Digital Commons Network^™

Bodily Evidence And Rule 312, M.R.E., David A. Schlueter

Faculty Articles

n addressing the issues of obtaining bodily evidence, such as bodily fluids, from a suspect, Rule 312 of the Military Rules of Evidence must be considered in conjunction with the issues of self-incrimination, due process, and the Fourth Amendment. The Rule describes the procedures for collection of bodily evidence of service members. For example, a service member may not invoke the right against self-incrimination for external bodily evidence, but may when bodily fluids or cavity searches are requested. Any nonconsensual search may be conducted if it is both reasonable and performed under one of the authorized procedures of Rule 312. …

The Jury Selection Act Of 1879: Theory And Practice Of Citizen Participation In The Judicial System, Drew L. Kershen

Faculty Articles

No abstract provided.

An Analysis Of The Texas Condominium Act: Maintenance And Operation Of A Condominium Project, Faye M. Bracey

Faculty Articles

The Texas Condominium Act (TCA) is the type of condominium statute often referred to as “first-generation” legislation. It defines the type of property that may provide the basis for a condominium project, and states the minimum number of units necessary to constitute a project. The Act describes the property interest held by each unit owner and the boundaries of his or her unit, while providing for exclusive ownership of individual units with joint interest in the general and limited common elements.

One criticism of “first-generation” legislation has been that it provides for the establishment of the condominium, but fails to …

Comments On The Article By R. E. Tournier “Alcoholics Anonymous As Treatment And As Ideology”, Donald W. Goodwin, Mark B. Sobell, Linda C. Sobell, William Madsen, Robert A. Moore, Chaim M. Rosenberg, Harold W. Demone Jr., Gerald D. Shulman

Faculty Articles

No abstract provided.

Preferential Remedies And Affirmative Action In Employment In The Wake Of Bakke, Harry T. Edwards

Faculty Articles

Although the Court's opinion in Bakke is inconclusive on a number of important issues and does not purport to give definitive answers on questions pertaining to employment discrimination, it has at least caused a surprisingly large number of people of good will to rethink their commitments to affirmative action and to express a more ready willingness to be forthright and open about efforts taken to cure problems associated with race and sex bias in this nation. Unfortunately, expressions of good will will not cure discrimination and, more unfortunately, virtually nothing is being done by Congress to give relief on the …

The Constitutional Rights Of Corporations Revisited: Social And Political Expression And The Corporation After First National Bank V. Bellotti, Charles O'Kelley

Faculty Articles

The Supreme Court has addressed only a few occasions the extent to which corporations enjoy those constitutional rights so fundamental to private citizens. In this article Professor O'Kelley discusses the inherent difficulty in applying familiar constitutional principles to corporations and examines those cases in which the Supreme Court has either extended or denied to corporations various constitutional rights. Finding that two underlying conceptual doctrines -- the Field rational and the associational rationale -- have guided the Court in previous decisions in this area, he then applies these doctrines in an analysis of the recent Supreme Court decision in First National …

Plea Bargaining: The Experiences Of Prosecutors, Judges, And Defense Attorneys, James E. Bond

Faculty Articles

James E. Bond reviews Heuman’s Plea Bargaining: The Experiences of Prosecutors, Judges, and Defense Attorneys.

Personal Jurisdiction Under Article 2, Ucmj Whither Russo, Catlow, And Brown?, David A. Schlueter

Faculty Articles

The question of personal jurisdiction for military courts in cases of invalid enlistment creates several legal issues. Invalid enlistment cases exist in a legal gray area due to the uncertainty of whether the cases should be tried by civilian or military courts. The age and competence of the enlistee are material to determining jurisdiction. The conduct of the recruiter directly affects whether the enlistee was competent. Congress amended Article 2 of the Uniform Code of Military Justice in order to address these problems. The amendment resolves many of the lingering jurisdictional issues created by Russo and Brown, but fails to …

Wagner, Valadez And Harrison: A Definitive Enlistment Trilogy, David A. Schlueter

Faculty Articles

One area where enlistment law has received keen scrutiny is the subject of enlistment contracts vis a vis the question of personal jurisdiction. The Court of Military Appeals’s decision in United States v. Wagner served as the keystone for the Valadez and Harrison decisions. The Court in Wagner established the concept of constructive enlistment, which it subsequently relied on in Valadez and Harrison.

In Wagner, the court addressed whether a regulatory disqualification in and of itself voids the original enlistment contract for purposes of court-martial jurisdiction. The Court stated the regulation in question was not sufficient to void Wagner’s enlistment …

The Younger Abstention: Primary State Jurisdiction Over Law Enforcement, David A. Dittfurth

Faculty Articles

The abstention doctrines have received much attention by the United States Supreme Court over the last decade. These doctrines are represented by judicial rules that require federal trial courts, in appropriate circumstances, to abstain from exercising subject matter jurisdiction although they clearly have the power to do so. As a result, the particular case is shunted back into a state judicial system for determination.

The most confusing of these doctrines is the one arising in major part from Younger v. Harris. In short, this case stands for the rule that, once a state criminal prosecution has been initiated, a federal …

Texas Capital Sentencing Procedures: The Role Of The Jury And The Restraining Hand Of The Expert, Peggy C. Davis

Faculty Articles

The article explores the role of the jury and the restraining hand of the expert in capital sentencing procedures in Texas. The moral, social and legal judgment made by a jury deciding the appropriateness of a death sentence is much like that of a jury deciding the culpability of a defendant who raises an insanity defense. It has been determined that in view of the complicated nature of the decision to be made the insanity defense is peculiarly apt for resolution by the jury. And, it has been required that trial judges and appellate judges ensure that the jury base …

Review: Quantitative Methods And Legal Decisions, Lea Brilmayer, Lewis A. Kornhauser

Faculty Articles

Book review of Michael Finkelstein's Quantitative Methods in Law: Studies in the Application of Mathematical Probability and Statistics to Legal Problems, Free Press, 1978.

International Regulation Of Toxic Chemicals, Philip G. Alston

Faculty Articles

This Article examines three aspects of the existing situation in an effort to highlight the obstacles to effective international regulation, the benefits to be derived from such regulation, and the means to hasten cooperation among nations. Section I reviews the present international setting of chemical assessment and control. The discussion underscores the many institutional factors that act as barriers to international regulation, including: the dismal quality of existing test data; the reluctance of manufacturers and national governments to make data available on an international level for fear of jeopardizing their competitive market positions; and the lack of the international chemical …

Introduction, Bernard D. Reams Jr.

Faculty Articles

Volume Two of Immigration and Nationality Law Review continues to represent a centralized annual forum for the paramount articles concerning American immigration laws. In addition to the law review articles selected by the editor for inclusion in this second volume, two original essays by practitioners in immigration law are featured. Mark Mancini examines excludability for lack of a valid labor certification as a species of fraud, and Dan P. Danilov reviews and discusses recent changes regarding nonimmigrant and immigrant visas for workers, businessmen, managers and investors. The Review’s goal remains that of providing the practicing lawyer and legal researcher with …

Title Vi And Health Facilities: Forms Without Substance, Ken Wing

Faculty Articles

Title VI of the Civil Rights Act of 1964 prohibits racial discrimination by recipients of federal funds, including institutions that provide health care. This article assesses the current status of the Title VI enforcement program for health facilities and the problem of racial discrimination in these institutions that the Act is trying to resolve. After analyzing the legislative and political history of Title VI as it relates to health facilities, the author concludes that Title VI enforcement has been ineffective and misdirected and he suggests changes that could improve the program's implementation.

Child, Family And State: Problems And Materials On Childrenand The Law, Henry Mcgee

Faculty Articles

Professor McGee reviews THE ANTITRUST PARADOX: A POLICY AT WAR WITH ITSELF, by Robert H. Bork. Professor McGee argues that it would be easy to balance the allocative efficiency and the productive efficiency effects of various transactions if we could generate information for the economic models as easily as it is done in the model of perfect competition-simply by assuming it. Since information is costly in the real world, however, we must develop proxies or general rules, formed with the guidance of economic analysis, that seem likely to produce more good than harm as the law is applied to various …

Pyramids Of Sacrifice? Problems Of Federalism In Mandating State Implementation Of National Environmental Policy, Richard B. Stewart

Faculty Articles

Environmental policy in the United States has reached a difficult impasse. Over the past decade, responsibility for setting environmental policy has increasingly shifted from state and local authorities to the federal government. Reacting to the perceived inability of the states to check or reverse environmental degradation, Congress has enacted comprehensive statutes establishing environmental standards and control strategies. The federal government, however, is dependent upon state and local authorities to implement these policies because of the nation's size and geographic diversity, the close interrelation between environmental controls and local land use decisions, and federal officials' limited implementation and enforcement resources. The …

The Coming Of Age Of The Burger Court: Labor Law Decisions Of The Supreme Court During The 1976 Term, Harry T. Edwards

Faculty Articles

The diversity of subject matter of the cases before the Court in 1976 makes the Burger Court's ideological coherence more significant. It was not simply a case of the conservative wing of the Court joining together on a single issue. Rather, it was a demonstration of both ideological and intellectual consistency over a spectrum of discrete issues. This article will review the cases of the 1976 Term to assess the impact of the Nixon Bloc on these areas and to analyze the effect of the 1976 decisions on future labor cases.

A Different Look At The Taxation Of Corporate Distribution And Shareholder Gain, Charles O'Kelley

Faculty Articles

The taxation of corporate distributions and shareholder gain is an area of the Internal Revenue Code which has fostered a seemingly never-ending yet never-successful attempt by the Courts and Congress to design a coherent, non-discriminatory regime. In this article, Professor O'Kelley sets forth a proposal for a logical system for treating corporate distributions to shareholders which would strengthen the double tax scheme, and eliminate its present loopholes.

The Unconstitutionality Of Limitations Upon Donations To Political Committees In The 1976 Federal Election Campaign Act Amendments, David Skover

Faculty Articles

The Supreme Court's decision in Buckley v. Valeo partially dismantled the electoral reform program formulated in the 1974 Amendments to the Federal Election Campaign Act of 1971. The Court declared that the Act's limitations on expenditures by candidates and independent expenditures in federal elections unconstitutionally burdened political speech and association, while it upheld restrictions on contributions to candidates. After five months of deliberation, Congress attempted to salvage its design for electoral reform by enacting the Federal Election Campaign Act Amendments of 1976. Responding to Buckley's approval of restrictions on political contributions, Congress imposed new limits on "contributions" to political committees. …

The National Labor Relations Act And The Forgotten First Amendment, James E. Bond

Faculty Articles

In this article Professor Bond discusses several points. First, the freedom of association principle, whatever its constitutional paternity, is now treated by the Court as one among first amendment equals. It is thus a fundamental right which the government may limit only for the most compelling reasons and then only in that way which least intrudes upon its exercise. Second, the relationship of an employee both to his employer and to his fellow employees involves associational rights of the kind guaranteed and protected by the first amendment. Third, the exclusive representation rule' of the National Labor Relations Act seriously interferes …

The Enlistment Contract: A Uniform Approach, David A. Schlueter

Faculty Articles

The author explores the history of various jurisdictional and administrative issues that arise under consideration of a service member’s enlistment contract. He proposes a change to the Uniform Code of Military Justice to codify the constructive enlistment doctrine for establishing personal court-martial jurisdiction over service members whose enlistment contracts and entry onto active duty were facilitated by recruiter misconduct. The proposal later became part of amendment to Art. 2, U.C.M.J..

Vicinage--Part Ii, Drew L. Kershen

Faculty Articles

No abstract provided.

Constructive Enlistments: Alive And Well, David A. Schlueter

Faculty Articles

Despite the predicted demise of the doctrine of constructive enlistments, recent case law from the Courts of Military Appeals has extended its existence. The constructive enlistment is recognized as a means of changing one’s status from civilian to servicemember where some deficiencies exist in the formal enlistment process.

In a trio of cases, United States v. Brown, United States v. Catlow, and United States v. Russo, the Court of Military Appeals laid a firm foundation for estopping the government from relying upon constructive enlistments in order to establish in personam court-martial jurisdiction. This trio of cases raised more questions than …

Unequal Justice: Lawyers And Social Change In Modern America, By Jerold S. Auerbach (Book Review), David A. Dittfurth

Faculty Articles

In Unequal Justice, Jerold S. Auerbach attempts to prove that the legal profession has failed to adequately pursue equality of justice. He finds little evidence that the legal profession or its dominant factions have made an adequate effort to assure the provision of legal services according to need. On the contrary, most of the historical evidence presented in this book leads one to believe that the legal profession has accepted profit as its real goal.

The author contends that, because the legal profession is responsible for formulating and applying law in a very legalistic society, it serves a very important …

Illusion And Contradiction In The Quest For A Desegregated Metropolis, Henry Mcgee

Faculty Articles

A decade of litigation in which the central issue of discrimination essentially was uncontested thus far has failed to disestablish racial segregation or produce desperately needed low-income housing for Chicago blacks. Recently, the unconcluded litigation has produced a unanimous United States Supreme Court decision exposing suburban racial sanctuaries to the possibility of integrated public housing units. Although the first-named plaintiff in the suit, Dorothy Gautreaux, did not survive the decision, the extent of her posthumous triumph is the central theme of this article. Although Gautreaux superficially indicates that a federal judge has the power to desegregate federally subsidized housing and …

Unconscionability In Standard Forms, Lewis A. Kornhauser

Faculty Articles

This Comment argues that many exchanges governed by standard form contracts, though untainted by procedural defects and hence not currently subject to judicial control, may exhibit oppressive clauses or exorbitant prices. The sources of these market imperfections may be more amenable to legislative than judicial correction.

National Health Planning And Resources Development Act Of 1974: Implications For The Poor, Ken Wing, A. G. Schneider

Faculty Articles

The National Health Planning and Resources Development Act of 1974, was signed into law on January 4, 1975, following a lengthy legislative struggle. During the past 11 months, the fighting among private and public health interests has continued, although the principal arena has shifted from the Congress to the Department of Health, Education and Welfare, which is charged with primary responsibility for implementing the law. While the final outcome of this political conflict is still difficult to foresee, some informed estimates can already be made concerning the implications of this legislation for the poor. This article will not summarize the …

Introduction, Bernard D. Reams Jr.

Faculty Articles

The law of immigration and nationality is becoming an increasingly important topic in legal literature. This introductory volume of Immigration and Nationality Law Review represents an attempt to provide a centralized annual forum for the leading articles in this area of American law. Normally, leading legal periodical articles on the subjects of immigration, nationality, and alienage, are spread throughout various law journals. At best, materials germane to this subject have occasionally appeared in special law review issues or symposium volumes published by various American law schools. However, considering the growing relevance and concerns of immigration and nationality in the United …

Charter Air Travel: Paper Airplanes In A Dogfight (Comment), Gerald S. Reamey

Faculty Articles

Air transportation has traditionally been considered the most expensive form of travel. In that price context, the charter is an anomaly. Supplemental air carriers have built multi-million dollar businesses exclusively from the charter trade, and millions of passengers have flown by charter.

An anomaly, however, is inherently suspect and becomes proportionally more suspect as it infringes upon the status quo. Resolution of questions concerning the viability of the charter concept lies in a full understanding of the different charter forms available, the possible alternatives to these forms, the advantages and disadvantages of each, and the best way to accomplish the …