Law Commons^™

Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren

St. Mary's Law Journal

During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …

Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel

St. Mary's Journal on Legal Malpractice & Ethics

The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However, the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …

Constitutional Shapeshifting: Giving The Fourth Amendment Substance In The Technology Driven World Of Criminal Investigation, Gerald S. Reamey

Faculty Articles

For the first hundred years of the Fourth Amendment's life, gains in the technology of surveillance were modest. With the advent of miniaturization and ever-increasing sophistication and capability of surveillance and detection devices, the Supreme Court has struggled to adapt its understanding of "search" to the constantly evolving devices and methods that challenge contemporary understanding of privacy. In response to surveillance innovations, the Court has taken varying positions, focusing first on property-based intrusions by government, then shifting to privacy expectations, and, more recently, resurrecting the view that a trespass to property can define search.

This article surveys this constitutional odyssey, …

Developing Environmental Law For All Citizens, Patricia W. Moore, Eliana S. Pereira, Gillian Duggin

Faculty Articles

On 20 May 2002, Timor-Leste became a country. Its Constitution, which came into force on 20 May 2002, is based on civil law, with many similarities to Portugal's legal system. The Constitution also laid the foundation for environmental law, which the government has been developing ever since. This overview of the development of environmental law in Timor-Leste describes the constitutional provisions that are the source of environmental law in the country; presents the policy basis for environmental law; reviews the legal instruments governing the environment that the government has adopted since 2002; introduces draft laws under consideration at the end …

Disqualifying Defense Counsel: The Curse Of The Sixth Amendment, Keith Swisher

St. Mary's Journal on Legal Malpractice & Ethics

Lawyer disqualification—the process of ejecting a conflicted lawyer, firm, or agency from a case—is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Gideon, which is celebrating its fiftieth anniversary, effectively added this ingredient to disqualification analysis involving indigent state defendants although it already existed in essence for both federal defendants and defendants with the wherewithal to retain counsel. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest—or other misconduct—render that counsel constitutionally ineffective. Most cases and commentary …

Universities As Constitutional Law Makers (And Other Hidden Actors In Our Constitutional Orders), Adam J. Macleod

Faculty Articles

In the stories told by opinion makers and many law professors, American constitutional law is concerned with two things-individual rights and the powers of government-and it is settled by the Court, which was established by Article III of our national Constitution. In those now-familiar tales, the United States Supreme Court creates constitutional law when heroic individuals assert their fundamental rights against an overreaching state and when Congress, state legislatures, and executive agencies are called upon to justify their expert enactments to an overreaching judiciary. To settle these constitutional disputes the Court looks either to the text of the written Constitution …

The Thirteenth Amendment Won't Help Free Willy., Sheri Flannery

The Scholar: St. Mary's Law Review on Race and Social Justice

Orcas are not afforded any relief under the Thirteenth Amendment. Animal rights advocates, namely People for the Ethical Treatment of Animals (PETA), alleged animals have the right to be free from slavery and involuntary servitude as guaranteed by the Thirteenth Amendment. Although the Thirteenth Amendment has been extended beyond African slavery, its protections have never been granted to anything other than human beings. The United States Supreme Court’s examination and interpretation of the Thirteenth Amendment concluded that animals are not afforded such protections under this amendment. The Court reasoned that the Thirteenth Amendment only applied to humans and not animals. …

Catholicism And Constitutional Law: More Than Privacy In The Penumbras, Bill Piatt

Faculty Articles

No abstract provided.

Procedural And Judicial Limitations On Voir Dire - Constitutional Implications And Preservation Of Error In Civil Cases., R. Brent Cooper, Diana L. Faust

St. Mary's Law Journal

The right to a trial by jury is meaningless without an effective voir dire. Recurring tort reform, rapid technological advancements, immediate access to media coverage of incidents that give rise to litigation have greatly expanded. Consequentially, courts are faced with the prospect that potential jurors’ opinions and attitudes have been tainted. In addition to these issues, trial courts display significant interest in promptly expediting the advancement of their dockets. Voir dire is an essential element of trial strategy. Voir dire allows counsel to establish rapport with potential jurors, introduce them to the issues and facts of the case, and identify …

Texas Law's Life Or Death Rule In Capital Sentencing: Scrutinizing Eight Amendment Violations And The Case Of Juan Guerrero, Jr., John Niland, Riddhi Dasgupta

St. Mary's Law Journal

The United States Supreme Court has never explained the Eighth Amendment’s impact in noncapital cases involving a mentally retarded or brain-injured defendant. The Court has not provided guidance to legislatures or lower courts concerning the acceptable balancing of aggravating and mitigating factors and the role that mitigating factors must play in the sentencing decision. A definitive gap exists between the protections afforded to a criminal defendant facing a life sentence as opposed to those confronted with the death penalty. The Court requires sentencing procedures to consider aggravating and mitigating factors, including mental retardation and brain damage, when imposing a death …

School Voucher Programs: Has The Supreme Court Pulled Up The Gangplank To Establishment Clause Challenges., Cecil C. Kuhne Iii

St. Mary's Law Journal

The Establishment Clause is not violated when a program is neutral toward religion and provides assistance directly to a broad class of citizens, who in turn voluntarily direct the aid to religious schools. A program containing these features permits government aid to reach religious institutions only thru the deliberate choices of individuals. Any incidental advancement or endorsement of religion is attributable to the individual recipient—not the government, which simply acts as a disburser. In Zelman v. Simmons-Harris, the Supreme Court reiterated this rationale from a twenty-year line of cases. Zelman is a death knell for Establishment Clause challenges to carefully …

Aboilishing The Texas Jury Shuffle., Michael M. Gallgher

St. Mary's Law Journal

This Article argues that the Texas Legislature should abolish the jury shuffle and join the other forty-nine states who have already done so. The jury shuffle, when requested, is a procedure which results in a random shuffling of the names of the jury pool members. Texas attorneys currently possess an entirely cost and risk free procedure through which they can discriminate against potential jurors on the basis of race, gender, ethnicity, or anything else that suits their fancy. An attorney can request a jury shuffle without stating a reason and a judge cannot ask why a shuffle was requested or …

Church-State Constitutional Issues: Making Sense Of The Establishment Clause And That Godless Court?: Supreme Court Decision On Church-State Relationships (Book Reviews), Michael Ariens

Faculty Articles

No abstract provided.

A True Crime: A Review Of Janet Malcolm, The Crime Of Sheila Mcgough (Book Review), Michael Ariens

Faculty Articles

No abstract provided.

Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making Essay., Donna F. Coltharp

St. Mary's Law Journal

From 1967, when Thurgood Marshall took his seat as Supreme Court Justice, until 1990, when William Brennan, Jr. vacated his seat, the two Justices formed one of the most consistent liberal voting blocs in the history of the Court. Both Justices were judicial activists who labored in the tradition of Legal Realism. Although both Brennan and Marshall recognized the interpretation and application of the law as purposeful exercises, they differed in their approach to the task. Marshall, for instance, appealed to social consensus stating that his views were supported by society. Furthermore, Marshall strongly believed that the Constitution is a …

The Size Of A Government Body Is Not Subject To A Vote Dilution Challenge Under Section 2 Of The Voting Rights Act Of 1965., Peter J. Beverage

St. Mary's Law Journal

In Holder v. Hall, the Court held the size of a government body is not subject to a vote dilution challenge under Section 2 of the Voting Rights Act of 1965. The Act consists of two primary components, Sections 2 and 5, designed to eliminate and prevent subtle voting practices and procedures utilized to obstruct minority voter participation. Section 5 requires states with a history of discriminatory voting practices to obtain federal preclearance before changing a voting standard, practice, or procedure. Section 2 addresses the existing methods utilized to deny or abridge a citizen’s right to vote.  In Holder, the …

Flow Control Ordinances That Require Disposal Of Trash At A Designated Facility Violate The Dormant Commerce Clause., Laura Gabrysch

St. Mary's Law Journal

In C & A Carbone, Inc. v. Town of Clarkstown, the Court held flow control ordinances that require disposal of trash at a designated facility violate the Dormant Commerce Clause. In the absence of congressional action, the Court has recognized—the Dormant Commerce Clause—restrictions on states’ ability to regulate interstate commerce. The Dormant Commerce Clause doctrine does not emanate directly from the Constitution, but instead flows from the body of Commerce Clause jurisprudence that has gained legitimacy throughout the years. In Carbone, the Court elevated the economic interests of one local waste processor over Clarkstown’s environmental and public protection. This type …

Derridoz Law Written In Our Heart/Land: “The Powers Retained By The People”, Emily A. Hartigan

Faculty Articles

Section 26 of the Nebraska Constitution, much like everything affirmative that humans do, is immediately flawed. The flaw sits literally right below this heartfelt declaration of the people’s sovereignty, in an annotation provided for section 26 in the Revised Statutes of Nebraska. This annotation cites State v. Moores, but recites also that the case was overruled, which is wrong for a number of reasons. First, not only does this conflict with other annotations to the same Bill of Rights citing the very same case, but it also ignores the inadequacy of the supposed “overruling” and the existence of an explicit …

Constitutional Law And The Myth Of The Great Judge, Michael S. Ariens

Faculty Articles

One of the enduring myths of American history, including constitutional history, is that of the “Great Man” or “Great Woman.” The idea is that, to understand the history of America, one needs to understand the impact made by Great Men and Women whose actions affected the course of history. In political history, one assays the development of the United States through the lives of great Americans, from the “Founders” to Abraham Lincoln to John F. Kennedy. Similarly, in constitutional history, the story is told through key figures, the “Great Judges,” from John Marshall to Oliver Wendell Holmes to Earl Warren. …

Enactments Altering Or Reallocating Elected Officials' Powers Do Not Directly Relate To Or Affect Voting And Are Therefore Not Subject To Judicial Or Administrative Preclearance Under Section 5 Of The Voting Rights Act Of 1965., Sharon N. Humble

St. Mary's Law Journal

In Presley v. Etowah County Comm’n, the Court held enactments altering or reallocating elected officials’ powers do not directly relate to or affect voting. Therefore, not subject to judicial or administrative preclearance under Section 5 of the Voting Rights Act of 1965. However, the Court’s holding in Presley, that the changes at issue must directly relate to voting, contradicts the Court’s earlier holdings that indirect or minor changes affecting voting must meet Section 5 preclearance requirements. In Presley, the Court limited the coverage of Section 5 by holding that enactments reallocating elected officials’ decision-making authority do not require judicial or …

Dutiful Justice (Book Review), Michael S. Ariens

Faculty Articles

Sheldon Novick’s biography, Honorable Justice: The Life of Oliver Wendell Holmes, is a traditional biography of one of the most important public figures in the United States since the Civil War.

Although the author disclaims it, Honorable Justice is a defense of Holmes. Novick writes of some of Holmes’ faults, but too often Holmes’ human imperfections are defended as strengths. It appears that Novick was trying hard to defend Holmes from late twentieth century critiques. This defense of Holmes seems a misguided attempt to re(de)ify Holmes to a group of readers which will likely include a large proportion of skeptical, …

Benign Classification Based On Race Must Be Narrowly Tailored To Achieve A Compelling Governmental Interest., Martha J. Hess

St. Mary's Law Journal

In City of Richmond v. J.A. Croson Co., the Supreme Court held a minority business utilization plan (Richmond Plan) was violative of the Fourteenth Amendment’s Equal Protection Clause. The Richmond Plan required all builders awarded city construction contracts to subcontract, at minimum, 30% of the contract value to Minority Business Enterprises. A state government enacting legislation that burdens one class of persons and benefits a similarly-situated class must provide sufficient justification for its action to survive equal protection analysis. When distinction is based on race or national origin—classes considered inherently suspect—a reviewing court subjects the governmental legislation to strict scrutiny, …

Allowing A Child Abuse Victim To Testify Via One-Way Closed-Circuit Television Does Not Violate A Criminal Defendant's Sixth Amendment Confrontation Clause Right If The Trial Court Specifically Finds Such A Procedure Necessary To Protect The Child's Welfare., Lisa R. Miller

St. Mary's Law Journal

In Maryland v. Craig, the Supreme Court held allowing child abuse victims to testify via one-way closed-circuit television does not violate a criminal defendant’s Sixth Amendment Confrontation Clause right if the trial court finds the procedure necessary to protect the child’s welfare. Although “confront” has generally been interpreted to mean “face-to-face,” on occasion, it may yield to public policy considerations and the compelling necessities of particular cases. The original purpose of the confrontation right was to prevent the accusers in a criminal proceeding from using ex parte affidavits or depositions against a defendant, in lieu of personal testimony. The Craig …

Attorney As Interpreter: A Return To Babble, Bill Piatt

Faculty Articles

Attorneys should not represent their clients and simultaneously act as interpreters. The harm far outweighs the benefit when an attorney acts as an interpreter for a client in litigation. In 1970, the Second Circuit Court of Appeals in Negron v. New York determined that the Sixth Amendment's confrontation clause requires that non-English speaking defendants be informed of their right to simultaneous interpretation of proceedings at the government's expense, however the use of an interpreter is still at the trial court's discretion.

Courts will ordinarily not appoint an interpreter in the absence of a request to do so, but the failure …

Suicidal Rights, Michael S. Ariens

Faculty Articles

The legal debate regarding the right to commit suicide requires a critical review of the relationship between the individual and the community in present liberal political thought. Modern liberal political thought postulates that the government or community must be neutral about what is good both for members of the community and the community itself. It also postulates that there exists a sphere of action which affects solely an individual.

The neutrality postulate and the harm of self/harm to others dichotomy are best explicated by John Stuart Mill in his essay On Liberty, in which Mill separates and categorizes the individual …

Law And Mystery: Calling The Letter To Life Through The Spirit Of The Law Of State Constitutions, Emily A. Hartigan

Faculty Articles

If law is anything today, it is dispirited. It lacks life, vitality, enchantment, and vision. Neither law nor its practitioners sing—or even hum. However, there is something more, already present in America’s state constitutions if practitioners dare turn to hear it. It is the voice of the spirit of the laws of the land. It sings of a vision.

There is a strain of constitutional law, anchored by actual judicial language about the spirit of law, which participates in the discourse identified in two key law review articles—Suzanna Sherry’s “The Founders’ Unwritten Constitution,” and Thomas Grey’s “Origins of the Unwritten …

Revocation Of Academic Degrees By Colleges And Universities, Bernard D. Reams Jr.

Faculty Articles

Recently, courts have decided that private and public colleges and universities can revoke degrees due to academic dishonesty. A university's authority to revoke degrees is supported by a logical extension of its conferral power, "black letter" contract law, and the precedential authority of Crook v. Baker, Waliga v. Board of Trustees of Kent State University, and Abalkhail v. Claremont University Center.

Although colleges enjoy great discretion in deciding whether to confer degrees, once the college grants a degree, its discretion to revoke that degree is governed by due process guidelines. In Crook, the university involved was public, triggering the applicability …

Federalism And Supreme Court Review Of Expansive State Court Decisions: A Response To Unfortunate Impressions, David A. Schlueter

Faculty Articles

This article addresses the Burger Supreme Court’s approach to federalism and concludes that the Court seems to be reordering federal-state judicial relations. This reordering appears to be occurring at the expense of both state autonomy and individual liberties, especially the rights of state criminal defendants.

Although there certainly have been cases which suggest the Burger Court has a lopsided federalism, upon thorough analysis of these cases, this determination is shown to be incorrect. In fact, the present Court greatly respects state autonomy and the independence of state courts. Further, the Supremacy Clause requires the Court to serve as final arbiter …