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Reconstructing Section Five Of The Fourteenth Amendment To Assist Impoverished Children, James G. Wilson

Law Faculty Articles and Essays

Liberal lawyers encounter grim alternatives caused by the Supreme Court's relentless shift to the right, particularly if they consider stare decisis a major constitutional value. They can attack specific decisions, demonstrating inconsistencies with prior cases, conclusory reasoning and/ or poor policy. They can use history, jurisprudence or even literature to make broad-based critiques of the Court's increasing callousness. They can propose counter-doctrine which is consistent with existing caselaw. The third response may appear quixotic, even naive, given the present Court. Nevertheless, exploration of progressive alternatives illuminates existing doctrine and provides potential openings if the Court ever decides to become more …

Seeing The Constitution From The Backseat Of A Police Squad Car, Tracey Maclin

UF Law Faculty Publications

A Book Review of Tempered Zeal, by H. Richard Uviller.

Appropriations Of Power, Gerhard Casper

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—Taxation—Federal Court May Order School District To Increase Tax Levy Beyond Limits Of State Constitution In Order To Amend Constitutional Violation. Missouri V. Jenkins, 110 S. Ct. 1651 (1990)., Grant E. Fortson

University of Arkansas at Little Rock Law Review

No abstract provided.

Can Punitive Damages Withstand A Due Process Challenge After Bankers Life & Casualty Co. V. Crenshaw And Browning-Ferris Industries Of Vermont V. Kelco Disposal?, Sanjit S. Shah

Fordham Urban Law Journal

This Note will consider whether punitive damages can withstand a constitutional challenge brought under the Due Process Clause of the fourteenth amendment. Part II of the Note examines how courts have resolved procedural due process and traditional vagueness challenges to exemplary damage awards. This section also discusses Justice O'Connor's approach to the vagueness doctrine, and the possibility that substantive due process may affect jury discretion to award punitive damages. Part III discusses why punitive damages do not violate the Due Process Clause. This Note concludes that punitive damages are not unconstitutional on procedural due process, fundamental fairness, or traditional vagueness …

Book Review Essay: Justice Rehnquist And His Constitution, David Day

Faculty Publications

No abstract provided.

Malice In Wonderland: Fictionalized Quotations And The Constitutionally Compelled Substantial Truth Doctrine, Neil J. Kinkopf

Faculty Publications By Year

No abstract provided.

Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

Part I critiques the Report's insistence that accurate fact finding exhausts, or nearly exhausts, the objectives of criminal justice, identifies the fundamental role of the Bill of Rights in the American political order, and situates federal habeas corpus within that framework. Part II traces the Report's historical review of the federal habeas jurisdiction and critiques the Report's too-convenient reliance on selected materials that, on examination, fail to undermine conventional understandings of the writ's development as a postconviction remedy. Part III responds to the Report's complaints regarding current habeas corpus practice and refutes contentions that the habeas jurisdiction overburdens federal dockets …

"Were There No Appeal": The History Of Review In American Criminal Courts, David Rossman

Faculty Scholarship

The contemporary criminal justice system is guided, in large part, from the top down. A great deal of the force that drives the "terrible engine" of the criminal law is supplied by courts that consider cases on review after a defendant has been convicted.

By What Authority: Reflections On The Constitutionality And Wisdom Of The Flag Protection Act Of 1989, David L. Faigman

UC Law Constitutional Quarterly

No abstract provided.

The Supreme Court's Bifurcated Interpretation Of The Confrontation Clause, Daniel Shaviro

UC Law Constitutional Quarterly

No abstract provided.

Experimenting With State Constitutional Limits On Punitive Damages In California: Application Of The California Excessive Fines Clause, Thomas Preston Klein

UC Law Constitutional Quarterly

No abstract provided.

The Case Against A Right To Religion-Based Exemptions, Ellis M. West

Political Science Faculty Publications

When, if ever, does the free exercise clause of the first amendment give an individual or organization the right to disobey with impunity a valid law of the state? This question is being discussed with increasing frequency and intensity because of the growing number of persons and groups who are going to the courts and claiming such a right on the grounds that the application of certain laws to them would burden their free exercise of religion. Almost all the individuals and some of the groups who claim such a right do so because the laws to which they object …

The Due Process Defense In Entrapment Cases, The Journey Back, Paul Marcus

Faculty Publications

No abstract provided.

O'Er The Land Of The Free: Flag Burning As Speech, Kent Greenawalt

Faculty Scholarship

I am honored to lecture at this school, which has a number of friends, and a much larger circle of scholars whose work I admire. I am honored to lecture in the memory of Melville Nimmer, one of the country's leading thinkers on freedom of speech as well as its foremost expert on copyright. I met Professor Nimmer only once, at a lunch with Vince Blasi. My recollection of the lunch is distinct. Gently and in the most friendly way, but with irrefutable logic, they showed me that a position I had held for more than a decade about immigration …

Constitutional Cultures: Constitutional Law, Richard Kay

Faculty Articles and Papers

Reviewing Constitutional Cultures: The Mentality and Consequences of Judicial Review. Robert F. Nagel. University of California, 1989

The Jurisprudence Of Constitutional Law: The Philosophical Origins And Differences Between The Western Liberal And Soviet Communist State Law, Ziyad Motala

Penn State International Law Review (1982 - 2011)

This article will examine the philosophical notions of a constitution and a state system from a historical perspective. It will highlight the different philosophical bases of state law and the purpose the constitution is meant to serve under the two divergent orders. The approach will be descriptive and comparative. The purpose of this work is not (in the words of Christopher Osakwe) to pass off a political opinion about the desirability of one or the other legal systems. Instead, the essential focus will be to examine the jurisprudence underlying the constitutional systems, and the different uses that constitutions perform in …

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 …

Exchange On The Eleventh Amendment, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Rethinking First Amendment Assumptions About Racist And Sexist Speech, Rodney A. Smolla

Washington and Lee Law Review

No abstract provided.

This Gun For Hire: Dancing In The Dark Of The First Amendment, Michael I. Meyerson

Washington and Lee Law Review

No abstract provided.

Casenotes: Constitutional Law — The Supreme Court Upholds The Constitutionality Of The Federal Sentencing Guidelines. Mistretta V. United States, 488 U.S. 361 (1989), Stanley Turk

University of Baltimore Law Review

No abstract provided.

Capital Punishment In Missouri: Recent Developments In The Interpretation And Administration Of The Death Penalty, Ellen Y. Suni

Faculty Works

No abstract provided.

A Step Towards Fairness In Capital Litigation: Missouri Resource Center, Sean O'Brien

Faculty Works

No abstract provided.

Justice Brennan, Judge Bork And A Jurisprudence Of Original Values, Harry F. Tepker

Faculty Articles

No abstract provided.

Probing Bork's Judicial Philosophy, Gerard V. Bradley

Journal Articles

Robert Bork: The Tempting of America. (New York: The Free Press, 1989. Pp. xiv, 432. $22.50.)

In the last third of The Tempting of America Robert Bork relives the painful ordeal of his lost nomination to the Supreme Court. Any sentient American then alive already knows that story: the campaign against him was full of half-truths, distortions, and just plain lies. Bork adds some confirming anecdotes, and I congratulate him for telling the tale candidly but without rancor. The loss is ours. In my opinion, Bork would have been among the two or three greatest justices of the last …

The Tempting Of America, Gerard V. Bradley

Journal Articles

THE TEMPTING OF AMERICA by Robert Bork. New York: The Free Press/Macmillan, 1990. Hdbd: pp. xiv-432.

In the concluding third of The Tempting of America Robert Bork recounts his unsuccessful fight to gain Senate confirmation to the Supreme Court.

Bork relates his war story to the rest of the book. In the first two-thirds of Tempting, he takes us on a grand tour of the Constitution's career, starting in the courts with Chief Justice John Marshall, on through the Civil War, Reconstruction, and New Deal eras. He finishes with a detailed examination of the Warren, Burger and Rehnquist Courts. …

The Union At Risk: Jacksonian Democracy, States Rights And The Nullification Crisis, Gerard V. Bradley

Journal Articles

Richard E. Ellis, The Union at Risk. Jacksonian Democracy, States Rights and the Nullification Crisis, Oxford: Oxford University Press, 1987. Pp. xi, 279. $32.50 (ISBN: 0-19-503785-5).

From the Review

In a widely reported address at Tulane University in October 1986, Attorney General Edwin Meese chastised the Supreme Court for its habitual conflation of constitutional law and the Constitution.

Meese is no intellectual, and his remarks were not intended as academic musings; thus, the speech may have been appropriately judged from a political perspective, condemned by liberals and applauded by conservatives for roughly the same reasons. Unfortunately obscured by the …

Tribe's "Jurisprudence Of The Religion Clauses", Gerard V. Bradley

Journal Articles

Laurence Tribe has usefully been described as a constitutional apologist for liberal political causes. His conspicuous opposition to the nomination of Judge Robert Bork to the Supreme Court and his imaginative defenses of Roe v. Wade have fueled that image. Tribe's "jurisprudence of the religion clauses" both confounds and complicates the picture. He sees no constitutional difficulty with public education vouchers, and defends the Catholic Church against "pro-choicers" who would strip its tax-exempt status because of the Bishops' "pro-life" activities. Tribe thinks that a public school moment-of-silence can be consistent with the Constitution and carves out a considerable zone of …

What Is A Church By Law Established?, M. H. Ogilvie

Osgoode Hall Law Journal

This paper examines one narrow question which is raised tangentially by virtue of the Constitution Act 1867, section 93 and the Constitution Act 1982, section 29 as interpreted by the Supreme Court of Canada in the Reference Re An Act to Amend the Education Act: what is an established church? It argues that when a single church alone enjoys constitutionally entrenched state support for its schools to the exclusion of all other religious groups, the real legal question is not about the legal protection of that church as a religious minority, especially when the recipient of state support is the …