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Articles 1 - 12 of 12
Full-Text Articles in Law
Government Responsibility For Constitutional Torts, Christina B. Whitman
Government Responsibility For Constitutional Torts, Christina B. Whitman
Articles
This essay is about the language used to decide when governments should be held responsible for constitutional torts.' Debate about what is required of government officials, and what is required of government itself, is scarcely new. What is new, at least to American jurisprudence, is litigation against government units (rather than government officials) for constitutional injuries. 2 The extension of liability to institutional defendants introduces special problems for the language of responsibility. In a suit against an individual official it is easy to describe the wrong as the consequence of individual behavior that is inconsistent with community norms; the language …
Police Interrogation And Confessions, Yale Kamisar
Police Interrogation And Confessions, Yale Kamisar
Book Chapters
In the police interrogation room, where, until the second third of the century, police practices were unscrutinized and virtually unregulated, constitutional ideals collide with the grim realities of law enforcement.
The Supreme Court And State Protectionism: Making Sense Of The Dormant Commerce Clause, Donald H. Regan
The Supreme Court And State Protectionism: Making Sense Of The Dormant Commerce Clause, Donald H. Regan
Articles
For almost fifty years, scholars have urged the Court to "balance" in dormant commerce clause cases; and the scholars have imagined that the Court was following their advice. The Court has indeed claimed to balance, winning scholarly approval. But the Court knows better than the scholars. Despite what the Court has said, it has not been balancing. It has been following a simpler and better-justified course. In the central area of dormant commerce clause jurisprudence, comprising what I shall call "movement-of-goods" cases), the Court has been concerned exclusively with preventing states from engaging in purposeful economic protectionism. Not only is …
Arrest, James Boyd White
Arrest, James Boyd White
Book Chapters
The constitutional law of arrest governs every occasion on which a government officer interferes with an individual’s freedom, from full-scale custodial arrests at one end of the spectrum to momentary detentions at the other. Its essential principle is that a court, not a police officer or other executive official, shall ultimately decide whether a particular interference with the liberty of an individual is justified. The court may make this judgment either before an arrest, when the police seek a judicial warrant authorizing it, or shortly after an arrest without a warrant, in a hearing held expressly for that purpose. The …
Boycott, Theodore J. St. Antoine
Boycott, Theodore J. St. Antoine
Book Chapters
A boycott is a group refusal to deal. Such concerted action is an effective way for society’s less powerful members,such as unorganized workers or racial minorities, to seek fair treatment in employment, public accommodations,and public services. But as the Supreme Court recognized in Eastern States Retail Lumber Dealers’ Association v.United States (1914): ‘‘An act harmless when done by one may become a public wrong when done by many acting in concert, for it then takes on the form of a conspiracy.’’
Burden Of Proof, James Boyd White
Burden Of Proof, James Boyd White
Book Chapters
Although the Constitution does not mention burden of proof, certain principles are widely accepted as having constitutional status. The first and most significant of these is the rule that in a criminal case the government must prove its case ‘‘beyond a REASONABLE DOUBT.’’ This is the universal COMMON LAW rule, and was said by the Supreme Court in IN RE WINSHIP (1970) to be an element of DUE PROCESS. This standard is commonly contrasted with proof ‘‘by a preponderance of the evidence’’ or ‘‘by clear and convincing evidence.’’ The standard of proof is in practice not easily susceptible to further …
Compulsory Process, Right To, Peter K. Westen
Compulsory Process, Right To, Peter K. Westen
Book Chapters
The first state to adopt a constitution following the Declaration of Independence (New Jersey, 1776) guaranteed all criminal defendants the same ‘‘privileges of witnesses’’ as their prosecutors. Fifteen years later, in enumerating the constitutional rights of accused persons, the framers of the federal Bill of Rights bifurcated what New Jersey called the ‘‘privileges of witnesses’’ into two distinct but related rights: the Sixth Amendment right of the accused ‘‘to be confronted with the witnesses against him,’’ and his companion Sixth Amendment right to ‘‘compulsory process for obtaining witnesses in his favor.’’ The distinction between witnesses ‘‘against’’ the accused and witnesses …
Hearsay Rule, Peter K. Westen
Hearsay Rule, Peter K. Westen
Book Chapters
The hearsay rule is a non constitutional rule of evidence which obtains in one form or another in every jurisdiction in the country. The rule provides that in the absence of explicit exceptions to the contrary, hearsay evidence of a matter in dispute is inadmissible as proof of the matter. Although jurisdictions define "hearsay" in different ways, the various definitions reflect a common principle: evidence that derives its relevance in a case from the belief of a person who is not present in court—and thus not under oath and not subject to cross-examination regarding his credibility—is of questionable probative value.
Jury Discrimination, James Boyd White
Jury Discrimination, James Boyd White
Book Chapters
Jury discrimination was first recognized as a constitutional problem shortly after the CIVIL WAR, when certain southern and border states excluded blacks from jury service. The Supreme Court had little difficulty in holding such blatant racial discriminationinvalid as a denial of the equal protection of the laws guaranteed by the recently adopted Fourteenth Amendment. But, beyond such obvious improprieties, what should the principle of nondiscrimination forbid? Some kinds of ‘‘discrimination’’ in the selection of the jury are not bad but good: for example, those incompetent to serve ought to be excused from service, whether their incompetence arises from mental or …
Philosophy And The Constitution, Donald H. Regan
Philosophy And The Constitution, Donald H. Regan
Book Chapters
The Constitution is one of the great achievements of political philosophy; and it may be the only political achievement of philosophy in our society. The Framers of the Constitution and the leading participants in the debates on ratification shared a culture more thoroughly than did any later American political elite. They shared a knowledge (often distorted, but shared nevertheless) of ancient philosophy and history, of English common law, of recent English political theory, and of the European Enlightenment.They were the American branch of the Enlightenment,and salient among their membership credentials was their belief that reasoned thought about politics could guide …
Picketing, Theodore J. St. Antoine
Picketing, Theodore J. St. Antoine
Book Chapters
Picketing typically consists of one or more persons patrolling or stationed at a particular site, carrying or wearing large signs with a clearly visible message addressed to individuals or groups approaching the site. Some form of confrontation between the pickets and their intended addressees appears an essential ingredient of picketing. Congress and the National Labor Relations Board have distinguished between picketing and handbilling, however, and merely passing out leaflets without carrying a placard does not usually constitute picketing. What stamps picketing as different from more conventional forms of communication, for constitutional and other legal purposes, ordinarily seems to be the …
The Federal Rules Of Criminal Procedure, James Boyd White
The Federal Rules Of Criminal Procedure, James Boyd White
Book Chapters
After the Federal Rules of Civil Procedure (1938) established a uniform set of procedures for the trial of civil cases in federal courts, Congress authorized the supreme court to make rules for the trial of federal criminal cases as well. With two Justices dissenting, the Supreme Court adopted the rules in 1944 and submitted them to Congress, which, by silence, approved them.