Law Commons^™

Electronic Tracking Devices And The Fourth Amendment: Knotts, Karo, And The Questions Still Unanswered, Clifford S. Fishman

Scholarly Articles

This article will examine the Knotts and Karo decisions, analyze the unanswered questions relating to the use of electronic tracking devices, and outline legislation that might best resolve those questions and strike a proper balance between the often conflicting values of individual privacy and effective law enforcement.

Comment: Zauderer V. Office Of Disciplinary Counsel, Geoffrey R. Watson

Scholarly Articles

No abstract provided.

Freedom And Equality In The Religion Clauses, John H. Garvey

Scholarly Articles

The Supreme Court has been extremely puzzled about how to treat the distribution of public benefits when the pattern of distribution may cause individuals to alter their preferences in making constitutionally protected choices. When dealing with the freedom to choose an abortion, for example, the Court held that the Hyde Amendment was constitutional because the government did not interfere with freedom when all it did was offer money to make the option it preferred (childbirth) more attractive. In free speech cases, the Court has said that when the government opens up public property or offers financial incentives to speakers it …

Freedom And Choice In Constitutional Law, John H. Garvey

Scholarly Articles

The constitutional rights of children, the mentally ill, and other legally incompetent persons have been the subject of much litigation in the past twenty years. In this Article, Professor Garvey develops a general theory to explain the different ways in which persons of diminished capacity can be said to enjoy constitutional protections. He first notes that, of the various constitutional provisions, only one kind -freedoms, which protect the right to make choices - pose serious difficulties when applied to persons of diminished capacity. He then proposes a hierarchy of ways in which we can attribute freedoms to such persons: the …

Pen Registers And Privacy: Risks, Expectations, And The Nullification Of Congressional Intent, Clifford S. Fishman

Scholarly Articles

In United States v. New York Telephone Co. the Supreme Court first ruled that an ordinary search warrant sufficed to authorize law enforcement use of a pen register. Additionally, the Court ruled that a federal district judge possessed the authority to include within the search warrant an order compelling a telephone company to assist the government by installing a pen register on the targeted telephone.

In Smith v. Maryland, the Court considered the legality of pen register surveillance conducted by a telephone company pursuant to an informal police request, that is, without a warrant or other court order. In holding …

The Minimization Requirement In Electronic Surveillance: Title Iii, The Fourth Amendment, And The Dread Scott Decision, Clifford S. Fishman

Scholarly Articles

This article addresses the problems raised by the Title III minimization requirement with particular emphasis on the Supreme Court's decision in Scott. Section I outlines the provisions of Title III that govern the issuance of eavesdropping warrants and the use of derivative evidence. Section II discusses the minimization provision and the definitional problems it presents. Section III analyzes judicial treatment of the minimization provision in light of Scott, and factors that have been held to affect a monitoring agent's ability to minimize interceptions. Section IV discusses judicial approaches to minimization litigation with respect to the problems of standing, guidelines for …

Children And The Idea Of Liberty: A Comment On The Civil Commitment Cases, John H. Garvey

Scholarly Articles

Despite all the talk about the rights of children in the past few years, it has not often been necessary to parse conflicting claims by parents and children, and to give independent constitutional content to the latter. Before 1979, the Supreme Court had reached the merits in only one case presenting that issue. The problem will arise whenever the state lends its aid to the parents in a familial dispute, and in time will doubtless provoke litigation in which outnumbered children claim the benefit of most of the Bill of Rights. Until now, debate has focused on the procedural and …

Judicial Consideration Of The Delegation Of Legislative Power To Regulatory Agencies In The Progressive Era, John H. Garvey

Scholarly Articles

Despite the vigorous debate which it occasioned in other circles, the practice of delegating legislative power to regulatory agencies which began at the end of the nineteenth century was never seriously questioned by American courts during the progressive era. This is not to say that the judiciary saw no threat posed by government by institutions of a form undreamed of at the time the Constitution was framed. Since the appearance of the first regulatory commissions, the courts have shown a concern to protect individual rights which recently may be seen in the insistence on procedural safeguards in agency adjudication and …

The Interception Of Communications Without A Court Order: Title Iii, Consent, And The Expectation Of Privacy, Clifford S. Fishman

Scholarly Articles

No abstract provided.

Note, Abortion And The Constitution: The Need For A Life-Protective Amendment, Robert A. Destro

Scholarly Articles

As a result of the recent congressional hearings held on proposed constitutional amendments designed to overturn the rulings of the United States Supreme Court concerning abortion, the abortion controversy has once again become a major topic of public interest. The author seeks to identify the two distinct areas of debate involved in the issue and to discuss, in particular, the central topic raised by many of the proposals-the rights of the unborn.

The Physician's Decision Making-Role In Abortion Cases, Raymond B. Marcin, Julia Marcin M.D.

Scholarly Articles

No abstract provided.

Note, Unenumerated Rights – Substantive Due Process, The Ninth Amendment And John Stuart Mill, George E. Garvey

Scholarly Articles

The Supreme Court has always protected enumerated rights and will, of course, continue to do so, following standards and guidelines it has established. This comment will confine itself to the protection of unenumerated rights. Initially, it will explore the doctrine used in the past to void laws violative of unenumerated rights-substantive due process. Then the ninth amendment will be suggested as a source of protected behavior, with John Stuart Mill's On Liberty being offered as a criterion for the determination of ninth amendment rights.

The Development Of The Right Of Assembly: A Current Socio-Legal Investigation, George P. Smith Ii

Scholarly Articles

It will be the purpose of this article to assay the historical evolution of the freedom of assembly, noting first its development in England and later in America and finally its current position in the twentieth century. Even though the rights of free speech, association, and religion are inescapably drawn into case discussions of freedom of assembly, effort will be made to confine the consideration to the pertinent assembly problems. In addition to considering the fundamental legal propositions embodied in this right, as well as its raison d'etre, thought and discussion will be given to the sociological interpretations of the …

The Right To Bear Arms: A Phenomenon Of Constitutional History, Ralph J. Rohner

Scholarly Articles

Most discussions of the right to bear arms-however superficial-begin by noting the specific language of the second amendment to the United States Constitution, which provides:

A well regulated Militia being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.

And in various similar provisions, the constitutions of thirty-five states guarantee expressly the right to bear arms. Though it is submitted below that there may be significant distinctions between the protection afforded by the federal and state constitutions, for our purposes here we are concerned primarily with the …

The Conscientious Objector Exemption As An Establishment And An Accommodation Of Religion, Raymond B. Marcin

Scholarly Articles

No abstract provided.

Can Congress Denationalize? The Supreme Court's View In Kennedy V. Mendoza-Martinez, Ralph J. Rohner, Jean J. Provost Jr.

Scholarly Articles

In an age when perhaps the foremost concern of the legal profession is the status and protection of the rights of individuals, the few decided cases on the right to citizenship-the most basic of all rights, the "right to have rights"- are of special significance. Since 1950, but prior to this Term, only two Supreme Court cases directly confronted the constitutional questions inherent in an assertion by Congress of the right to separate a person from his nationality. These cases, decided on the same day in 1957, were scarcely reconcilable with each other; now, in 1963, the Supreme Court has …