Digital Commons Network^™

Ratification Of The Fourteenth Amendment In North Carolina, James E. Bond

Faculty Articles

The present article focuses on the ratification debate in North Carolina. That debate is instructive for several reasons. In the first place, the legislature considered the amendment on two separate occasions. In December 1866, the legislature overwhelmingly rejected it. Little more than eighteen months later, a new legislature overwhelmingly endorsed it. Second, North Carolinians fought several political battles between 1866 and 1868, and in those battles they often debated the meaning of the fourteenth amendment. Third, North Carolinians adopted a new constitution in 1868 and thereafter enacted reform legislation, much of which reflected their understanding of the concepts embodied in …

Judicial Review And Moral Progress: Searching For The Better Angels Of Our Nature, Harry F. Tepker

Faculty Articles

No abstract provided.

Judicial Federalism And Supreme Court Review Of State Court Decisions: A Sensible Balance Emerges, David A. Schlueter

Faculty Articles

State courts are free to exercise final authority as arbiters of state law and adopt state standards that protect individual rights more than federal law. While state courts have responded to such urgings with expansive rulings, they have not always been careful about spelling out in their decisions whether they were relying on state law, federal law, or both. This judicial imprecision creates a jurisdictional dilemma for the Supreme Court when it is asked to review the state court decision. If the state's decision rests on independent and adequate state grounds, the Court will apply judicial restraint and decline review. …

North Carolina's Medicaid Program: The Effects Of The Reagan-Era Budget Reductions, Ken Wing

Faculty Articles

This article is principally a description of the current program and the legislative and administrative changes made in response to the recent federal budget cuts, an assessment of the state's current cost containment strategy, and an analysis of the options facing North Carolina in the years to come.

New Jersey V. T.L.O.: The Supreme Court’S Lesson On School Searches, Gerald S. Reamey

Faculty Articles

Considerable disagreement persists as to the fourth amendment rights of students within schools. Particularly, this disagreement regards the extent to which fourth amendment rights possessed by students may frustrate reasonable attempts by educators to maintain the order necessary to preserve an educational environment.

In New Jersey v. T.L.O., the Supreme Court considered an argument advanced by the State of New Jersey that the “pervasive supervision” of school children diminishes the legitimate expectation of privacy a child may have in property “unnecessarily” brought to school. The Court concluded that the necessity of maintaining security and order in the educational environment was …

Judicial Enforcement Of Fair Housing Laws: An Analysis Of Some Unexamined Problems That The Fair Housing Amendments Act Of 1983 Would Eliminate, Willy E. Rice

Faculty Articles

Although the study by the National Committee Against Discrimination in 1979 could not determine the “true” incidence of racial discrimination, it did produce some startling results. For example, if a black person were to visit three private apartment complexes, the probability of his encountering racial discrimination would be sixty-one percent. Moreover, an increase in the number of visits dramatically increased the probability of discrimination. The probability of discrimination would be ninety percent if the black prospective renter were to visit seven complexes. The likelihood of discrimination in the sale of housing was also found to be high. For instance, if …

Criminal Law, John M. Schmolesky

Faculty Articles

No abstract provided.

Federalism And Supreme Court Review Of Expansive State Court Decisions: A Response To Unfortunate Impressions, David A. Schlueter

Faculty Articles

This article addresses the Burger Supreme Court’s approach to federalism and concludes that the Court seems to be reordering federal-state judicial relations. This reordering appears to be occurring at the expense of both state autonomy and individual liberties, especially the rights of state criminal defendants.

Although there certainly have been cases which suggest the Burger Court has a lopsided federalism, upon thorough analysis of these cases, this determination is shown to be incorrect. In fact, the present Court greatly respects state autonomy and the independence of state courts. Further, the Supremacy Clause requires the Court to serve as final arbiter …

Linguistic Diversity On The Airwaves: Spanish-Language Broadcasting And The Fcc, Bill Piatt

Faculty Articles

Hispanics constitute an increasingly substantial segment of the United States population. The Spanish language is an important part of the Hispanic culture, and is spoken in a large number of American homes. However, while the Federal Communications Commission (FCC) and the courts have required broadcasters to present programming to meet the needs of various minority groups, including the Hispanic community, there are no clear guidelines as to when this community has a right to programming in Spanish. Conversely, broadcasters have no guidelines for determining their obligation, if any, to present Spanish programming arises.

To resolve this issue, it is helpful …

Regulation In A Liberal State: The Role Of Non-Commodity Values, Richard B. Stewart

Faculty Articles

This Article aims to clarify the background understandings that inform and structure regulatory and administrative law - fields of law long criticized as undisciplined and unordered. A great appeal of the law and economics movement was its promise of a single jurisprudential framework sufficiently general and trenchant to provide a unifying order, here and elsewhere. That movement has provoked competing unitary theories. The inconclusive battle among these theories has reawakened skepticism as to the possibility of any successful unitary theory. The effort to structure law is now shifting to complex theories composed of several different conceptions of legal ordering. Such …

Women, Work, Welfare, And The Preservation Of Patriarchy, Sylvia A. Law

Faculty Articles

Historically, women have been regarded as unemployable, both because they have been considered physically and morally unsuited for wagework and because law and custom limited their ability to do wage labor by demanding that they do the work of homemaking and of caring for the young and the old. Today, however, most women are in the wage labor market. The central thesis of this Article is that present federal labor and welfare policy "resolve" the conflict between the traditional assumption that women cannot and should not work outside the home and the reality that they do, in ways that are …

Berger Redux, Stephen Gillers

Faculty Articles

Book review of Death Penalties: The Supreme Court's Obstacle Course by Raoul Berger, Harvard University Press, 1982.

Blackmail, Inc., Richard A. Epstein

Faculty Articles

Although the crime of blackmail seldom has been the subject of appellate litigation, it has received an extensive analysis within the scholarly literature.1 It might be expected that this analysis would focus upon the traditional concerns of criminal law: mens rea, permissible defenses, burdens of proof, and modes of sentencing. But in fact the query has been posed at a far more fundamental level: why is blackmail a crime at all? The frequent appearance of this question is troublesome, for it implicitly identifies a powerful cleavage between our most cherished instincts about criminal responsibility and our collective ability to justify …

Goals In Life Worth Pursuing, Harry T. Edwards

Faculty Articles

This publication is the reprint of a speech delivered by Judge Edwards at the Tenth Anniversary Banquet of the Florida State University Law Review, held in Tallahassee, Florida on November 12, 1982.

A Common Law For Labor Relations: A Critique Of The New Deal Labor Legislation, Richard A. Epstein

Faculty Articles

During the nineteenth century, the area of labor relations was governed by a set of legal rules that spanned the law of property, contract, tort, and procedure. There was no special set of rules for labor cases as such. Since the advent of the New Deal, these common law principles have largely given way to a complex body of statutory and administrative law that treats labor law as a separate and self-contained subject. The central question in this paper is whether there is any warrant for the special treatment that labor law receives today. I shall concentrate upon the Norris-LaGuardia …

Horse-Tradin': Legal Implications Of Livestock Bidding Practices, Drew L. Kershen

Faculty Articles

No abstract provided.

Potential Legal Facilitation Or Impediment Of Wind Energy Conversion System Siting, Richard L. Settle

Faculty Articles

The use of wind to produce energy has ancient roots. Prior to World War II over six million small windmills had been in operation in the United States. Then, during the post-war industrial boom, wind generation of energy was largely abandoned in favor of cheaper, more convenient fossil fuels. In recent years, the rapidly escalating price of imported oil and consequent search for alternative domestic energy sources has generated renewed interest in the utilization of wind energy. Most recently, perhaps most importantly, Congress has mandated that renewable energy sources be given first priority in planning the future of the Pacific …

The Impact Of Reagan-Era Politics On The Federal Medicaid Program, Ken Wing

Faculty Articles

The political future may be difficult to predict with specificity, but surely the level of publicly-sponsored medical care for the poor will be severely reduced in the coming years, leaving millions of poor Americans to rely on the charitable capacity of the nation's health care providers-or simply to go without. What follows is an attempt to support this characterization of Medicaid and its political future. Section I of this article is a description of Medicaid, its structure prior to 1981, and the legal and political history of its development and implementation. In addition to providing the basis for understanding the …

A Comparative Study Of British Barristers And American Legal Practice And Education, Marilyn Berger

Faculty Articles

The conduct of a trial in England is undeniably an impressive undertaking. Costume alone transports the viewer to Elizabethan times. Counsel and judges, bewigged and gowned, appear in a cloistered, regal setting, strewn with leather-bound books. Brightly colored ribbons of red, green, yellow and white, rather than metal clips and staples fasten the legal papers. After comparison with the volatile atmosphere and often unruly conduct of a trial in a United States courtroom it is natural to assume that the British model of courtroom advocacy provides an instructive model for its American counterpart.

Gentrification And The Law: Combatting Urban Displacement, Henry Mcgee, Donald C. Bryant Jr.

Faculty Articles

This article stresses a "push" perspective in its examination of how these legally structured forces have stimulated the return of the gentry to the central urban areas of the United States.

Title Vii, Equal Employment Opportunity, And Academic Autonomy: Toward A Principled Deference, Harry F. Tepker

Faculty Articles

No abstract provided.

A Theory Of Equal Protection, David A. Dittfurth

Faculty Articles

Equal protection must prohibit arbitrary governmental classifications or differentiation. The Supreme Court is a unique authority because of its power to create constitutional law and because of its symbolic position in this society as a bearer of the Constitution as aegis. The Fourteenth Amendment, which is derived from the Equal Protection Clause, is one of the most important areas of constitutional law.

Governmental decisionmakers must consider equal protection doctrine since they are frequently required to discriminate among those arguably qualified in order to determine who should bear the burden of governmental action or receive the benefits of governmental largess. A …

Legal Remedial Alternatives For Spouse Abuse In Texas, Gerald S. Reamey

Faculty Articles

There are numerous civil and criminal legal alternatives available in Texas for dealing with abuse between adult cohabitants. Current and proposed systems may protect victims more effectively and deter abusers, and empirical studies can reveal the direction legal systems should take to pinpoint the flaws and shortcomings in present legal responses to abuse.

The difficulty of assessing the extent of spousal abuse increases the difficulty of finding an effective legal remedy. Abuse, like rape, is far less likely to be reported than other crimes. In addition, spousal abuse is hard to define in any meaningful statistical manner because of the …

The Perils Of Judicial Statesmanship, James E. Bond

Faculty Articles

This article addresses the issue of what is fit for a Supreme Court Justice to do and whether the Court is acting within its constitutional authority. The United States is a democratic republic in which power flows from the people to elected representatives who remain answerable to the people. By contrast, the Justices sit for life and answer to no one. The Court is thus a profoundly antidemocratic institution. When and how the Court ought to exercise its anti-democratic authority is the only enduring important question in American constitutional law.

Labor Picketing And Commercial Speech: Free Enterprise Values In The Doctrine Of Free Speech, Cynthia Estlund

Faculty Articles

Peaceful labor picketing, once treated as an exercise of freedom of speech, has been implicitly relegated by the Supreme Court to the status of an economic activity subject to extensive regulation. This doctrine should be seriously reexamined, particularly in light of more recent developments giving full First Amendment protection to peaceful non-labor picketing and substantial First Amendment protection to commercial advertising. This Note argues that consumer picketing' that does not coerce the listener is expression entitled to First Amendment protection. In reaching this conclusion, the Note rejects both the argument that labor picketing is inherently coercive and the Court's recent …

An Economic Analysis Of The Choice Between Enterprise And Personal Liability For Accidents, Lewis A. Kornhauser

Faculty Articles

Consider an individual acting on behalf of an enterprise such as a private business or a public agency. During the course of his duties, the individual may injure a third party who bears no contractual relation to the enterprise. Tort law must then allocate the accident cost among three parties: the enterprise, actor and victim. In this Article, I shall assume that while the law has decided to shift the costs from the victim, it must choose between assigning the costs to the enterprise or to the individual. This Article examines a single, important factor relevant to the choice between …

The Writ Of Prohibition In Arkansas, William Murray Tabb

Faculty Articles

No abstract provided.

Taxation, Regulation, And Confiscation, Richard A. Epstein

Faculty Articles

The recent studies on regulation have underscored an emerging truth in the study of law and economics. The traditional modes of classification and analysis no longer suffice to organize the study of legal institutions and legal rules. In a former day it was quite fashionable to place public and private law into rigid, separate compartments, each governed by its own set of rules. Within the area of private law, it was possible to draw sharp and clear lines between contract, tort, property and restitution. Within public law, it was fashionable to study the various techniques of social control in isolation …

The Written Brief For Criminal Cases In Oklahoma, Drew L. Kershen

Faculty Articles

No abstract provided.

Constitutional Law—Presidential Immunity—The President Is Absolutely Immune From Civil Damages Liability For Acts Done Within The “Outer Perimeter” Of His Official Capacity (Casenote), Laura H. Burney

Faculty Articles

The Supreme Court theorized absolute immunity for the President must be found in the separation of powers doctrine. Because of the broad range and sensitive nature of the President's responsibilities, his constant visibility, and the judicial deference he has historically been accorded, the Court concluded in Nixon v. Fitzgerald that civil damages suits would unduly distract the President from his official duties. Furthermore, because the President's actions can affect innumerable people, the Court feared the scrutiny inherent in civil damages suits would be overly intrusive. Accordingly, the Court considered it too difficult to align a particular result with one of …