Law Commons^™

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin Belsky

Martin H. Belsky

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the "triple whammy" of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

The Religion Clauses And The “Really New” Federalism, Martin H. Belsky

Martin H. Belsky

It had been a principle of contemporary constitutional law that once a provision of the Bill of Rights was “fully” incorporated, such as with the First Amendment, it established a constitutional minimum. A state could provide, either by constitutional or statutory provision, additional protections to its citizens, so long as this did not create a conflict with other federal law. Another principle, until recently, was that the federal government had the ability by legislation to provide additional or enhanced rights to Americans, and that these rights applied uniformly to residents of all states.

The application of these two principles?at least …

Preparing New Students For Legal Practice In A "Flat World", Martin H. Belsky

Martin H. Belsky

I went to a law school [Columbia University] specifically because of their international program and became involved with almost all aspects of that program--which they called “transnational law.” I also did graduate work in International Affairs and Law. I was, and am, committed to incorporating transnational law concepts into the law school program. And I have had administrative responsibilities that have made me take a pragmatic approach to reaching that goal.

During this workshop, we have heard many ideas about bringing transnational law and issues into the first year curriculum. We have heard descriptions of the actions of individual faculty …

A Practical And Pragmatic Approach To Freedom Of Conscience, Martin H. Belsky

Martin H. Belsky

Using a series of anecdotes and illustrations, the author posits that freedom of conscience, broadly defined, can only be protected, if at all, by assertive individual and group action. Such action must be not just against government interference but also against non-governmental or private activities as well as intimidation. Professor Belsky urges individual balancing of the freedom of conscience and other legal, governmental and societal interests. This balancing is a form of “constitutionalism,” and when necessary must be followed up by enforcement through personal action.

Law Schools As Legal Education Centers, Martin H. Belsky

Martin H. Belsky

Legal education in the early twentieth century was divided into three concurrent paths-study at one of the "elite" law schools, consisting of mostly full-time students already possessing a college degree; study at one of the other mostly part-time practice based schools; and a course of study with a practitioner/mentor outside of formal educational institutions. ... Graduation was a serious event, as students were already thinking about passing the bar exam. ... Some of the reasons that law schools can deliver legal education to elementary and secondary students, obviously apply to junior college, college, and non-law school graduate and professional education …

Random Vs. Suspicion-Based Drug Testing In The Public Schools -- A Surprising Civil Liberties Dilemma, Martin H. Belsky

Martin H. Belsky

The Tecumseh School District had a policy that all students who wished to participate in extracurricular activities that involved some sort of competition had to agree to drug testing before the competition and then randomly thereafter. ... Those selected for accusatory drug testing might be perceived to be wearing a "badge of shame" and be subject to the arbitrary whim of an administrator. ... Vernonia involved a rule requiring drug testing as a condition for participation in extracurricular competitive sports. ... In Earls, the Tecumseh School District adopted a "Student Activities Drug Testing Policy" that required all students who wished …

Indian Fishing Rights: A Lost Opportunity For Ecosystem Management, Martin H. Belsky

Martin H. Belsky

Today, the depletion of salmon and steelhead fisheries in the Northwest United States is a concern not only to commercial fishers whose livelihoods depend on the resource but also to conservationists who fear the endangerment or extinction of the species. The implementation of a comprehensive approach to fisheries management could have reduced this threat of depletion. The federal courts had the opportunity to promote regulation and conservation of the fisheries in two cases, Sohappy v. Smith and United States v. Washington (Boldt), but failed to adopt an effective management model that would address the environmental concerns of the fisheries as …

The Public Trust Doctrine: The Public Trust Doctrine And Takings: A Post-Lucas View, Martin H. Belsky

Martin H. Belsky

During the last five years, the United States Supreme Court has evolved a new "takings" doctrine. Starting with Nollan v. California Coastal Commission and then most recently in Lucas v. South Carolina Coastal Council, the Court has sent a clear message to land-use regulators. General regulatory control over land-use will now be carefully scrutinized. If a type of land-use is barred or substantially restricted, it will be found to be a "taking" requiring compensation, unless such controls can be justified as based on historic common law principles of property law. This Article will review the evolution of this new doctrine …

Living With Miranda: A Reply To Professor Grano, Martin H. Belsky

Martin H. Belsky

Ten years ago, I wrote a review-Whither Miranda -of Liva Baker's book, Miranda: Crime, Law & Politics. In that article, I suggested that Miranda v. Arizona actually has had little impact on the day-to-day operations of the police or other investigative agencies. Interviews, questioning, and interrogations are conducted almost exactly as they had been before Miranda, except for the addition of warning cards in formal settings.

In addition, I argued Miranda's value as a legal precedent has been minimal. “Today, in almost all the cases involving admissions, the essential issue is voluntariness, the same issue stressed before Miranda. The only …

Environmental Policy Law In The 1980'S: Shifting Back The Burden Of Proof, Martin H. Belsky

Martin H. Belsky

This article will describe the legal and policy burdens of proof applicable to environmental decision-making and the shifts that have occurred in allocating those burdens. The initial change occurred when common-law principles gave way to a pro-protection legal framework established during an "environmental era." The second change occurred more recently when a new environmental policy law agenda was set. Through regulatory reforms, policy alterations, statutory proposals and budgetary and personnel actions, the federal executive is now seeking to develop a more pro-development structure and again place the burden of proof on those seeking to secure government action to protect the …

Review Essay On Becoming And Being A Prosecutor, Martin H. Belsky

Martin H. Belsky

A prosecutor is a detective, a litigator, a manager, and a policymaker. He is responsible for investigating illegalities' and is permitted to use specially assigned tools-a grand jury or subpoena-to acquire information and evidence. As a litigator, he is counsel for an artificial client-the government or people-but also the representa- tive of identifiable victims. Moreover, though he functions in an adversary system, he must temper his advocacy and zeal. His goal is not merely to "win," but also to see that "justice is done."

The prosecutor must manage an increasing set of responsibilities in a complex and often arbitrary system, …

Three Prosecutors Look At The New Pennsylvania Crimes Code, Martin H. Belsky, Joseph Dougherty, Steven H. Goldblatt

Martin H. Belsky

On December 6, 1972, a new Crimes Code, was approved, to be effective June 6, 1973. The new Crimes Code is the first real legislative attempt since 1860 to codify the criminal laws of the Commonwealth of Pennsylvania. However, because of political realities, it is not a complete codification, but rather an attempt to restructure only those provisions found in the former Penal Code.

In the comments of the Joint State Government Commission, the drafters of the new Crimes Code sought to convince the legislature and the public that few substantive changes had been made., In fact, by the elimination …

Reapportionment In The 1970'S - A Pennsylvania Illustration, Martin H. Belsky

Martin H. Belsky

In Commonwealth ex rel. Specter v. Levin, the Pennsylvania Supreme Court dismissed, in a four-to-three order and later opinion, challenges to a reapportionment plan for the Pennsylvania State Senate and House of Representatives prepared by the Pennsylvania State Legislative Reapportionment Commission. An appeal from that order and opinion was dismissed "for want of a substantial federal question" by the United States Supreme Court on October 10, 1972. A complaint under the Civil Rights Act challenging the reapportionment plan was later dismissed by a three-judge court on May 8, 1973. Thus ended this author's journey through the "political thicket" of reapportionment …

Diplomatic Immunity-Jurisdiction-Adequacy Of Service By Mail On Foreign Government Agency: Petrol Shipping Corp. V. Kingdom Of Greece, Ministry Of Commerce, Purchase Directorate (2d Cir. 1966), Martin Belsky

Martin H. Belsky

Casenote: Petrol Shipping Corp. v. Kingdom of Greece, Ministry of Commerce, Purchase Directorate, 360 F.2d 103 (2d Cir. 1966).