Law Commons^™

Our Court Masters, Chad J. Pomeroy

Faculty Articles

In 1995, Utah became the first state to pass a bill prohibiting the recognition of same-sex marriages performed in other states and nations. Thereafter, in 2004, Utah voters approved a ballot referendum on Utah Constitutional Amendment 3, which defined marriage as the legal union between a man and a woman and which restricted unmarried civil unions. This referendum was approved by 65.9% of those who voted on it. That is, 593,297 Utah citizens (of the approximately 900,000 who voted) voted to approve the amendment.

Then, in March of 2013, three couples filed suit in the United States District Court for …

Governmental Power Versus Individual Liberty, Vincent R. Johnson

Faculty Articles

Father, Son, and Constitution by Alexander Wohl is a major contribution to legal scholarship. This dual biography focuses on two public figures, each of whom played a leading role in addressing the most challenging legal questions of their day. The subjects of the book are Supreme Court Justice Tom C. Clark and his son Ramsey Clark, the most liberal attorney general in American history. The Clarks’ stories are told against a backdrop of the continuing American struggle to find the proper balance between governmental power and individual liberty.

The public careers of Tom and Ramsey Clark were largely sequential, but …

Father, Son, And Constitution: How Justice Tom Clark And Attorney General Ramsey Clark Shaped American Democracy, By Alexander Wohl (Book Review), Vincent R. Johnson

Faculty Articles

In Father, Son, and Constitution, Alexander Wohl brings to life two major figures of American law: Tom C. Clark and his son, Ramsey Clark. The story focuses primarily on the middle third of the twentieth century and the many heated constitutional challenges that arose during that era.

With an engaging literary style, Wohl perceptively examines not merely the lives and careers of Tom and Ramsey Clark, but the key roles they played in the issues of their day. The story proceeds from Pearl Harbor and World War II, to the Cold War, to desegregation, to the problems that beset President …

The Mentally Disordered Criminal Defendant At The Supreme Court: A Decade In Review, Dora W. Klein

Faculty Articles

In the past decade, at least eight cases involving issues at the intersection of criminal law and clinical psychology have reached the United States Supreme Court. Of particular interest are those cases which concern three general topics: the culpability of juvenile offenders; mental states and the criminal process, including the presentation of mental disorder evidence, competency to stand trial, and competency to be executed; and the preventive detention of convicted sex offenders.

Of these eight cases, two cases cases adopted categorical exclusions from certain kinds of punishment, three involved questions about mental states (and in two of these the Court …

Rehabilitating Mental Disorder Evidence After Clark C. Arizona: Of Burdens, Presumptions, And The Rights To Raise Reasonable Doubt, Dora W. Klein

Faculty Articles

The right not to be found guilty of a crime absent proof beyond a reasonable doubt is a powerful right. It can be undermined, however, by rules that at first seem to have little to do with reasonable doubt or with burdens of proof.

In the recent case of Clark v. Arizona, the Supreme Court considered whether states may enact rules that categorically prohibit criminal defendants from offering mental disorder evidence for the purpose of raising reasonable doubt regarding the mens rea element of a charged offense. In Arizona law, mental disorder evidence is inadmissible for the purpose of disproving …

The Ethical Foundations Of American Judicial Independence, Vincent R. Johnson

Faculty Articles

Most lawyers and many citizens could recall the federal constitutional basis for judicial independence. Article III of the United States Constitution mandates that positions be filled through appointment by the President and confirmation by the Senate. That formidable selection process almost invariably ensures that federal judges are intelligent, well educated, and professionally experienced. Those qualities are conducive to judicial independence.

Additionally, federal judges enjoy the following constitutional guarantees: life tenure during good behavior, non-reducible compensation, and removal only through impeachment. These protections free federal judges from the need to behave in politically advantageous ways in order to keep their positions. …

Surprised By Law, Emily A. Hartigan

Faculty Articles

This year’s Association of American Law Schools convention provided a genuinely engaging panel discussion between Michael Sandel and Judge Stephen Reinhardt. Michael Sandel, Harvard philosopher of community and the “encumbered self,” delivered his defense of an ethics of appreciation which goes beyond mere toleration, arguing for honor for persons rather than mere dignity. Reinhardt countered by characterizing Sandel’s stuff as the sort of academic theorizing which has nothing much to do with the world, and raised with almost unconscious elegance the main issue, and a deeply troubling concrete dilemma.

Reinhardt noted that Sandel’s portrait of the person did not work …

Evidence Of Religion And The Religion Of Evidence, Michael S. Ariens

Faculty Articles

When testimony about the religiosity of a victim is elicited, a jury will likely become aware of the religious affiliation of the victim. Any revelation to a jury of the religiosity of a victim can be an aid to the jury in assessing the punishment to be given to the defendant, since being religious and talking with people about religion is deemed a communal good. However, prescribing a harsher punishment to a defendant because of the religious affiliation of a victim is a form of religious discrimination which is unconstitutional. In light of this inherent difficulty of evidence of religion, …

Up In Smoke: Fourth Amendment Rights And The Burger Court, Gerald S. Reamey

Faculty Articles

When Warren Burger was appointed Chief Justice in 1969, he was expected to lead the Supreme Court away from its liberal, value-laden approach to constitutional adjudication. Indeed, a retrospective of the court’s work during the seventeen years Warren Burger served as Chief Justice reveals the expected conservative trend of the Chief Justice himself, as well as the Supreme Court generally. It does not, however, reflect wholesale rejection of the most controversial civil liberties decisions rendered by the Warren Court. It is also unclear that Chief Justice Burger was responsible for the Court’s retrenchment on civil liberties where it did occur. …

Investigative Detentions For Purposes Of Fingerprinting, David A. Schlueter

Faculty Articles

This article focuses on constitutional issues associated with fingerprinting suspects in investigative detention. Following a series of barracks larcenies, Naval Investigative Service (NIS) investigators fingerprinted approximately 100 servicemembers. All those ordered to report to the NIS office for fingerprinting had been present in the unit at the time of the offenses, and among those was the accused, who was later linked to the crime through his fingerprints. Before the accused reported to the NIS office there was no probable cause or reasonable suspicion to believe that he was in any way involved in the crimes. Were the fingerprints admissible?

United …

Toward Domestic Recognition Of A Human Right To Language, Bill Piatt

Faculty Articles

There is no clearly defined “right to language” in the United States. Yet, there do exist sources of such a right. For example, a constitutionally protected right to express oneself or receive communications in a language other than English is supported by a number of federal court decisions. Further, there may be a first amendment right to receive broadcast programming in languages other than English, and some federal statutes even provide a guarantee of the exercise of language rights in a number of public and civic contexts.

In spite of these sources for a right to language, it is an …

The Younger Abstention: Primary State Jurisdiction Over Law Enforcement, David A. Dittfurth

Faculty Articles

The abstention doctrines have received much attention by the United States Supreme Court over the last decade. These doctrines are represented by judicial rules that require federal trial courts, in appropriate circumstances, to abstain from exercising subject matter jurisdiction although they clearly have the power to do so. As a result, the particular case is shunted back into a state judicial system for determination.

The most confusing of these doctrines is the one arising in major part from Younger v. Harris. In short, this case stands for the rule that, once a state criminal prosecution has been initiated, a federal …

Unequal Justice: Lawyers And Social Change In Modern America, By Jerold S. Auerbach (Book Review), David A. Dittfurth

Faculty Articles

In Unequal Justice, Jerold S. Auerbach attempts to prove that the legal profession has failed to adequately pursue equality of justice. He finds little evidence that the legal profession or its dominant factions have made an adequate effort to assure the provision of legal services according to need. On the contrary, most of the historical evidence presented in this book leads one to believe that the legal profession has accepted profit as its real goal.

The author contends that, because the legal profession is responsible for formulating and applying law in a very legalistic society, it serves a very important …