Law Commons^™

Legal Perspectives On The Interstate Incidence And Shifting Of State And Local Taxes, Walter Hellerstein

Scholarly Works

Lawyers, especially constitutional lawyers, have long been concerned with the problems associated with the interstate incidence and shifting of state and local taxes. The Constitution has frequently been invoked as a restraint on the states' power to levy taxes on persons, property, or activities outside their borders. Yet the lawyer's view of tax incidence embodied in these constitutional disputes often bears little resemblance to the economist's. In recent years, however, lawyers have sought to import economic concepts of shifting and incidence into the legal analysis of the constitutional limitations on the states' power to export tax burdens to residents of …

Monzo Raises Taxing Issue, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Mining With Mr. Justice Holmes, E. F. Roberts

Cornell Law Faculty Publications

No abstract provided.

Constitutional Law -- In Re Grand Jury Matter, Gronowicz: Qualified Newsperson's Privilege Does Not Extend To Authors, Elizabeth De Armond

All Faculty Scholarship

No abstract provided.

Justice Jackson's Flag Salute Legacy: The Supreme Court Struggles To Protect Intellectual Individualism, Leora Harpaz

Faculty Scholarship

The first amendment has long protected a complex and interwoven range of individual interests. Protected freedoms often involve expressive activities-religion, speech, the press, assembly, and association. The first amendment also protects an individual's freedom to refrain from expressive activity.

Two distinct kinds of liberty interest support the right to refrain from expressive activity. First, individuals have an interest in not being forced to reveal information about personal beliefs or associations. Such a claim may arise in a variety of contexts: a reporter may not wish to reveal the identity of news sources for fear of discouraging future revelations; a public …

First Amendment Restrictions On Title I Programs In Private Schools, Laura Gaston Dooley

Law Faculty Publications

No abstract provided.

To Have And To Hold: The Marital Rape Exemption And The Fourteenth Amendment, Anne Dailey

Faculty Articles and Papers

No abstract provided.

How California Governs The News Media, Jon H. Sylvester

Publications

While California legislation is generally regarded as progressive, it is not immediately clear what "progressive" means when such democratic values as the right to information and the right to privacy conflict. This article surveys how certain state laws impact the operations of the print and broadcast news media. Laws affecting the media include a number of traditional subject areas, including constitutional law, torts, evidence, and civil, criminal and administrative procedure. The topics discussed herein are defamation, invasion of privacy, cameras in the courtroom, shield law (or "reporter's privilege"), publication of recorded conversations and pilfered documents, and legislation regarding open meetings …

How The States Govern The News Media - A Survey Of Selected Jurisdictions, Jon H. Sylvester

Publications

This article examines the statutory and decisional law of California, the District of Columbia, Massachusetts, New York and Texas to determine the similarities and differences of their laws regarding defamation, invasion of privacy, cameras in the courtroom, shield laws (reporter's privilege), broadcast of recorded conversations, publication of pilfered documents, open records legislation, and open meetings legislation.

Book Review: The Constitution In The Supreme Court: The First Hundred Years, 1789-1888., David S. Bogen

Faculty Scholarship

No abstract provided.

Economic Analysis Of Liberty And Property: A Critique, Peter N. Simon

Publications

No abstract provided.

Whose Right Is It Anyway?: Rethinking Competency To Stand Trial In Light Of The Synthetically Sane Insanity Defendant, Linda C. Fentiman

Elisabeth Haub School of Law Faculty Publications

This article's thesis is that given the magnitude of the insanity defendant's fundamental constitutional liberties--his constitutional right to present and conduct his defense, his privilege against self-incrimination, his constitutional right to privacy and bodily integrity, and his common law right to give informed consent to medical treatment--the state's interest in assuring the defendant's competency must give way if he chooses to waive his right to be tried while competent. Most, if not all, of the purposes of the prohibition against trying an incompetent defendant can be met even if the defendant is tried without psychotropic medication as long as he …

Arrest, James Boyd White

Book Chapters

The constitutional law of arrest governs every occasion on which a government officer interferes with an individual’s freedom, from full-scale custodial arrests at one end of the spectrum to momentary detentions at the other. Its essential principle is that a court, not a police officer or other executive official, shall ultimately decide whether a particular interference with the liberty of an individual is justified. The court may make this judgment either before an arrest, when the police seek a judicial warrant authorizing it, or shortly after an arrest without a warrant, in a hearing held expressly for that purpose. The …

Congressional Power And Free Speech: Levy’S Legacy Revisited, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

The Law Of Confessions: Part I, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Law Of Confessions: Part Ii, Paul C. Giannelli

Faculty Publications

No abstract provided.

Compelling Testimony In Alaska: The Coming Rejection Of Use And Derivative Use Immunity, Jeff M. Feldman

Articles

Until 1972, when the Supreme Court upheld a federal use andderivative use immunity statute in Kastigar v. United States, virtually every court that considered the issue of the compulsion of testimony favored transactional immunity. It appears that most courts interpreted the Supreme Court's 1892 decision in Counselman v. Hitchcock as finding only transactional immunity constitutional. Since Kastigar, the Alaska Supreme Court has had several opportunities totake sides in the debate over the grant of immunity constitutionally required to compel testimony. On each such occasion, the court has expressed a preference for transactional immunity, but has carefullyavoided resolving the …

Reaching The Limits Of Traditional Constitutional Scholarship (Book Review), H. Jefferson Powell

Faculty Scholarship

Reviewing Laurence H. Tribe, Constitutional Choices (1985)

Subpoenas To Criminal Defense Lawyers: Proposal For Limits, Ellen Y. Suni

Faculty Works

No abstract provided.

Congressional Power And Free Speech: Levy’S Legacy Revisited, William W. Van Alstyne

Faculty Publications

No abstract provided.

Constitutional Rights Without Remedies: Judicial Review Of Underinclusive Legislation, Bruce K. Miller, Neal Devins

Faculty Publications

No abstract provided.

Constitutional Interpretation—The Uses And Limitations Of Original Intent, Thomas B. Mcaffee

Scholarly Works

It is fitting that in the decade of the Bicentennial of the Constitution we have seen a renewal of debate over the meaning of the Constitution and what is required to remain true to it. An aspect of that debate has concerned constitutional interpretation and the role of “original intent”—or perhaps more broadly, “original context”—in any proper approach to the interpretive process. Unfortunately, the debate is frequently approached from virtually an either/or perspective, as though the intent of the Framers must either control all constitutional questions or be used as no more than window-dressing. While some advocates of original intent …

Constraints Of Power: The Constitutional Opinions Of Judges Scalia, Bork, Posner, Easterbrook, And Winter, James G. Wilson

Law Faculty Articles and Essays

This article completes a two-part series studying the constitutional jurisprudence of Judges Antonin Scalia, Richard Posner, Robert Bork, Frank Easterbrook, and Ralph Winter Jr., five conservative academics appointed by President Reagan to the United States Court of Appeals. Judge Scalia has recently been appointed to the Supreme Court of the United States. In a previous article, published in the last issue of the University of Miami Law Review, I evaluated these five jurists' constitutional scholarship by contrasting their views with those of Edmund Burke, the originator of political conservative theory. That article tested Burke's wariness of political abstractions and his …

Debating Conviction Against Conviction — Constitutional Considerations On The Sanctuary Movement, Ruti G. Teitel

Articles & Chapters

No abstract provided.

The Supreme Court And State Protectionism: Making Sense Of The Dormant Commerce Clause, Donald H. Regan

Articles

For almost fifty years, scholars have urged the Court to "balance" in dormant commerce clause cases; and the scholars have imagined that the Court was following their advice. The Court has indeed claimed to balance, winning scholarly approval. But the Court knows better than the scholars. Despite what the Court has said, it has not been balancing. It has been following a simpler and better-justified course. In the central area of dormant commerce clause jurisprudence, comprising what I shall call "movement-of-goods" cases), the Court has been concerned exclusively with preventing states from engaging in purposeful economic protectionism. Not only is …

Burden Of Proof, James Boyd White

Book Chapters

Although the Constitution does not mention burden of proof, certain principles are widely accepted as having constitutional status. The first and most significant of these is the rule that in a criminal case the government must prove its case ‘‘beyond a REASONABLE DOUBT.’’ This is the universal COMMON LAW rule, and was said by the Supreme Court in IN RE WINSHIP (1970) to be an element of DUE PROCESS. This standard is commonly contrasted with proof ‘‘by a preponderance of the evidence’’ or ‘‘by clear and convincing evidence.’’ The standard of proof is in practice not easily susceptible to further …

Compulsory Process, Right To, Peter K. Westen

Book Chapters

The first state to adopt a constitution following the Declaration of Independence (New Jersey, 1776) guaranteed all criminal defendants the same ‘‘privileges of witnesses’’ as their prosecutors. Fifteen years later, in enumerating the constitutional rights of accused persons, the framers of the federal Bill of Rights bifurcated what New Jersey called the ‘‘privileges of witnesses’’ into two distinct but related rights: the Sixth Amendment right of the accused ‘‘to be confronted with the witnesses against him,’’ and his companion Sixth Amendment right to ‘‘compulsory process for obtaining witnesses in his favor.’’ The distinction between witnesses ‘‘against’’ the accused and witnesses …

Hearsay Rule, Peter K. Westen

Book Chapters

The hearsay rule is a non constitutional rule of evidence which obtains in one form or another in every jurisdiction in the country. The rule provides that in the absence of explicit exceptions to the contrary, hearsay evidence of a matter in dispute is inadmissible as proof of the matter. Although jurisdictions define "hearsay" in different ways, the various definitions reflect a common principle: evidence that derives its relevance in a case from the belief of a person who is not present in court—and thus not under oath and not subject to cross-examination regarding his credibility—is of questionable probative value.

Jury Discrimination, James Boyd White

Book Chapters

Jury discrimination was first recognized as a constitutional problem shortly after the CIVIL WAR, when certain southern and border states excluded blacks from jury service. The Supreme Court had little difficulty in holding such blatant racial discriminationinvalid as a denial of the equal protection of the laws guaranteed by the recently adopted Fourteenth Amendment. But, beyond such obvious improprieties, what should the principle of nondiscrimination forbid? Some kinds of ‘‘discrimination’’ in the selection of the jury are not bad but good: for example, those incompetent to serve ought to be excused from service, whether their incompetence arises from mental or …

Picketing, Theodore J. St. Antoine

Book Chapters

Picketing typically consists of one or more persons patrolling or stationed at a particular site, carrying or wearing large signs with a clearly visible message addressed to individuals or groups approaching the site. Some form of confrontation between the pickets and their intended addressees appears an essential ingredient of picketing. Congress and the National Labor Relations Board have distinguished between picketing and handbilling, however, and merely passing out leaflets without carrying a placard does not usually constitute picketing. What stamps picketing as different from more conventional forms of communication, for constitutional and other legal purposes, ordinarily seems to be the …