Digital Commons Network^™

Rethinking Harmless Constitutional Error, A. Kimberley Dayton

Faculty Scholarship

This article examines the increasing role of the Chapman Rule and its effect on the harmless error doctrine and outlines a coherent doctrine of constitutional error responsive to the purposes of the various constitutional protections afforded criminal defendants. Part I evaluates the Court's existing harmless error jurisprudence. Part II proposes a harmless error doctrine that, unlike the Court's approach, responds to constitutional values unrelated to truth determination. The last two parts of the Article address two problems precipitated by the use of outcome-oriented rules to define and remedy constitutional error. Part III discusses when such a rule should be used …

Black Men, Red Men, And The Constitution Of 1787: A Bicentennial Apology From A Middle Templar, Louis F. Claiborne

UC Law Constitutional Quarterly

No abstract provided.

Offensive Use Of The Insanity Defense: Imposing The Insanity Defense Over The Defendant's Objection, David S. Cohn

UC Law Constitutional Quarterly

No abstract provided.

Circumventing Due Process: A Judicial Response To Criminal Recidivism Under The Bail Reform Act, Shari J. Cohen

UC Law Constitutional Quarterly

No abstract provided.

False Prophet--Justice Brennan And The Theory Of State Constitional Law, Earl M. Maltz

UC Law Constitutional Quarterly

No abstract provided.

Do Judicial Scarlet Letters Violate The Cruel And Unusual Punishments Clause Of The Eight Amendment, Gregory M. Brown

UC Law Constitutional Quarterly

No abstract provided.

The Most Effective Or Least Restrictive Alternative As The Only Intermediate And Only Means-Focused Review In Due Process And Equal Protection, Roy G. Spece Jr.

Villanova Law Review (1956 - )

No abstract provided.

Rights-Talk, Jane B. Baron, Richard K. Greenstein

Villanova Law Review (1956 - )

No abstract provided.

The New Standard Of Review For Prisoners' Rights: A Turner For The Worse - Turner V. Safley, Lorijean Golichowski Oei

Villanova Law Review (1956 - )

No abstract provided.

The First Amendment And The Ideal Of Civic Courage: The Brandeis Opinion In Whitney V. California, Vincent A. Blasi

Faculty Scholarship

"[T]he working class and the employing class have nothing in common ....” So began the Preamble to the Constitution of the I.W.W., the Industrial Workers of the World. "Between these two classes a struggle must go on until the workers of the World organize as a class, take possession of the earth, and the machinery of production and abolish the wage system." Nicknamed the Wobblies, this group advocated a form of militant unionism built around the ideal of One Big Union embracing all industries. The I.W.W. enjoyed its strongest appeal among the miners, loggers, agricultural laborers, and construction workers of …

Some Modest Proposals On The Vice-Presidency, Richard D. Friedman

Articles

There are many good things in the Constitution, but the vice-presidency isn't one of them. In Part I of this essay, I will argue that there are three basic problems with the vice-presidency: the method of nomination, the method of election, and the office itself. That just about covers the waterfront.' If we had to do it all over again, we almost certainly would not" create the system we currently have. We cannot undo history, but we do have a very strong incentive to develop a better system of succession to the presidency. Whom we choose as vice-president is a …

Propaganda, Xenophobia, And The First Amendment, Rodney A. Smolla, Stephen A. Smith

Faculty Publications

No abstract provided.

Adherence To The Original Intentions In Constitutional Adjudication: Three Objections And Responses, Richard Kay

Faculty Articles and Papers

No abstract provided.

Preventive Detention: Illinois Takes A Tenative Step Towards A Safer Community, 21 J. Marshall L. Rev. 389 (1988), Carolyn Nickels Offenbach

UIC Law Review

No abstract provided.

Hazelwood School District V. Kuhlmeier: How Useful Is Public Forum Analysis In Evaluating Restrictions On Student Expression In The Public Schools, 22 J. Marshall L. Rev. 403 (1988), Mark N. Bonaguro

UIC Law Review

No abstract provided.

California V. Brown: Against The Antisympathy Instruction, Julianne C. Sylva

UC Law Constitutional Quarterly

No abstract provided.

Toward A Revisionist History Of The Supreme Court, Mark Tushnet

Cleveland State Law Review

The bicentennial year provoked a reconsideration of not only the era of the framing but of constitutional history as a whole. At one point I thought that I might participate in that effort by writing a history of the Supreme Court, updating Robert McCloskey's classic book in light of recent scholarship. It turned out that that project was too daunting for me. There was too much material to assimilate before I could feel comfortable in trying to present or even develop a history of the Supreme Court. This essay is, therefore, only a sketch of a revisionist history of the …

"Public Education In Shreds": Religious Challenges To Curricular Decisions, Kiply S. Shore

Indiana Law Journal

No abstract provided.

The Misadventures Of State Postconviction Remedies, Larry Yackle

Faculty Scholarship

In a colloquium concentrating on the lower federal courts' jurisdiction to determine federal claims, it falls to me to treat state court opportunities to adjudicate the same issues in advance of, as an aid to, or in place of federal litigation. To do that, I will have to recount some conventional wisdom regarding the development of federal habeas corpus and state postconviction remedies in tandem during the last half century. In due course, I hope to solicit support for an unconventional conclusion to be drawn from that experience.

In Praise Of Woodenness, Gary S. Lawson

Faculty Scholarship

Not long ago, I was a stalwart champion of judicial terrorism on behalf of economic liberty. In recent years, however, I have become a meek, mildmannered originalist whose favorite adjective is "wooden."' I still like economic liberty as much as the next person - in fact, more than at least one of the next two persons. Nonetheless, much as I would like to, I cannot agree that the Constitution requires a free market to the extent urged by, among others, Roger Pilon, Bernard Siegan,3 Steven Macedo, 4 Randy Barnett,5 and Richard Epstein.6 My aim here is not to criticize their …

Rights Discourse And Neonatal Euthanasia, Carl E. Schneider

Articles

Hard cases, they say, make bad law. Hard cases, we know, can also make revealing law. Hard cases identify the problems we have not found a way of solving. They reveal ways the law's goals conflict. They force us to articulate our assumptions and to examine our modes of discourse and reasoning. If there was ever a hard case for the law, it is the question of whether, how, and by whom it should be decided to allow newborn children who are severely retarded mentally or severely damaged physically to die. For many years, the law has not had to …

"Five-Hundred-Year Flood Plains" And Other Unconstitutional Challenges To The Establishment Of Community Residences For The Mentally Disabled, Robert L. Schonfeld

Fordham Urban Law Journal

This article examines the impact of state statutes and local ordinances on the establishment of community residences for the mentally disabled. While some states have policies advocating for community residences, these policies are often undermined by barriers such as neighborhood opposition and statutes and ordinances that impede development. The author analyzes the application of the equal protection clause to statutes and ordinances affecting the mental disabled, ultimately concluding that many are unconstitutional. Finally, the author discusses the impact of City of Cleburne v. Cleburne Living Center on state statutes and local ordinances that limit the establishment of community residences. The …

Oral History: Justice Joseph R. Grodin, The Committee On History Of Law In California

UC Law Constitutional Quarterly

No abstract provided.

Ventriloquism And The Verbal Icon: A Comment On Professor Hogg's "The Charter And American Theories Of Interpretation", Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

In this brief comment I offer some critical reflections on Professor Hogg's proposed approach to Charter interpretation. I suggest that Professor Hogg's attempt to legitimize and constrain judicial review is an exercise in confession and avoidance. On the one hand, he admits that "interpretivism" is explanatorily inadequate, yet on the other he refuses to accept "non-interpretivism" for he realizes that it has the potential to unmask the politics of law. I argue that Hogg's third way - that Charter interpretation should be progressive and purposive - is incapable of bearing the legitimizing weight which he requires in that it necessitates …

The Ninth Amendment And The Unwritten Constitution: The Problems Of Constitutional Interpretation, Andrzej Rapaczynski

Faculty Scholarship

This article is about two things; one general, the other specific. The general point is about the nature of interpretation and of the constraints that the text places on interpretation. The specific is about the ninth amendment.

My general claim about interpretation is that no textual provision by itself seriously constrains how it is going to be interpreted. This, I argue, is true not just about the open-ended provisions like the ninth amendment, but quite generally, about all textual provisions. The fact that no text by itself constrains interpretation, however, does not mean that interpretation is unconstrained; only that constraints …

The Constitutional Priority Of The Charter, Brian Slattery

Articles & Book Chapters

What rules determine the relative priority of the various Constitution Acts among themselves? In particular, how do the Constitution Act, 1982 and the Canadian Charter of Rights and Freedoms stand relative to constitutional provisions enacted after 1982? To what extent do they have the capacity to control later amendments? Various answers might be given to this question. This paper looks first at an answer with strong initial appeal. This invokes a principle of sequential ordering, which maintains that the priority between constitutional enactments is determined simply by the temporal sequence in which they were enacted. While this approach admits that …

Casenotes: Constitutional Criminal Law — Sentencing — Mandatory Sentencing Statute Requiring Life Imprisonment Without Parole For Habitual Offenders Of Violent Crimes Satisfies The Eighth Amendment's Proportionality Principle When Applied To A Fourth Conviction Of Daytime Housebreaking. State V. Davis, 310 Md. 611, 530 A.2d 1223 (1987), Thomas Patrick Ott

University of Baltimore Law Review

No abstract provided.

Taking The Framers Seriously, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews Taking the Constitution Seriously by Walter Berns (1987).

This review focuses on three of the key historical points that Walter Berns makes: his arguments that the Declaration of Independence is a Lockean document; that the Constitution encapsulates the political philosophy of the Declaration; and that the framers viewed the commercialization of society as a salutary development and were unambivalent champions of the right to property. Examination of these issues suggests that the ideological universe of the framers was far more complex than Berns indicates. While the revolutionary era witnessed a new concern with individual rights and a …

U.S. Supreme Court: The 1987-88 Term (Part Ii), Paul C. Giannelli

Faculty Publications

No abstract provided.

Are State Courts Enforcing The Fourth Amendment? A Preliminary Study, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.