Law Commons^™

A Legal Note On The Nixon Pardon: Equal Justice Vis-À-Vis Due Process, Luis Kutner

Akron Law Review

THE FIRST TWO MAJOR ACTS of the Ford Presidency-the offer of earned amnesty (at least insofar as draft resisters in the Vietnam conflict are concerned) and the pardon granted to former President Richard M. Nixonwere charitable, wise and just. This article, of course, will discuss the presidential pardon for Mr. Nixon.

Mandatory Referendum For Zoning Amendments; Unlawful Delegation Of Legislative Power; Denial Of Due Process; Forest City Enterprises, Inc. V. Eastlake, Jane E. Bond

Akron Law Review

IN 1971 FOREST CITY ENTERPRISES applied to the Planning Commission of Eastlake, Ohio, to rezone its property, an eight-acre parcel of land, from industrial to multi-family high-rise use. After the application was filed, initiative petitions were circulated proposing the adoption of an amendment to the Eastlake city charter. The proposed amendment provided for mandatory voter approval' of any ordinance changing the city's existing comprehensive zoning plan. An amendment to this effect was adopted in November, 1971.

Abortion; Parental Consent; Minors' Rights To Due Process, Equal Protection And Privacy; State V. Koome, Barbara Child

Akron Law Review

The Washington court had before it a physician appealing his conviction for performing an abortion on an unmarried 16-year-old woman, a ward of the King County Juvenile Court, which had given its consent to the abortion. However, the young woman's parents and the Catholic Children's Services, her temporary guardian, both opposed the abortion and were granted a stay of the abortion order pending review by the state supreme court. During the stay, Dr. Koome performed the abortion. The supreme court held that the Washington consent statute "too broadly encumbers the right of unmarried minor women to choose to terminate pregnancy, …

Admissibility Of In-Court Identifications; Unnecessarily Suggestive Out-Of-Court Identifications; Due Process; Manson V. Brathwaite, Frank A. Barbieri Jr.

Akron Law Review

Prior to the Supreme Court's decision in Manson v. Brathwaite, a substantial amount of confusion existed concerning the judicial test which was to be applied to in-court and out-of-court criminal identification procedures. The Court, in the case of Stovall v. Denno, had first set forth a two stage test for determining whether such procedures were violative of due process. While later cases were somewhat unclear, the Stovall test continued to be used. When the Court again confronted the identification procedure question in the case of Neil v. Biggers, a new "totality of the circumstances" test was set forth. …

Affirmative Defenses; Defendant's Burden Of Proof: Defense Of Extreme Emotional Disturbance; Due Process; Patteron V. New York, Lee Ann Johnson

Akron Law Review

The United States Supreme Court in Patterson v. New York upheld the constitutionality of a New York murder statute which places on the defendant the burden of proving extreme emotional disturbance. The Court thereby determined that New York courts in applying the statute against defendant Gordon Patterson had not violated his right to due process of law

Corporal Punishment In Schools; Due Process; Cruel And Unusual Punishment; Ingraham V. Wright, Mary W. Altier

Akron Law Review

Corporal punishment as a means of disciplining school children has been used in this country since colonial days. There have been various constitutional attacks on the practice of inflicting corporal punishment, with varying results, and the issue was finally brought before the Supreme Court in Ingraham v. Wright. The Court decided on April 19, 1977 that the Cruel and Unusual Punishment Clause of the eighth amendment does not apply to disciplinary corporal punishment in public schools and that the Due Process Clause of the fourteenth amendment does not require notice and hearing prior to imposition of corporal punishment, as …

In Rem Jurisdiction; Due Process; Minimum Contacts; State Statutes; Shaffer V. Heitner, Richard S. Milligan

Akron Law Review

The decision of Shaffer v. Heitner marks a significant departure from established principles concerning in rem jurisdiction. No longer may a court take jurisdiction of a lawsuit merely by sequestering any property of the defendant that happens to be located in that state.

Searching Inquiry Requirement In Civil Commitment Proceedings Of Sex Offenders, Arsalan Ali Memon

Touro Law Review

No abstract provided.

Fools Rush In Where Lawyers Would Better Tread: The Right To Self-Representation And Related Standards Of Competency, Julia M. Capie

Touro Law Review

No abstract provided.

The Original Understanding Of The Fourteenth Amendment In Illinois, Ohio, And Pennsylvania, James E. Bond

Akron Law Review

This article reviews the state ratification debates in Pennsylvania, Ohio, and Illinois. Then as now these states were major electoral battlegrounds. In all three states the two parties fielded strong candidates and ran well-organized campaigns. Many of the nationally recognized proponents of the 14th amendment hailed from these states. Those among them who faced re-election were marked men. President Johnson himself made his famous "swing around the circle," defending "My Policy" in major cities in all three states. The President was only the most prominent of the many well-known outsiders who criss-crossed these states in a desperate attempt to influence …

Civil Servant Employee Disciplinary Proceedings: A Comparative Analysis And Recommendations For A Uniform Statute, Carlos J. Cuevas, Leonard M. Baynes

Akron Law Review

The purpose of this article is to analyze the disciplinary proceedings for non-probationary civil servants on the state and federal level. The article will focus on the procedures adopted by the states of California, Illinois, and New York, and the Federal statutes and regulations. Furthermore, recommendations will be offered to establish a model statute regulating the procedural aspects of employee disciplinary proceedings.

The Constitutional Right Of The Indigent Facing Involuntary Civil Commitment To An Independent Psychiatric Examination, Scott F. Uhler

Akron Law Review

The recently established constitutional right to an independent psychiatric examination for a criminal defendant, when the defendant's sanity is at issue,' has not been extended to the involuntary civil commitment process However, for the following reasons, the right should be so extended.

First, the interpretation of due process in the involuntary commitment procedure, as construed by lower federal courts and state courts to require an exam, shows greater uniformity and logical cohesiveness than that defined by applicable Supreme Court decisions. Second, the area of juvenile adjudication presents great similarity of purpose to civil commitment, yet the due process protections deemed …

Mill's Theory Of Liberty In Constitutional Interpretation, Wilson Ray Huhn

Akron Law Review

I wish to apply Justice Thompson's discussion of the nature of liberty in a more general context in addressing fundamental questions of constitutional interpretation. Justice Thompson's essential inquiry is, "Should the enforcement of morals be the concern of the law?" I take the liberty of slightly rephrasing that question: "Is the enforcement of traditional moral norms per se constitutional?" I suggest that the answer to this question is "no." Courts and scholars have often confused our moral traditions with our traditions of liberty and equality. My central premise is that it is for the legislature to enact morality into law, …

Mu'min V. Virginia: Sixth And Fourteenth Amendments Do Not Compel Content Questions In Assessing Juror Impartiality, Cheryl A. Waddle

Akron Law Review

This note synopsizes the Supreme Court's prior decisions regarding the adequacy of voir dire in capital cases surrounded by prejudicial pretrial publicity. This note will then discuss Mu'Min and explore the weaknesses in the Court's analogies to its prior decisions. Next, the note will propose arguments in favor of mandating content questioning. Finally, this note will explore possible nonconstitutional reasons for requiring content questioning in cases where juror partiality should be presumed.

Riggins V. Nevada Fails To Resolve The Conflict Over Forcibly Medicating The Incompetent Criminal Defendant, Richard L. Ferrell Iii

Akron Law Review

The purpose of this casenote is to assess the propriety of the Riggins Court's decision and highlight some problems with the Court's reasoning. This note begins by discussing antipsychotic drugs and their side effects. Next, this note explores the ways in which courts have responded to the state's power to compel such medication, followed by an explanation of the types of objections raised to prevent this intrusion. Then, this casenote analyzes the Court's discussion of Riggins' eighth amendment claim, his liberty interest in avoiding forced medication, and the trial prejudice which anti-psychotic drugs can cause. Finally, this note analyzes the …

Bias Crime Legislation: A Constitutional Rebuttal To Sticks And Stones . . ., Diana M. Torres

Akron Law Review

In a recent article, Susan Gellman of the Ohio bar provides perhaps the clearest and most persuasive arguments against these statutes both on constitutional and policy grounds. 5 This paper is, in many respects, a response to her arguments. It will first briefly discuss the need for bias crime legislation. It will then address the various forms of such statutes and respond to the constitutional objections of vagueness, overbreadth and infringement on free speech as set forth in Gellman's article. The paper will analogize the statutes to civil rights and anti-discrimination legislation and the principles behind sentencing discretion. Finally, the …

Ohio's Administrative License Suspension: A Double Jeopardy And Due Process Analysis, Max Kravitz

Akron Law Review

This Article examines whether Ohio's imposition of an administrative license suspension "ALS" immediately upon arrest for operating a motor vehicle under the influence of alcohol "OMVI" bars a subsequent prosecution for the substantive offense.' Traditionally, administrative license suspensions have been considered civil, administrative and primarily remedial. However, increasingly punitive amendments to Ohio's ALS statutory scheme raise the substantial question of whether an ALS is truly remedial, or whether the imposition of an ALS constitutes punishment triggering double jeopardy and due process protection.

Off Duty, Off The Wall, But Not Off The Hook: Section 1983 Liability For The Private Misconduct Of Public Officials, Douglas S. Miller

Akron Law Review

The language quoted in the previous paragraph, employing as it does the metaphor of causation, represents one model for determining when a person has acted under color of law. Other models have also been used. In Part II of this Article, I note briefly the inconsistency of outcome that has marked this area, and identify the various models used, relying in part on the efforts of other commentators to describe the models that might be available from a theoretical standpoint. In the course of identifying these models, I note that many, if not all, lack authority either in the history …

Exactions For The Future, Timothy M. Mulvaney

Timothy M. Mulvaney

New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. …

Exactions For The Future, Timothy M. Mulvaney

Timothy M. Mulvaney

New development commonly contributes to projected infrastructural demands caused by multiple parties or amplifies the impacts of anticipated natural hazards. At times, these impacts only can be addressed through coordinated actions over a lengthy period. In theory, the ability of local governments to attach conditions, or “exactions,” to discretionary land use permits can serve as one tool to accomplish this end. Unlike traditional exactions that regularly respond to demonstrably measurable, immediate development harms, these “exactions for the future” — exactions responsive to cumulative anticipated future harms — admittedly can present land assembly concerns and involve inherently uncertain long-range government forecasting. …

Teaching Free Speech From An Incomplete Fossil Record, Michael Kent Curtis

Akron Law Review

The second part of this symposium has been devoted to how we teach the Constitution. It has emphasized what gets left out. The reader will see a pattern. Paul Finkelman is a leading scholar on the law of slavery and the Constitution. Paul thinks – and I believe he is correct – that the immense influence of slavery on American constitutional law is too often neglected in our constitutional law courses. James Wilson has studied how political philosophers – Aristotle, Rousseau, James Harrington, and others – have understood the distribution of wealth as a central factor affecting how the constitution …

Bray V. Russell: The Constitutionality Of The "Bad Time" Statute, Erin Kae Cardinal

Akron Law Review

This Note analyzes the Court’s decision in Bray. Part II presents an overview of sentencing systems in the United States, the bad time penalty, and a brief background of the doctrine of separation of powers. Part III presents the facts, procedural history, and holding of Bray. Part IV analyzes the Court’s holding pursuant to the Due Process Clause rather than the doctrine of separation of powers. This Note concludes that although the bad time statute is unconstitutional as a violation of the doctrine of separation of powers, the court could have alternatively decided that the bad time statute also violates …

The Constitutional Politics Of Interpreting Section 5 Of The Fourteenth Amendment, Christopher P. Banks

Akron Law Review

This essay analyzes the Rehnquist Court’s Section 5 cases by first, in Section I, establishing how the Supreme Court has historically assumed the task of interpreting Congress’ power to act under the Fourteenth Amendment. Two periods, Reconstruction and then the mid- 1960s, are examined because they present contrasting views about the scope of what the Fourteenth Amendment and its enforcement section means. Section II then surveys Section 5 cases from the Rehnquist Court in order to illustrate how its jurisprudence mirrors the antifederalist rhetoric established in the post-reconstruction era while, not surprisingly, departing from the principles set forth in the …

Barefoot In Quicksand: The Future Of "Future Dangerousness" Predictions In Death Penalty Sentencing In The World Of Daubert And Kumho, Thomas Regnier

Akron Law Review

To understand the Barefoot decision, it is necessary to examine Jurek v. Texas, an earlier case in which the Supreme Court upheld the constitutionality of using predictions of future dangerousness as an element in capital sentencing. I will begin by analyzing the background to Barefoot, and then the Barefoot case itself. I will consider how admissibility of future dangerousness testimony in capital cases may or may not have changed after the Supreme Court’s decisions in Daubert v. Merrell Dow Pharmaceuticals and Kumho Tire Co. v. Carmichael. I will argue that future dangerousness predictions in capital cases are an unconstitutional due …

John Bingham And The Background To The Fourteenth Amendment, Paul Finkelman

Akron Law Review

Legal scholars have long debated the “original intent” of the Fourteenth Amendment, especially Section one, which has been the driving engine of the national expansion of civil rights and civil liberties for the past half century or more. Lawyers comb the records of the Thirty-ninth Congress, certain they will find some Rosetta stone that will explain such terms as “privileges or immunities of citizens of the United States,” “due process of law” or “equal protection of the laws.”

While exploring the records of Congress can be useful, the debates in Congress do not tell the whole story of the origin …

The Continuing Importance Of Congressman John A. Bingham And The Fourteenth Amendment, Richard L. Aynes

Akron Law Review

In the now-famous 1830s chronicle of a visit to America, Alexis de Tocqueville wrote that in America every political issue is ultimately a legal issue in the courts. For Americans who lived through the antislavery and abolitionist era as well as the crisis of the war of 1861-1865, the military victory of the Union forces on the field of battle still left open large political issues. These issues were attempted to be resolved through the political process that produced a legal solution: a constitutional amendment that we currently identify as the Fourteenth Amendment. The meaning of the Amendment was ultimately …

Due Process Limitations On Punitive Damages: Why State Farm Won't Be The Last Word, Laura J. Hines

Akron Law Review

Part I of this article will trace the development of the evolving principles and requirements the Court is imposing on state awards of punitive damages, identifying notable undercurrents within the Court regarding this new and expanding application of the Due Process Clause. Part II will present a detailed analysis of State Farm Mutual Automobile Insurance Co. v. Campbell, which represents the Court’s most ambitious attempt yet to provide guidance to states on how to approach the imposition of punitive damages and how to assess the appropriate size thereof. Finally, Part III of this article will examine recent lower court cases …

Charles Demore V. Hyung Joon Kim: Antoher Step Away From Full Due Process Protections, Brian Smith

Akron Law Review

Part II of this note traces the development of substantive due process protections for aliens, including general due process jurisprudence, the statutory authority for detaining criminal aliens, significant Supreme Court decisions, and approaches taken by the circuit courts. Part III examines the Supreme Court’s decision in Hyung Joon Kim. Part IV evaluates the due process analysis used by the Court and addresses the implications of this decision. Part V of this note concludes that the Court’s strained departure from strict scrutiny and its failure to provide an adequate explanation of the departure will have implications for aliens, citizens, and future …

The Little Word "Due", Andrew T. Hyman

Akron Law Review

The Fifth and Fourteenth Amendments bar the government from depriving anyone of “life, liberty, or property, without due process of law.” The ambiguity of that phrase has kept the judiciary busy for many generations, but that same ambiguity has become “completely eclipsed by the little word ‘due.’” The goal of the present article is to study this critical word, and in particular to examine whether a process is automatically “due” if it is owed according to positive law, or alternatively whether a process can only be “due” if it accords with judicially ascertained principles of liberty and justice. The present …

The Admissibility Of Confessions Compelled By Foreign Coercion: A Compelling Question Of Values In An Era Of Increasing International Criminal Cooperation, Geoffrey S. Corn, Kevin Cieply

Pepperdine Law Review

This Article proceeds on a simple and clear premise: a confession extracted by torture or cruel, inhuman, or degrading treatment should never be admitted into evidence in a U.S. criminal trial. Whether accomplished through extending the Due Process or Self-Incrimination based exclusionary rules to foreign official coercion, or by legislative action, such exclusion is necessary to align evidentiary practice regarding confessions procured by foreign agents with our nation's fundamental values as reflected in the Fifth Amendment and our ratification of the CAT. This outcome is not incompatible with Connelly. Rather, this Article explores the limits of the Court's language in …