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Articles 31 - 49 of 49
Full-Text Articles in Law
Ub Viewpoint – Dissolving The Shadows, Eric Easton
Ub Viewpoint – Dissolving The Shadows, Eric Easton
All Faculty Scholarship
No abstract provided.
The War On Terrorism And The Constitution, Michael I. Meyerson
The War On Terrorism And The Constitution, Michael I. Meyerson
All Faculty Scholarship
Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is …
Accountability Solutions In The Consent Search And Seizure Wasteland, José F. Anderson
Accountability Solutions In The Consent Search And Seizure Wasteland, José F. Anderson
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The legal and social issues that have emerged out of the doctrine that people in America have a right against unreasonable government instituted searches and seizures have dominated the dialogue and controversy in the American criminal justice system over the last three decades. A large portion of the debate has centered around the controversial exclusionary rule, which frees the sometimes unmistakably guilty because of irregularities in police procedure.
The notion that society suffers when criminals go free because of the constable's blunder has struck a decidedly political note in the discussion over criminal justice reform. Many observers are quick to …
When The Wall Has Fallen: Decades Of Failure In The Supervision Of Capital Juries, José F. Anderson
When The Wall Has Fallen: Decades Of Failure In The Supervision Of Capital Juries, José F. Anderson
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Since the return of capital punishment after Furman v. Georgia nearly three decades ago, the Supreme Court of the United States has struggled to control the administration of capital punishment when those decisions are made or recommended by a citizen jury. Although there is no constitutional requirement that a jury participate in the death penalty process, most states do provide, through their capital punishment statutes, that a jury will participate in the decision. The preference for jury sentencing in these circumstances reflects a reluctance to leave power over life solely in the hands of one judge. Still, some scholars have …
The Reconceptualization Of Legislative History In The Supreme Court, Charles Tiefer
The Reconceptualization Of Legislative History In The Supreme Court, Charles Tiefer
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In 1995, the Supreme Court began to embrace a approach to interpreting Congressional intent. From that year forward, the Breyers-Stevens model of legislative history, or "institutional legislative history," has seen significant success, emerging in the shadows of the success Justice Scalia's enjoyed while promoting his brand of textualism in the early 1990s. In developing a new way to view Congressional intent, Justices Breyers and Stevens synthesize information gathered from congressional report details, preferably attached to bill drafting choices, thereby renouncing Scalia's reliance on the purposes espoused by the Congressional majority. This new approach, the author contends, rejuvenated the court's approach …
Passage Of Religious Freedom Act Necessary To Fulfill Maryland's National Leadership Role, Kenneth Lasson
Passage Of Religious Freedom Act Necessary To Fulfill Maryland's National Leadership Role, Kenneth Lasson
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Three hundred sixty-four years ago this month, two tiny sailing ships arrived near what is now St. Mary's City with the first settlers in Maryland. The Ark and the Dove were sent to the New World by Cecil Calvert. Lord Baltimore had founded his small colony as a haven for those persecuted in England because of their religious beliefs.
On numerous occasions since then - from passage of the Act of Toleration in 1649 to the achievement of full civil liberties for Jews in 1825 to landmark Supreme Court decisions involving the state in the 1960s - Maryland has been …
Will The Punishment Fit The Victims? The Case For Pre-Trial Disclosure, And The Uncharted Future Of Victim Impact Information In Capital Jury Sentencing, José F. Anderson
Will The Punishment Fit The Victims? The Case For Pre-Trial Disclosure, And The Uncharted Future Of Victim Impact Information In Capital Jury Sentencing, José F. Anderson
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The United States Supreme Court decision in Payne v. Tennessee, upholding the use of victim impact statements in capital jury sentencing proceedings, marked one of the most dramatic reversals of a precedent in the history of United States constitutional jurisprudence. The decision in Payne expressly overruled Booth v. Maryland decided only four years earlier. The Booth case rejected the use of victim impact statements in capital sentencing cases that involved juries. In Payne, the Supreme Court made it clear that victims were entitled to offer, and juries were permitted to consider, the effect that a "death eligible" homicide had on …
Thurgood Marshall: Legal Strategist For The Civil Rights Movement, F. Michael Higginbotham, José F. Anderson
Thurgood Marshall: Legal Strategist For The Civil Rights Movement, F. Michael Higginbotham, José F. Anderson
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This brief article covers the career of attorney and U.S. Supreme Court Justice Thurgood Marshall, covering his early days as an attorney working for the NAACP, up to his career on the nation's highest court. Of particular interest are the hardships of his early days as a lawyer, as one of only 32 African American lawyers in Maryland in 1935. The key cases during his career are touched upon, along with the legal strategies used to further the cause of civil rights.
Perspectives On Missouri V. Jenkins: Abandoning The Unfinished Business Of Public School Desegregation 'With All Deliberate Speed', José F. Anderson
Perspectives On Missouri V. Jenkins: Abandoning The Unfinished Business Of Public School Desegregation 'With All Deliberate Speed', José F. Anderson
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This essay examines the continuing struggle that centers around whether this country will allow public elementary and secondary school officials to use race-conscious, and sometimes aggressive, tools to eliminate the continuing presence of predominantly single race schools in most of our urban centers. Despite the promise of Brown v. Board of Education, the efforts to desegregate schools in some areas of America appear to have eliminated only the legal barriers to truly integrated schools. Many school systems have simply resegregated through demographic shifts prompted by urban decay and "white flight." In Missouri v. Jenkins, the Supreme Court struck down certain …
Consistently Inconsistent: The Supreme Court And The Confusion Surrounding Proportionality In Non-Capital Sentencing, Steven P. Grossman
Consistently Inconsistent: The Supreme Court And The Confusion Surrounding Proportionality In Non-Capital Sentencing, Steven P. Grossman
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(Adapted by permission from 84 Ky. L. J. 107 (1995)) This article examines the Supreme Court's treatment of the Eighth Amendment with respect to claims of excessiveness regarding prison sentences. Specifically, it addresses the issue of whether and to what degree the Eighth Amendment requires that a punishment not be disproportional to the crime punished. In analyzing all of the modern holdings of the Court in this area, one finds significant fault with each. The result of this series of flawed opinions from the Supreme Court is that the state of the law with respect to proportionality in sentencing is …
Social Justice And The Myth Of Fairness: A Communal Defense Of Affirmative Action, Phillip J. Closius
Social Justice And The Myth Of Fairness: A Communal Defense Of Affirmative Action, Phillip J. Closius
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This Article shall examine the characteristics of the current analytical framework by first examining some harmful effects resulting from the prioritization of fairness: excessive generalization, formalism and superficiality, and materialism. The Article will then examine in detail the Supreme Court's resolution of modern affirmative action issues. The Court has generated confusion and discord by applying simplistic concepts to complex problems and by adhering to the primacy of fairness in a context in which all interested parties claim that fairness favors their result. Finally, this Article will critique the Court's inability to provide a consistent doctrinal basis for discussing affirmative action …
Proportionality In Non-Capital Sentencing: The Supreme Court's Tortured Approach To Cruel And Unusual Punishment, Steven P. Grossman
Proportionality In Non-Capital Sentencing: The Supreme Court's Tortured Approach To Cruel And Unusual Punishment, Steven P. Grossman
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This Article examines the Supreme Court's treatment of the Eighth Amendment with respect to claims of excessive prison sentences. Specifically, it addresses the issue of whether and to what degree the Eighth Amendment requires that a punishment not be disproportionate to the crime. In analyzing all of the modern holdings of the Court in this area, this Article finds significant fault with each. The result of this series of flawed opinions from the Supreme Court is that the state of the law with respect to proportionality in sentencing is confused, and what law can be discerned rests on weak foundations. …
Religious Liberty In The Military: The First Amendment Under "Friendly Fire", Kenneth Lasson
Religious Liberty In The Military: The First Amendment Under "Friendly Fire", Kenneth Lasson
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This article examines specific restrictions promulgated and practiced during the Persian Gulf War, provides a brief historical analysis of how the United States and other nations have traditionally accommodated the religious activities of their military personnel, and addresses the question of how far we can constitutionally limit the free-exercise rights of the people in the military in light of current Supreme Court jurisprudence.
Justice Brennan's Gender Jurisprudence, Rebecca Korzec
Justice Brennan's Gender Jurisprudence, Rebecca Korzec
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During his thirty-four year tenure on the Supreme Court, Justice William Joseph Brennan, Jr. demonstrated unparalleled sensitivity to the protection of individual rights. Justice Brennan's landmark opinions included Baker v. Carr, Goldberg v. Kelly, and New York Times Co. v. Sullivan. before Brennan, Supreme Court jurisprudence exalted judicial passivity by employing techniques for avoiding constitutional issues, such as abstention, comity, exhaustion of remedies and the political question doctrine.
Against this background, Brennan became an active judicial voice in a series of innovative landmark cases, including decisions requiring federal officials to pay damages for violation of citizens' constitutional rights; authorizing federal …
The Doctrine Of Inevitable Discovery: A Plea For Reasonable Limitations, Steven P. Grossman
The Doctrine Of Inevitable Discovery: A Plea For Reasonable Limitations, Steven P. Grossman
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In reinstating the Iowa murder conviction of Robert Williams, the Supreme Court accepted explicitly for the first time the doctrine of inevitable discovery. Applied for some time by state and federal courts, the doctrine of inevitable discovery is a means by which evidence obtained illegally can still be admitted against defendants in criminal cases. Unfortunately, the Court chose to adopt the doctrine without any of the safeguards necessary to insure that the deterrent impact of the exclusionary rule would be preserved, and in a form that is subject to and almost invites abuse.
This article warns of the danger to …
The Right To Speak, The Right To Hear, And The Right Not To Hear: The Technological Resolution To The Cable/Pornography Debate, Michael I. Meyerson
The Right To Speak, The Right To Hear, And The Right Not To Hear: The Technological Resolution To The Cable/Pornography Debate, Michael I. Meyerson
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The advent of cable television presented a new opportunity to consider the competing interests on each side of the free speech/pornography debate. This Article attempts to construct an analysis that will be consistent with Supreme Court teaching on how government, under the first amendment, may constitutionally regulate legal obscenity, particularly in the name of protecting those who wish to avoid exposure to such material.
The Article shows how, unlike earlier battles over technology and pornography, cable television presented the novel opportunity to have a technological rather than a censorial solution to this difficult problem.
Whatever Happened To The "Right To Know?": The Right Of Access To Government-Controlled Information Since Richmond Newspapers On Those Who Don't, Michael Hayes
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No abstract provided.
Below Market Loans: From Abuse To Misuses – A Sports Illustration, Phillip J. Closius, Douglas K. Chapman
Below Market Loans: From Abuse To Misuses – A Sports Illustration, Phillip J. Closius, Douglas K. Chapman
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Below market loans have been traditionally used as substitutes for gifts, salaries, and dividends for the primary purpose of tax avoidance in the transfer of wealth. The Supreme Court's opinion in Dickman v. Commissioner subjected both demand and term loans in an intrafamilial setting to the federal gift tax. Congress, while subjecting all below market loans to either income or gift tax, applied different valuation formulas to term and demand loans and, in so doing, favored the use of demand loans as a salary substitute. This Article analyzes the current status of below market loans by examining their use in …
Professional Sports And Antitrust Law: The Groundrules Of Immunity, Exemption And Liability, Phillip J. Closius
Professional Sports And Antitrust Law: The Groundrules Of Immunity, Exemption And Liability, Phillip J. Closius
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As professional sports leagues increased their wealth and national prominence, the federal judicial system became uncomfortable with its characterization of sports as something other than a business. The Supreme Court reflected this change in policy in the 1950s by refusing to extend baseball's antitrust exemption to other sports. The application of the Sherman Act to all nonbaseball sports established the foundation for the forceful imposition of antitrust constraints on team owners in the sports litigation of the 1970s. These "revolutionary" decisions substantially eliminated the status of sports as a game or amusement insulated from the legal obligations of profit-making industries. …