequence. Since the landmark case of Brown v. Board of Educ. their development-characterized by Professor Philip B. Kurland as "the rise of egalitarianism" – has been paralleled by an increasing attention to the claims of equality …

The Constitution And Occupational Licensing In Massachusetts, Henry Paul Monaghan

Faculty Scholarship

Judges have long recognized that the right to earn a living in any of the common occupations is among those fundamental interests which a democratic society should protect. Justice Bradley characterized it as an "inalienable right," and Justice Douglas asserted that it is "the most precious liberty that man possesses." Indeed, Mr. Justice Field viewed protection of this right as one of the distinguishing features of our republican institutions. That the right to earn a living is generally within the protective mantle of the Fourteenth Amendment is now long settled constitutional doctrine. Writing for a unanimous court in 1915, Mr. …