Legal History Commons^™

“Public Use” Or Public Abuse? A New Test For Public Use In Light Of Kelo, Taylor Haines

Seattle University Law Review

The Takings Clause of the Fifth Amendment has long been controversial. It allows the government to take private property for the purpose of “public use.” But what does public use mean? The definition is one of judicial interpretation. It has evolved from the original meaning intended by the drafters of the Constitution. Now, the meaning is extremely broad. This Note argues that both the original and contemporary meaning of public use are problematic. It explores the issues with both definitions and suggests a new test, solidified in legislation instead of judicial interpretation.

When Big Brother Becomes “Big Father”: Examining The Continued Use Of Parens Patriae In State Juvenile Delinquency Proceedings, Emily R. Mowry

Dickinson Law Review (2017-Present)

The U.S. Constitution grants American citizens numerous Due Process rights; but, historically, the Supreme Court declined to extend these Due Process rights to children. Initially, common-law courts treated child offenders over the age of seven in the same manner as adult criminals. At the start of the 20th century, though, juvenile reformers assisted in creating unique juvenile courts that used the parens patriae doctrine and viewed children as delinquent youths in need of judicial parental guidance rather than punishment. Later, starting in 1967, the Supreme Court released multiple opinions extending certain constitutional Due Process rights to children in juvenile delinquency …

Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford

Dickinson Law Review (2017-Present)

Following its decision in Furman v. Georgia, the Supreme Court of the United States has attempted to standardize procedures that states use to subject offenders to the ultimate penalty. In practice, this attempt at standardization has divided capital sentencing into two distinct parts: the death eligibility decision and the death selection decision. The eligibility decision addresses whether the sentencer may impose the death penalty, while the selection decision determines who among that limited subset of eligible offenders is sentenced to death. In Ring v. Arizona, the Court held for the first time that the Sixth Amendment right to …

A Survey Of The History Of The Death Penalty In The United States, Sheherezade C. Malik, D. Paul Holdsworth

University of Richmond Law Review

No abstract provided.

Supreme Neglect Of Text And History, William Michael Treanor

Michigan Law Review

Since his classic book Takings appeared in 1985, Richard Epstein's ideas have profoundly shaped debate about the Fifth Amendment's Takings Clause to a degree that no other scholar can even begin to approach. His broad, original, and stunningly ambitious reading of the clause has powerfully influenced thinking in academia, in the judiciary, and in the political arena. The firestorm of controvery that followed the Supreme Court's recent decision in Kelo - in which the Supreme Court upheld the constitutionality of a municipal urban renewal plan that displaced long-time homeowners and conveyed their land to developers - is in critical part …

Cleansing Moments And Retrospective Justice, Margaret M. Russell

Michigan Law Review

We live in an era of questioning and requestioning long-held assumptions about the role of race in law, both in criminal prosecutions specifically and in the legal process generally. Certainly, the foundational framework is not new; for decades, both legal literature and jurisprudence have explored in great detail the realities of racism in the legal system. Even among those who might prefer to ignore the role of race discrimination in more than two centuries of American law, denial is no longer a viable or intellectually defensible option. Rather, debate now centers upon whether or not the extensive history of American …

Some Effects Of Identity-Based Social Movements On Constitutional Law In The Twentieth Century, William N. Eskridge Jr.

Michigan Law Review

What motivated big changes in constitutional law doctrine during the twentieth century? Rarely did important constitutional doctrine or theory change because of formal amendments to the document's text, and rarer still because scholars or judges "discovered" new information about the Constitution's original meaning. Precedent and common law reasoning were the mechanisms by which changes occurred rather than their driving force. My thesis is that most twentieth century changes in the constitutional protection of individual rights were driven by or in response to the great identity-based social movements ("IBSMs") of the twentieth century. Race, sex, and sexual orientation were markers of …

The Court And The Changing Constitution: A Discussion, Carl Sividorski, James Gardner, Barry Latzer, Peter Galie

Touro Law Review

No abstract provided.

Taking The Fifth: Reconsidering The Origins Of The Constitutional Privilege Against Self-Incrimination, Eben Moglen

Michigan Law Review

The purpose of this essay is to cast doubt on two basic elements of the received historical wisdom concerning the privilege as it applies to British North America and the early United States. First, early American criminal procedure reflected less tenderness toward the silence of the criminal accused than the received wisdom has claimed. The system could more reasonably be said to have depended on self-incrimination than to have eschewed it, and this dependence increased rather than decreased during the provincial period for reasons intimately connected with the economic and social context of the criminal trial in colonial America.

Second, …

Levy: Origins Of The Fifth Amendment, O. John Rogge

Michigan Law Review

A Review of Origins of the Fifth Amendment by Leonard W. Levy

Compelling The Testimony Of Political Deviants, O. John Rogge

Michigan Law Review

Besides the two specific problems which the new federal act presents, namely, whether it imposes nonjudicial functions on federal courts, and whether it should, does and can protect against the substantial danger of state prosecution, there is a general objection that one can raise against it, and to other acts of the same type: they relate to the area of belief and opinion, the very area which was involved when the English people, spearheaded by the Puritans, engaged in the struggle with the Crown that finally resulted in the establishment of a right of silence. At least if we are …

Compelling The Testimony Of Political Deviants, O. John Rogge

Michigan Law Review

At the last term the United States Supreme Court in Ullmann v. United States upheld the constitutionality of paragraph (c) of a federal act of August 1954 which seeks to compel the testimony of communists and other political deviants. Paragraph (c) relates to witnesses before federal courts and grand juries. The Court specifically left open the question of the validity of paragraphs (a) and (b) relating to congressional witnesses. Justice Frankfurter delivered the Court's opinion. Justice Douglas, with the concurrence of Justice Black, wrote a dissent.

It is our purpose to consider the background, history and terms of this compulsory …

The Fourteenth Amendment Reconsidered, The Segregation Question, Alfred H. Kelly

Michigan Law Review

Some sixty years ago in Plessy v. Ferguson the Supreme Court of the United States adopted the now celebrated "separate but equal" doctrine as a constitutional guidepost for state segregation statutes. Justice Brown's opinion declared that state statutes imposing racial segregation did not violate the Fourteenth Amendment, provided only that the statute in question guaranteed equal facilities for the two races. Brown's argument rested on a historical theory of the intent, although he offered no evidence to support it. "The object of the amendment," he said, "was undoubtedly to enforce the absolute equality of the two races before the law, …

Vested Rights And The Portal-To-Portal Act, Ray A. Brown

Michigan Law Review

The Portal-to-Portal Act of 1947 attempts, by new and retroactive definitions of what constitutes working time of an employee under the Fair Labor Standards Act of 1938, to deprive employees of claims under that earlier act, to which the Supreme Court of the United States has held they were entitled. This article will discuss whether this can be done under the due process clause of the Fifth Amendment.

Constitutional Law--Due Process And The Bill Of Rights--Self-Incrimination, F. William Hutchinson

Michigan Law Review

In the course of evolving workable doctrines which give substance and meaning to the skeletal phrase "due process of law" as used in the Fourteenth Amendment to limit state action, the Supreme Court has frequently been called on to determine the scope of the several prohibitions and guarantees of the Bill of Rights of the federal Constitution. This general problem, and more particularly the application of the Fifth Amendment self-incrimination clause to state criminal proceedings, was again presented in a recent case and resulted in a sharp division of opinion within the Court.