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Full-Text Articles in Law

"Taking" The Imperial Judiciary Seriously: Segmenting Property Interests And Judicial Revision Of Legislative Judgments, John A. Humbach Jan 1993

"Taking" The Imperial Judiciary Seriously: Segmenting Property Interests And Judicial Revision Of Legislative Judgments, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This Article examines the diversion of the Takings Clause from its historic limited role to that of a charter for courts to second-guess legislative determinations of land-use rights and wrongs. As we shall see, prior to Lucas the Supreme Court and others following its lead have generally not regarded the Takings Clause as a warrant for reaching de novo determinations on land use problems and then substituting such judicial determinations, if different, for those of the legislature. Some notable exceptions in the Claims Court and Federal Circuit will then be considered along with the ostensible Supreme Court authority, a sentence …


What Is Behind The "Property Rights" Debate?, John A. Humbach Jan 1992

What Is Behind The "Property Rights" Debate?, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

Lucas v. South Carolina Coastal Council' obviously presents issues that range far more broadly than just whether people should be allowed to build on beaches and dunes. Many observers have viewed the case as a splendid opportunity for the Supreme Court to re-establish private owner autonomy in land use decisions - to cut down, perhaps drastically, on elected legislatures' traditional power to protect the environment by regulating uses of land. Behind the "property rights" debate is the question of whether states and communities really ought to have the power that they have traditionally had to control the development and patterns …


Justice Brennan And The First Amendment Minefield: In Respectful Appreciation, Ralph Michael Stein Jan 1991

Justice Brennan And The First Amendment Minefield: In Respectful Appreciation, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

It is a special privilege, and a personal joy, for me to have the opportunity to contribute a piece honoring such a revered figure. I make no claim to scholarly objectivity. My premise is simple: William J. Brennan has given us a legacy of first amendment decisions, concurrences, and dissents that reflect great honor on the jurist. My portion of this Festschrift provides selected examples of Justice Brennan's contribution, and concludes by thanking him for serving, through his opinions, as a mentor for me throughout my career as a teacher of constitutional law.


Gideon V. Wainwright Revisited: What Does The Right To Counsel Guarantee Today?, Michael B. Mushlin Jan 1990

Gideon V. Wainwright Revisited: What Does The Right To Counsel Guarantee Today?, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

In Gideon v. Wainwright, the Supreme Court unanimously held that indigent state felony defendants are constitutionally entitled to the appointment of trial counsel. The opinion aroused wide support, and even enthusiasm, almost from the moment it was announced in 1963. Two and a half decades later this support has not diminished. However, are the words of praise only lip service to the noble idea of the right to counsel? Has Gideon really made a difference? Has its promise of a fair shake for poor criminal defendants been kept, or has Gideon meant only that defendants are provided with the fleeting …


Slapp Suits: A Slap At The First Amendment, Ralph Michael Stein Jan 1989

Slapp Suits: A Slap At The First Amendment, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

Strategic Lawsuits Against Public Participation, or SLAPP suits, as they are commonly called, are a growing nationwide phenomenon which imperil the protection afforded by the petition clause of the first amendment to the United States Constitution. These suits also implicate fundamental freedom guarantees of the various state constitutions. My focus today, however, will be largely on the first amendment.


Unsafe Havens: The Case For Constitutional Protection Of Foster Children From Abuse And Neglect, Michael B. Mushlin Jan 1988

Unsafe Havens: The Case For Constitutional Protection Of Foster Children From Abuse And Neglect, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

The six sections of this Article present the case for direct federal court involvement in aiding foster children who are at risk of abuse and neglect while in foster care. Section I discusses the extent of abuse and neglect in foster care as well as the structural causes of this maltreatment. It also explains the inevitable failure of the political branches of government to confront the problem. Section II describes the constitutional right to safety and surveys the judicial treatment of that right, including the lack of development of the right for children in foster care. Section III discusses differences …


Constitutional Limits On The Power To Take Private Property: Public Purpose And Public Use, John A. Humbach Jan 1987

Constitutional Limits On The Power To Take Private Property: Public Purpose And Public Use, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The rights/freedoms dichotomy tacitly permeates Supreme Court ‘takings' jurisprudence, and it has an explanatory power which extends to virtually all ‘takings' cases decided by the Court. Its explanatory power does not, however, extend to the relatively few cases which involve the taking of ‘rights' for purely private use, that is rearrangements of existing private property rights, as opposed to takings for use by the government or its designees in some public service function. Because rearranging the existing pattern of private ownership takes ‘rights' and not mere ‘freedoms,’ we might expect, according to the rights/freedoms pattern, that the Court would uniformly …


Economic Due Process And The Takings Clause, John A. Humbach Jan 1987

Economic Due Process And The Takings Clause, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

The discussion which follows will examine the new verbalizations repeatedly employed in Supreme Court takings decisions of the past decade and the Court's enlistment of the just compensation requirement as a basis for undertaking substantive review of legislation. As an introduction, the distinctive historical roles and roots of the substantive due process and just compensation requirements will be reviewed.


"We The People": John Locke, Collective Constitutional Rights, And Standing To Challenge Government Action, Donald L. Doernberg Jan 1985

"We The People": John Locke, Collective Constitutional Rights, And Standing To Challenge Government Action, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

The Article is presented in three Parts. Part I documents the enormous effect that Locke's political philosophy had on the Constitution's Framers and traces the idea of collective rights through Locke's Second Treatise, showing how Locke viewed government as a trustee and society as the settlor-beneficiary that forms and gives legitimacy to the government. Part II reviews the development of the current doctrine of standing and demonstrates how the current standing model creates a class of cases where government may, with impunity, violate the Constitution. Part III demonstrates the anomaly of the Supreme Court's current doctrine in a society founded …


Commentary, Ralph Michael Stein Jan 1985

Commentary, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

During the past year, the Court of Appeals for the Second Circuit decided a number of significant appeals involving constitutional issues. As is generally the case, most of the issues presented to the Second Circuit were also under judicial scrutiny in other federal appellate courts. Four first amendment cases decided by the court—three dealing primarily with freedom of religion and a fourth with freedom of the press—are particularly noteworthy and merit review.


Rethinking Selective Enforcement In The First Amendment Context, Karl S. Coplan Jan 1984

Rethinking Selective Enforcement In The First Amendment Context, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

This Note argues for the use of a balancing-of-interests approach in place of the current two-part test when enforcement policies are challenged on first amendment grounds. The Note begins by explaining the current two-part test and analyzing how it conflicts with other first amendment doctrines. Next, an inquiry into the development of current law reveals that the origins of both the selective prosecution defense and its motive requirement lie in equal protection review of administrative action. These roots suggest a defect in the application of an equal protection test in place of a direct application of the first amendment. The …


"The Right Of The People": Reconciling Collective And Individual Interests Under The Fourth Amendment, Donald L. Doernberg Jan 1983

"The Right Of The People": Reconciling Collective And Individual Interests Under The Fourth Amendment, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

Professor Doernberg examines a tension within fourth amendment jurisprudence and sugqests a means of resolving it. On the one hand, the Supreme Court has conferred fourth amendment standing only upon those whose personal privacy interests have been disturbed. On the other hand, the Court has allowed such persons to invoke the exclusionary rule only in circumstances where, in the Court's view, it would serve as an effective deterrent. Professor Doernberg traces these two po1icies to different conceptions of the fourth amendment: the first interprets the amendment as a guarantor of individual rights; the second construes it as an instrument for …


A Unifying Theory For The Just-Compensation Cases: Takings, Regulation And Public Use, John A. Humbach Jan 1982

A Unifying Theory For The Just-Compensation Cases: Takings, Regulation And Public Use, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This discussion begins with some remarks concerning the concept of property as a general matter. It will then consider briefly an approach to the problem which, though promising and advanced, nevertheless falls short of achieving an internally consistent, unifying theory. Following this introduction, an attempt will be made to specify the two distinctive conceptual components of property interests on whose difference the cases seem to turn, and then to demonstrate the suitability of this conceptual distinction as the foundation for a coherent theory of the law.


Harmless Error: Constitutional Sneak Thief, Steven H. Goldberg Jan 1980

Harmless Error: Constitutional Sneak Thief, Steven H. Goldberg

Elisabeth Haub School of Law Faculty Publications

"Harmless constitutional error" is among the most insidious of legal doctrines. Since its promulgation by the United States Supreme Court in Chapman v. California, it has determined as many criminal appeals as have some of the more well-known and hotly debated decisions of the 1960s. Despite the frequency of its use in determining criminal appeals-possibly as high as ten percent of all criminal appeals during the last thirteen years it has received comparatively little critical attention. The reason for the inattention? It's a sneak thief. Its appearance does not raise apprehension, and its application does not leave concentrated areas of …


Review Of Private Property And The Constitution By Bruce Ackerman, John A. Humbach Jan 1978

Review Of Private Property And The Constitution By Bruce Ackerman, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

No abstract provided.


Laird V. Tatum: The Supreme Court And A First Amendment Challenge To Military Surveillance Of Lawful Civilian Political Activity, Ralph Michael Stein Jan 1973

Laird V. Tatum: The Supreme Court And A First Amendment Challenge To Military Surveillance Of Lawful Civilian Political Activity, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

This Comment will explore the salient issues raised by Laird v. Tatum and will attempt to answer the following questions: Did the Supreme Court err in denying the political activists an opportunity to present witnesses at a District Court hearing and in deciding the issues on the original papers and appellate brief? Was the Military Intelligence (hereinafter MI) program complained of an impermissible abridgment of First Amendment rights? Did Justice Rehnquist behave improperly by participating in the Laird v. Tatum decision? Last, to what extent has the Supreme Court's decision in this case affected future adjudication of First Amendment class …