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Full-Text Articles in Law

Search And Seizure Of America: The Case For Keeping The Exclusionary Rule, Yale Kamisar Jan 1982

Search And Seizure Of America: The Case For Keeping The Exclusionary Rule, Yale Kamisar

Articles

Twenty years ago, concurring in Mapp v. Ohio (1961), Justice William 0. Douglas looked back on Wolf v. Colorado (1949) (which had held that the Fourth Amendment's substantive protection against "unreasonable search and seizure" was binding on the states through the due process clause, but that the Fourth Amendment exclusionary rule was not) and recalled that the Wolf case had evoked "a storm of controversy which only today finds its end." But, of course, in the twenty years since Justice Douglas made that observation the storm of controversy has only intensified, and it has engulfed the exclusionary rule in ...


Justice And The Bureaucratization Of Appellate Courts, Joseph Vining Jan 1982

Justice And The Bureaucratization Of Appellate Courts, Joseph Vining

Articles

The author notes the growing bureaucratization of appellate justice in the United States and, in particular, the drafting of opinions by law clerks rather than by judges. Taking the Supreme Court of the United States as an example, and comparing its internal procedure with that of large administrative agencies, he questions whether the method of analysis familiarly used by lawyers to arrive at an authoritative statement of law is applicable to legal texts bureaucratically produced. He suggests that legal method and its presuppositions are ultimately associated with the authority of law, and concludes that there may be critical losses not ...


Individual And Community: An Appreciation Of Mr. Justice Powell, Christina B. Whitman Jan 1982

Individual And Community: An Appreciation Of Mr. Justice Powell, Christina B. Whitman

Articles

When the nomination of Lewis F. Powell, Jr., to the Supreme Court of the United States was submitted to the Senate Judiciary Committee ten years ago, much was made of his extraordinary record of service to his city, his state, and his profession.1 Justice Powell's career has been a model of individual responsibility to society. His belief in the value of civic life, and in the desirability of making such a life available to everyone, has been a dominant influence in his work on the Supreme Court. In what follows, I shall attempt to define some of the ...


Selective Incorporation Revisited, Jerold H. Israel Jan 1982

Selective Incorporation Revisited, Jerold H. Israel

Articles

In June 1960 Justice Brennan's separate opinion in Ohio ex re. Eaton v. Price' set forth what came to be the doctrinal foundation of the Warren Court's criminal procedure revolution. Justice Brennan advocated adoption of what is now commonly described as the "selective incorporation" theory of the fourteenth amendment. That theory, simply put, holds that the fourteenth amendment's due process clause fully incorporates all of those guarantees of the Bill of Rights deemed to be fundamental and thereby makes those guarantees applicable to the states. During the decade that followed Ohio ex re. Eaton v. Price, the ...


On Recognizing Variations In State Criminal Procedure, Jerold H. Israel Jan 1982

On Recognizing Variations In State Criminal Procedure, Jerold H. Israel

Articles

Everyone recognizes that the laws governing criminal procedure vary somewhat from state to state. There is often a tendency, however, to underestimate the degree of diversity that exists. Even some of the most experienced practitioners believe that aside from variations on some minor matters, such as the number of peremptory challenges granted, and variation on a few major items, such as the use of the grand jury, the basic legal standards governing most procedures are approximately the same in a large majority of states. I have seen varied evidence of this misconception in practitioner discussions of law reform proposals, particularly ...


Assaults On The Exclusionary Rule: Good Faith Limitations And Damage Remedies, Pierre J. Schlag Jan 1982

Assaults On The Exclusionary Rule: Good Faith Limitations And Damage Remedies, Pierre J. Schlag

Articles

No abstract provided.


Free Speech Or Economic Weapon? The Persisting Problem Of Picketing, Theodore J. St. Antoine Jan 1982

Free Speech Or Economic Weapon? The Persisting Problem Of Picketing, Theodore J. St. Antoine

Articles

"Peaceful picketing," the United States Supreme Court has said, "is the workingman's means of communication."' One line of analysis is that, as a means of communication, picketing is free speech and is therefore entitled to every constitutional protection afforded other forms of expression. This means that it cannot be subjected to special restrictions, such as antiboycott curbs, simply because it is picketing. The opposing line of analysis is that picketing is not simply speech; it is "speech plus." The "plus" element removes picketing from the realm of pure speech and enables it to be regulated in ways that the ...