Law Commons^™

R.A.V. V. City Of St. Paul: The Right Decision, Flawed Reasoning, Tracy Lynne Hulsey

Mercer Law Review

In R.A.V. v. City of St. Paul, the United States Supreme Court struck a St. Paul, Minnesota ordinance prohibiting bias-motivated disorderly conduct, holding that the ordinance was facially invalid under the First Amendment to the United States Constitution. Police arrested Petitioner R.A.V., then a juvenile, and charged him with violating a city ordinance, which provided:

[w]hoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis …

The Changing Focus Of Government Regulation Of Agriculture In The United States, J.W. Looney

Mercer Law Review

Agriculture, broadly defined, is the country's largest industry. Fully one-fourth of the work force is involved in agricultural production, processing and manufacturing, and in the marketing and distribution of agricultural products. Agriculture's contribution to the Gross National Product is at least twenty percent of the total. Agriculture is a highly regulated industry. For example, it has been estimated that to bring an ordinary product such as the hamburger to the American consumer almost 300 statutory programs are involved. The cost of regulation for a pound of Thanksgiving turkey could be as high as fifteen cents.2 And, for highly processed products …

Article Ii Courts, David Bederman

Mercer Law Review

It is understandable that a reader may be puzzled by the title of this study. American lawyers are undoubtedly familiar with the notion of "constitutional" courts established under Article III of the Constitution.1 They also are likely to recall another class of federal tribunals, created by virtue of the legislative authority vested in Congress by Article I of the Constitution.' However, few lawyers and scholars are aware that there exists a third class of courts created by the Constitution. These are executive courts that, from time to time in the Republic's history, have been formed to administer justice, in times …

Souring On Lemon: The Supreme Court's Establishment Clause Doctrine In Transition, Roald Y. Mykkeltvedt

Mercer Law Review

In his opinion for the Court in the landmark case of Everson v. Board of Education, Justice Black held that the Establishment Clause of the First Amendment erected a high and impregnable "wall of separation" between church and state. Relying primarily on the writings of James Madison and Thomas Jefferson to discern the intentions of the framers, Justice Black maintained that, at the very least, the establishment proscription meant that

rn]either a state nor the Federal Government .. .can pass laws which aid one religion, aid all religions, or prefer one religion over another .... No tax in any …

Haitian Centers Council, Inc. V. Mcnary: If At First You Don't Succeed..., Robert A. Weber Jr.

Mercer Law Review

At what territorial point do aliens become entitled to the protections accorded them under the Immigration and Naturalization Act ("INA")? Contrary to the Eleventh Circuit Court of Appeals holding in Haitian Refugee Center, Inc. v. Baker, the Second Circuit Court of Appeals in Haitian Centers Council, Inc. v. McNary held that the protections accorded aliens in Section 243(h)(1) of the INA apply to all aliens, regardless of their location within or outside the territorial jurisdiction of the United States. The Eleventh Circuit in Baker had previously determined that Section 243(h)(1) applied only to aliens found within the jurisdictional confines …

Lackey V. Mcdowell: The Effect Of Releases On Non-Parties Under Georgia Law, Roland F. Hall

Mercer Law Review

In Lackey v. McDowell, the Supreme Court of Georgia modified *its previous decisions on the effect of a release on non-parties to the release. In reversing the court of appeals, the court held that "only those parties named in the release will be discharged by that instrument." Previous decisions required that parties to a release had to intend to discharge the non-party seeking coverage under the release.

For plaintiffs attempting to release only one of several tortfeasors, the effect of releases on non-parties is a critical issue, especially since standard release forms commonly contain language purporting to discharge all …

Slavery And Race: An Essay On New Ideas And Enduring Shibboleths In The Interpretation Of The American Constitutional System, Joseph E. Claxton

Mercer Law Review

The signers of the Declaration of Independence boldly announced that "[w]e hold these truths to be self-evident," but more than two centuries later the debate over the nature and meaning of "these truths" still is waged with vigor and, on many occasions, great passion. Indeed, the descriptive term "self-evident" is enough in itself to inspire fundamental disagreement. To Americans about to enter a twenty-first century era of ultra-technology, it sometimes must seem that unless an idea is as "self-evident" as the arithmetical concept that 1 + 1 = 2, it is not self-evident at all.

The "self-evident" truth that "all …

Planned Parenthood Of Southeastern Pennsylvania V. Casey: Adopting The Unduly Burdensome Standard, Sara L. Doyle

Mercer Law Review

In Planned Parenthood v. Casey, the Supreme Court reaffirmed the central holding in Roe v. Wade, firmly establishing that a woman has a fundamental liberty right to choose to have an abortion guaranteed to her under the Due Process Clause of the Fourteenth Amendment. Casey is a, plurality opinion coupled with a strong dissent.

This Casenote begins with a summary of the pertinent facts leading up to the initial action. Next, the Casenote examines the Court's holding in Casey and concludes with analysis of the Supreme Court opinion.

Edge V. State: The Modified Merger Rule Comes Up Short, Mark Kenneth Delegal

Mercer Law Review

In Edge v. State, the Supreme Court of Georgia held that a verdict convicting a defendant of voluntary manslaughter and felony murder based in the underlying felony of aggravated assault was improper. The court reasoned that because the jury found Edge guilty of voluntary manslaughter, malice did not exist and therefore, could not be transferred to support a felony murder conviction. Regrettably, the supreme court failed to adopt the merger rule. However, the court adopted a modified merger rule that precludes a conviction for felony murder when a conviction would prevent the jury from an otherwise proper finding of …

Luddington V. Indiana Bell Telephone: The 1991 Civil Rights Act Is No Help In Pending Cases, William Wright Banks Jr.

Mercer Law Review

In Luddington v. Indiana Bell Telephone, the Seventh Circuit held that the Civil Rights Act of 1991 ("the Act") does not apply to suits pending on the effective date of the Act. In so holding, the court faced conflicts between Supreme Court precedent on the issue of when statutes become effective.

The Supreme Court cases deciding whether statutes are to be applied retroactively have been said to be "'in irreconcilable contradiction.' " In Bradley v. School Board of City of Richmond, the Supreme Court stated that statutes are presumed to apply to cases pending when the statute becomes …

Introduction, Sidney D. Watson

Mercer Law Review

No abstract provided.

Utopian Dangers: Chemerinsky's "Right To Minimum Subsistence", Dennis D. Dorin

Mercer Law Review

Susan Bandes, a strong proponent of the theory that positive rights are encompassed by the Constitution, nevertheless dismisses arguments for a constitutionally mandated minimum subsistence as "utopian." A brief critique of Erwin Chemerinsky's "Making the Case for a Constitutional Right to Minimum Entitlements" may tell us why.

Professor Chemerinsky sets a somewhat modest goal for his article. He seeks to delineate what he believes to be the main steps in the development of a viable argument in support of a constitutional right to minimum entitlements.' He does this provocatively, summarizing and invoking, although not going far beyond, the relatively small …

Comment On: Making The Case For A Constitutional Right To Minimum Entitlements, Peter J. Ferrara

Mercer Law Review

Professor Chemerinsky advocates a sweeping, truly revolutionary change in constitutional law to provide for a constitutional right to minimum government assistance from welfare/entitlement programs. He is to be commended for his uncompromising boldness and unyielding faithfulness to his convictions. Unfortunately, his Article otherwise consists of bad law, bad economics, bad social policy, and erroneous factual assertions.

The Peremptory Challenge: A Lost Cause?, Robert T. Prior

Mercer Law Review

The recent Supreme Court decision of Georgia v. McCollum marked the culmination of a series of cases dealing with racially discriminatory peremptory challenges in jury selection. In holding that the equal protection clause of the Fourteenth Amendment requires a criminal defendant to articulate a racially neutral explanation for peremptory challenges before striking jury members of a different race, the Court has significantly undermined the role of the peremptory challenge in American jurisprudence. Beginning with Batson v. Kentucky six years ago, the Court has progressively ruled that under no circumstance will a party on either side of a criminal trial or …

Resources And Rights: Towards A New Prototype Of Criminal Representation, Laura Gardner Webster

Mercer Law Review

A comprehensive concern in recent criminal procedure decisions in the United States Supreme Court has been the apprehension that certain rights afforded to the accused detract from efficient law enforcement. Efficiency in controlling crime and obtaining accurate verdicts is preferred over the recognition of rights which impede that process. This model of the purposes of the criminal justice system has its origins in the judicial reluctance to apply the Fourth Amendment exclusionary rule as a means of excluding otherwise probative evidence simply because "the constable blundered."' The problems in Fourth Amendment jurisprudence are well known. As two commentators have observed, …

Sex, Violence, And Profanity: Rap Music And The First Amendment, Jon Christopher Wolfe

Mercer Law Review

Lauded by some and condemned by others, rap music does not want for a divergence of views on its nature, meaning, or message. The deluge of profanity coupled with vivid images and themes of sex and violence have provided fertile ground for discussion of rap's merits. Critics have characterized rap as "ugly macho boasting," "bombastic, self-aggrandizing," and "repulsive." Rap artist Ice Cube's Death Certificate album was the subject of a rare editorial comment by Billboard magazine deriding the lyrics as "the rankest sort of racism and hatemongering." Detractors fear that the violently negative messages promote a value system that celebrates …

Making The Case For A Constitutional Right To Minimum Entitlements, Erwin Chemerinsky

Mercer Law Review

When first asked to be on the Poverty Law Section's panel on a constitutional right to minimum entitlements, I was flattered but somewhat surprised at the choice of topic. Although the plight of the poor is obviously a serious and growing national disgrace, there is little likelihood that the United States Supreme Court will provide a solution. The current Court is extremely conservative and, with four conservative Justices under age fifty-five, likely will remain that way for decades to come. There is more chance that I will become the starting center for the Los Angeles Lakers (I am five foot …

The Poverty Of Academic Rhetoric, Frederick Mark Gedicks

Mercer Law Review

Erwin Chemerinsky puts forth the unlikely proposition that now is the time to develop a revitalized argument for a constitutional right to subsistence- level entitlements. While not detailing the actual content of such an argument, he outlines what he believes to be the necessary steps of the argument, leaving for another day the task of actually defining and defending those steps. In Chemerinsky's view, the argument would entail recognition that (i) [p]overty and the plight of the poor are serious social problems; (ii) the government has a responsibility to provide individuals with the essentials that are necessary for survival; (iii) …

Democracy In The Age Of Television, Theodore Y. Blumoff

Mercer Law Review

No abstract provided.