Digital Commons Network^™

State V. Roberts: A Persuasive But Unsupported Position, Robert A. Boyd

Cleveland State Law Review

The Ohio Supreme Court recently held in State v. Roberts that when a witness is unavailable at the trial of a criminal defendant, the state may not introduce the witness' preliminary hearing testimony into evidence unless he had been cross-examined at the preliminary hearing. The court found that the defendant, Roberts, had been denied his right to confront an adverse witness when the trial court admitted the preliminary hearing testimony of a witness who was not present at trial, and held that mere opportunity to cross-examine at a preliminary hearing, unexercised, did not satisfy the demands of the Confrontation Clause …

The Impact Of Pacifica Foundation On Two Traditions Of Freedom Of Expression, Stephen W. Gard, Jeffrey Endress

Cleveland State Law Review

The United States Supreme Court, in FCC v. Pacifica Foundation, had a magnificent opportunity to either begin the process of defining first amendment limitations on the scope of the authority of the FCC to regulate the content of broadcast expression, explicate a rational ground for the differential status of broadcasting, or perhaps both. The purpose of this article is not to debate the wisdom of the use of sensitive language on the electronic media or elsewhere. Nor is it our purpose to debate the substantive question of whether the Court reached the proper result in Pacifica, although we will necessarily …

A Case For Judicial Balancing: Justice Stevens And The First Amendment, Richard G. Birinyi

Seattle University Law Review

This comment discusses four of Justice Stevens's opinions that analyze first amendment issues. Two dissenting opinions in Splawn v. California and Smith v. United States deal expressly with obscenity, and reject the Court's present method of analysis. Young v. American Mini Theatres, Inc. and Federal Communications Commission v. Pacifica Foundation both develop a balancing approach to ascertain the constitutionality of government regulation of nonobscene offensive speech. The comment concludes that Justice Stevens correctly identifies the factors necessary to insure proper Court protection of speech interests.

Osha And The Sixth Amendment: When Is A Civil Penalty Criminal In Effect, Michael H. Levin

UC Law Constitutional Quarterly

No abstract provided.

Judicial Immunity And Sovereignty, Robert F. Nagel

UC Law Constitutional Quarterly

No abstract provided.

Turning Over The Reins: The Abolition Of The Mandatory Appellate Jurisdiction Of The Supreme Court, John M. Simpson

UC Law Constitutional Quarterly

No abstract provided.

Should The Capital Vote In Congress? A Critical Analysis Of The Proposed D.C. Representation Amendment , U.S. Senator Orrin G. Hatch

Fordham Urban Law Journal

This article describes H.J. Res. 554, the proposed Amendment to obtain voting representation for D.C. It gives a historical overview of the District and its efforts to gain national representation, and presents a critical analysis of the case for District representation, including a summary of the arguments made in favor of the proposed amendment, as well as the constitutional and policy objections to the D.C. Amendment. The article concludes that proponents of the amendment conflate representation of the citizens of the District with representation of the District, and overlook its place as a neutral seat of government.

Equality For Individuals Or Equality For Groups: Implications Of The Supreme Court Decision In The Manhart Case, William W. Van Alstyne

Faculty Scholarship

This commentary breaks down the case of the City of Los Angeles Department of Water and Power v. Manhart and discusses what effects the Supreme Court's decision will have when Title VII is applied to university employers, particularly in their relationship with TIAA-CREF

A Preliminary Report On The Bakke Case, William W. Van Alstyne

Faculty Scholarship

This comment breaks down the variety of opinions in the Bakke case and discusses the immediate implications the decision may have on the academic community.

Applying Stone V. Powell: Full And Fair Litigation Of A Fourth Amendment Habeas Corpus Claim

Washington and Lee Law Review

No abstract provided.

Termination Of Parental Rights And The Void For Vagueness Doctrine: A Successful Attack On The Parens Patriae Rationale, David Day

Faculty Publications

No abstract provided.

Judicial Immunity And Sovereignty, Robert F. Nagel

Publications

No abstract provided.

Separation Of Powers And The Scope Of Federal Equitable Remedies, Robert F. Nagel

Publications

No abstract provided.

Planning Without Prices: The Taking Clause As It Relates To Land Use Regulation Without Compensation [Review Of Book Edited By Bernard H. Siegan], Robert H. Abrams

Journal Publications

This volume presents a series of papers delivered in 1975 at a conference entitled "The Taking Issue: An Economic Analysis." It is prefaced with an essay by Professor B. H. Siegan, the chairperson of the conference. The central paper, by M. Bruce Johnson, decries the present practice of land use regulation without compensation as "Planning Without Prices." Several distinguished commentators, both legal and economic, comment on Johnson's position. This review will examine some of the major topics discussed in the volume and raise a few objections to its analysis.

The Impact Of Pacifica Foundation On Two Traditions Of Freedom Of Expression, Stephen W. Gard, Jeffrey Endress

Cleveland State Law Review

The United States Supreme Court, in FCC v. Pacifica Foundation, had a magnificent opportunity to either begin the process of defining first amendment limitations on the scope of the authority of the FCC to regulate the content of broadcast expression, explicate a rational ground for the differential status of broadcasting, or perhaps both. The purpose of this article is not to debate the wisdom of the use of sensitive language on the electronic media or elsewhere. Nor is it our purpose to debate the substantive question of whether the Court reached the proper result in Pacifica, although we will necessarily …

Privacy Revisited: The Downfall Of Griswald, Martin R. Levy, C. Thomas Hectus

University of Richmond Law Review

This article presents a review of the Supreme Court's privacy decisions since Griswold v. Connecticut, and concentrates on Doe v. Commonwealth's Attorney for City of Richmond as a vehicle to review the Burger Court's trends in the privacy area. Doe is a good vehicle because, though decided without opinion, the summary affirmance of a lower court decision denying homosexuals constitutional protection resolved the tension developing between Douglas' penumbra theory of privacy, which was the opinion of the Court in Griswold, and the more modern substantive due process analysis. The authors conclude that the opinions in Griswold are dead as far …

Equal Protection And Welfare Legislation: The Need For A Principled Approach, Lynda D. Frazier

Seattle University Law Review

The Supreme Court decision in Maher v. Roe, denying an equal protection claim to Medicaid payments for elective abortions, illustrates the Court's inconsistent application of minimal rationality standards to socioeconomic legislation. This comment analyzes Maher in light of recent irreconcilable Supreme Court decisions involving similar equal protection claims to welfare payments. It shows that the Court's standard of review vacillates between deferential abdication to the legislature and unexplained judicial interventionism, and concludes that until the Court adheres to a consistent and principled approach to minimal rationality review, equal protection will remain an area for unrestrained imposition of judicial, rather …

Douglas V. Seacoast Products, Inc.: The Legal And Economic Consequences For The Maryland Oystery, Thomas B. Lewis, Ivar E. Strand Jr.

Maryland Law Review

No abstract provided.

Does Article V Restrict The States To Calling Unlimited Conventions Only? - A Letter To A Colleague, William W. Van Alstyne

Faculty Publications

From time to time, various state legislatures have adopted resolutions designed to require Congress to call a limited convention in which one or another possible amendments to the Constitution might be proposed. In 1967, thirty-two states, two short of the requisite two-thirds filed such resolutions requesting a convention for the purpose of considering an amendment to "overrule" the Supreme Court's principal reapportionment decisions. In 1971, Senator Ervin of North Carolina introduced a bill to provide guidelines to be followed upon a state call for a convention. This year, approximately twenty-eight states have adopted some kind of resolution for the purpose …

Fear, Risk And The First Amendment: Unraveling The Chilling Effect, Frederick Schauer

Faculty Publications

No abstract provided.

The Influence Of James B. Thayer Upon The Work Of Holmes, Brandeis, And Frankfurter, Wallace Mendelson

Vanderbilt Law Review

James Bradley Thayer was one of the major figures in American constitutional law if only because of his influence upon Holmes, Brandeis, and Frankfurter (to say nothing of Learned and Augustus Hand). Now almost forgotten, Thayer, along with Christopher Columbus Langdell, John Chipman Gray, and James Barr Ames, was one of the giants at the Harvard Law School during its "golden age"at the close of the nineteenth century.' His legal career began only after serious flirtation with divinity and the Greek and Latin classics. That his interest in such matters was never suppressed entirely is evident in his "A Western …

Federal Habeas Corpus And Ineffective Representation Of Counsel: The Supreme Court Has Work To Do, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The availability of federal habeas corpus relief for state criminal defendants has always borne a complex relationship to state rules barring defendants from litigating constitutional claims in state court because of procedural defaults in raising those claims. The Warren Court's landmark attempt to resolve this relationship was the 1963 decision in Fay v. Noia, which asserted that a state procedural forfeiture rule could not bar federal habeas review of a constitutional claim unless the defendant had "deliberately bypassed" the procedural opportunity to raise the claim; the Court defined "deliberate bypass" in terms of a defendant's intentional and voluntary relinquishment of …

Federalism, State Prison Reform, And Evolving Standards Of Human Decency: On Guessing, Stressing, And Redressing Constitutional Rights, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Constitution Goes To Harvard, Henry Paul Monaghan

Faculty Scholarship

Doctrinal disorder haunts a generation of Supreme Court decisions construing and applying the strands of the fourteenth amendment. But in a confusion contest between the Court and academic writers on constitutional law, picking a winner would be no simple task. Those of us in the academy, despite our comparatively ample time for reflection, have long resisted discussion of fundamental issues.

Professors Tribe and Michelman, two of our ablest writers, illustrate my point in their provocative recent essays on National League of Cities v. Usery. Neither purports to erect more adequate scaffolding for the decision's federalism foundation. Rather, each attempts …

The Enduring Significance Of Neutral Principles, Kent Greenawalt

Faculty Scholarship

Almost twenty years have passed since Herbert Wechsler delivered his Oliver Wendell Holmes lecture, Toward Neutral Principles of Constitutional Law. Although no one piece fully conveys the richness and rigor of Professor Wechsler's conception of constitutional law and the role of the judiciary, Neutral Principles sets out starkly, eloquently, and courageously some of his fundamental beliefs about constitutional decisionmaking. Shifts in jurisprudential fashion, as well as marked changes in constitutional doctrine and the composition of the Supreme Court, would make this an apt time to review what is almost certainly the most cited and most controversial discussion of constitutional …

Constitutional Limitations On Mandatory Teacher Retirement, Paula Shives Hoskins

Kentucky Law Journal

No abstract provided.

Recent Developments

American Indian Law Review

No abstract provided.

Prison Reform In The Federal Courts, Rebecca P. Dick

Buffalo Law Review

No abstract provided.

The Eleventh Amendment And Federally Protected Rights, John Patrick Deveney

Buffalo Law Review

No abstract provided.

Briggs V. Goodwin: Calling For A Reappraisal Of Prosecutorial Immunity From Constitutional Torts

William & Mary Law Review

No abstract provided.