Law Commons^™

Book Review, Elaine W. Shoben

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The Burden of Brown by Raymond Wolters is a long book with a very short message: integration is bad, but desegregation is not. The distinction between the two is crucial to Wolters's analysis. Desegregation is the prohibition of officially sanctioned separation of the races. Integration, on the other hand, is the compelled mixing of the races for the sake of mixing. The "burden" of Brown v. Board of Education, according to Wolters, is that the Supreme Court has blurred this distinction and erroneously requires integration instead of merely prohibiting segregation. Wolters's thesis is that Brown had two prongs: one …

The Wrong's Of Victim's Rights, Lynne Henderson

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No abstract provided.

Government–Owned Media: The Government As Speaker And Censor, Linda L. Berger

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When government operates a communications medium, it may either promote first amendment values, by ensuring a diverse marketplace of ideas, or hinder them, by censoring the information and ideas it conveys. This Note proposes a synthesis of government speech and government forum analyses which would provide first amendment limitations on government-operated media while still allowing government to exercise editorial discretion.

The New Federalism In Criminal Procedure In 1984: Death Of The Phoenix?, Donald E. Wilkes Jr.

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A decade has passed since my first article on the topic of new federalism in criminal procedure entitled, The New Federalism in Criminal Procedure: State Court Evasion of the Burger Court. This chapter takes a fresh look at the new federalism in criminal procedure in light of developments occurring since 1974.

Trial Practice And Procedure (Annual Survey Of Georgia Law), C. Ronald Ellington, T. Bart Gary

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This Article highlights significant developments in trial practice and procedure during the survey period. These developments include legislative changes that extend the privilege of renewal to actions first commenced in federal court and that shorten slightly the period in which a plaintiff can voluntarily dismiss an action by notice. An important judicial contribution occurred when the supreme court adopted the Uniform Superior Court Rules and similar rules for each of the other classes of trial courts. These uniform rules apply statewide and supersede and limit local rules of court. The new uniform rules deserve careful reading in their entirety, but …

The Great Writ: No Longer As Dear To The Tories As To The Whigs -- A Critique Of Senator Nunn's Habeas Corpus Article, Donald E. Wilkes Jr.

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The days of praise for the Great Writ from all political quarters are over. Today the legal literature includes a growing body of articles lashing out at the modern federal habeas corpus remedy for state prisoners authorized by 28 U.S.C. § 2254 and advocating statutory changes to make it more difficult to obtain Section 2254 relief. In the vanguard of these articles are those by conservative political figures or law enforcement officials. In 1984 this criticism of the Section 2254 remedy in scholarly journals arguably reached its zenith, in terms of degree of harshness, when the attorney general of Alabama …

Book Review : Beyond Psychiatric Expertise. By Ben Bursten, Bruce Morton

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No abstract provided.

An Analytical Framework For International Criminal Law: Realism And Interest Alignment, Daniel H. Derby

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No abstract provided.

Note, Developments Under The Freedom Of Information Act—1984, Mary Lafrance

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The eighteenth year of the Freedom of Information Act (FOIA) witnessed a continuation of the trend toward restricting public access to government information. This article discusses the developments under the FOIA in 1984, including legislative developments, administrative developments, and judicial developments.

To Grandmother’S House We Go: Grandparent Visitation After Stepparent Adoption, Peter Zablotsky

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No abstract provided.

Protecting Research: Copyright, Common-Law Alternatives, And Federal Preemption, David E. Shipley, Jeffrey S. Hays

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Under federal copyright law, an author's expression is protected but his ideas and discoveries are not. Professor Shipley explores the possibility of expanding copyright to protect the research of nonfiction authors, but concludes that such an expansion would undermine federal copyright policy. State-law remedies exist that will provide such protection if they are not preempted by federal law. Professor Shipley concludes that most contract claims and some misappropriation claims will survive preemption and therefore are a means by which nonfiction authors can protect their research.

The Future Of The Common Law Tradition, Alan Watson

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What, then, can one say about the common law tradition as it will develop in the relatively near future? In terms of the future development of the common law systems, three facts seem certain and decisive. In the first place, there has been, as a matter of observable fact, a great shift in the balance of lawmaking in the common law world from judicial precedent to legislation, which together comprise the two main sources of law. In the second place, there is a deep awareness in the common law countries of a crisis in lawmaking, an awareness that is probably …

Political Perspectives On State And Local Taxation Of Natural Resources, Walter Hellerstein

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This article investigates the questions that have dominated the political debate over state and local taxation of natural resources in the federal system. It seeks to identify areas of consensus, clarify points of disagreement, and examine proposals that could provide a basis for reconciling the competing concerns. Part I briefly considers the issues as they arise within the framework of the individual state. Part II addresses interstate and interregional conflict. Part III turns to the dialogue over the role, if any, that the federal government should play in mediating the disputes.

Balancing Government Efficienty And The Protection Of Individual Liberties: An Analysis Of The Conflit Between Executive Branch "Housekeeping" Regulations And Criminal Defendants' Rights To A Constitutionally Fair Trial, James F. Ponsoldt

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This Article addresses the issue of whether an accused person should be entitled to obtain and use at trial relevant government information or the testimony of government employees to prove his innocence, regardless of whether he has revealed in advance to his adversary his intended use of that information or the specific content of that testimony. Part I describes the federal "housekeeping" statute and the Justice Department's housekeeping regulations, which require that subpoenaed government employees not disclose evidence unless the person seeking that evidence has first summarized the requested evidence in advance, explained its intended use, and obtained permission from …

Obligation: Not To The Law But To The Neighbor, Milner S. Ball

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In this article I will first address the strongest yet still unsatisfactory argument for an obligation to obey the law, the argument that the government and its officers are obligated to obey the law. I will then consider the weaker, more satisfactory argument that citizens have an obligation to obey the law. I will conclude by taking up the issue that I find more interesting and important: the absence of a biblical basis for an obligation to obey the law.

First Things Last: Amendomania And State Bills Of Rights, Donald E. Wilkes Jr.

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State bills of rights preceded the federal Bill of Rights. From June 1776, when the Virginia Declaration of Rights (the first state bill of rights) was adopted, until December 1791, when the federal Bill of Rights was ratified, eight states each adopted a bill of rights as a separate part of their state constitution. State constitutional rights existed even before there as a United States Constitution. Furthermore, the federal Bill of Rights contains provisions derived from earlier state bills of rights. Indeed, virtually every guarantee in the federal Bill of Rights can be traced to a similar guarantee in one …

The Evolution Of Law: The Roman System Of Contracts, Alan Watson

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I have two aims in producing this paper. First, I wish to contribute to the general understanding of how and why law develops and explain the evolution of some very familiar legal institutions. Second, I wish to add to our knowledge of the history of Roman law, by producing a radically different view of the development of contracts, that is, I believe, both consistent with surviving textual data and plausible with regard to human behavior.

Ohio's Public Employee Bargaining Law: Can It Withstand Constitutional Challenge?, Rebecca White, Robert E. Kaplan, Michael W. Hawkins

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Public employees in Ohio are now statutorily entitled to bargain collectively with their government employers. This controversial right was obtained on July 6, 1983, when Ohio Governor Richard Celeste fulfilled a major campaign promise by signing into law Senate Bill 133. This bill, which took effect April 1, 1984, has been labeled "one of the most pro-labor public employee bargaining statutes in the nation.

As with any legislation that provides sweeping social and economic changes, challenges to the bill's legitimacy can be expected. Experience in other states teaches that constitutional attacks on the statute will be mounted swiftly, attacks that …

An Approach To Customary Law, Alan Watson

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A proper understanding of the nature of customary law is important for legal historians. For students of European legal history, customary law is particularly important; from post-Roman times to the beginning of the modern legal age in the eighteenth century, the two main elements in European law have been Roman law and legal custom. In large measure, the main task of lawyers of that interim time period was to unify or harmonize the two strands of Roman law and custom.

Customary law flourishes in circumstances where law is likely to be the least theoretical. Yet, the nature of any source …

Substantive Due Process And The Scope Of Constitutional Torts, Michael L. Wells, Thomas A. Eaton

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The thesis of this Article is that both the Supreme Court and its critics have failed to identify and confront the central issue presented by these due process constitutional tort cases. That issue is neither procedural fairness nor the choice between state and federal courts. It is deciding whether a government-inflicted injury to life, liberty, or property violates the substantive protections of the due process clauses and thereby warrants a constitutionally derived tort remedy. In Part II of this Article we examine the Supreme Court's decisions in this area, focusing primarily on Parratt v. Taylor. We demonstrate that neither Parratt …

Berger V. The Supreme Court—The Implications Of His Exceptions-Clause Odyssey, Thomas B. Mcaffee

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In his 1969 Congress v. The Supreme Court, Raoul Berger evaluated the potential claims to supremacy of Congress and the Supreme Court under the exceptions clause of article III and found in favor of the Supreme Court. Berger explicated a narrow construction of Congress’ express power to make exceptions to the Court’s appellate jurisdiction, holding that Congress’ claimed power to curb judicial excess was at odds with the design of the Constitution and without historical foundation. From 1969 to 1980, Berger reaffirmed his initial reading of the legislative history of article III no less than four times, once in …

A Conceptual Framework For Extradition And Jurisdiction Over Extraterritorial Crime, Christopher L. Blakesley

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International law is the language by which nations assert and attempt to resolve competing legal interests. As with any other language, if the definitions of essential concepts become muddled, it is difficult to communicate. The traditional bases of jurisdiction over extraterritorial crime are essential concepts in the language of international law. The decision to grant or deny extradition, for example, often depends on whether the interested nation recognizes the basis of jurisdiction asserted by another. Confusion over the traditional bases of jurisdiction therefore risks disagreement over and denial of extradition.

United States courts have recently expanded the traditional bases of …

Motions To Enforce Settlements: An Important Procedural Tool, Jeffrey W. Stempel

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No abstract provided.

When Guilt Should Be Irrelevant: Government Overreaching As A Bar To Reprosecution Under The Double Jeopardy Clause After Oregon V. Kennedy, James F. Ponsoldt

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This article examines the effect of Oregon v. Kennedy on the Burger Court's double jeopardy jurisprudence in cases where government misconduct has interfered with the integrity of a first trial. The article proposes the complete elimination of current distinctions between mistrial and appellate reversal cases for double jeopardy analysis, on the ground that those distinctions no longer have intellectual or practical support. Moreover, against the contention of the Court in Oregon v. Kennedy that any test for overreaching necessarily would be standardless, this article proposes the adoption of a "plain error" standard. Under this test, "plain" government error, engaged in …

The Subchapter S Revision Act: An Analysis And Appraisal, Amy Morris Hess

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No abstract provided.

A Due Process Of Judicially-Authorized Presumptions In Federal Aggravated Bank Robbery Cases, James F. Ponsoldt

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Within the past fifteen years several broadly-focused articles have identified general constitutional limits, under the due process clause, on presumptions and inferences created by statute or applied by courts in trying criminal cases. Recently, in County Court of Ulster County, New York v. Allen , the Supreme Court affirmed the validity of the evidentiary devices of inference and presumptions and labeled them "a staple of our adversary system of factfinding." This suggest that to unreasonably curtail the use of circumstantial evidence in the factfinding process would place an intolerable burden on prosecutors in their efforts to prove guilt beyond a …

Proof Of Disparate Treatment Under The Age Discrimination In Employment Act: Variations On A Title Vii Theme, Mack A. Player

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The Age Discrimination in Employment Act (ADEA) was enacted in 1967 and substantially amended in 1974 and 1978. Generally stated, the ADEA prohibits employer discrimination by public and private "employers" (persons having twenty or more employees), labor unions, and employment agencies. Protection against age discrimination is granted, however, only to employees and applicants between the ages of forty and seventy. It is illegal to discriminate on the basis of age against persons within the forty-to-seventy age group regardless of whether the person favored by the discrimination is within or without the protected age group or is younger or older than …

Freedom From Claims And Defenses: A Study In Judicial Activism Under The Uniform Commerical Code, Julian B. Mcdonnell

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The suggestion that we might today learn something about the judicial process in such a staid area of private law may seem surprising. After all, has not the Federal Trade Commission "repealed" the holder in due course rule thus tossing negotiable instruments into the dust bin? Have not the remaining technical questions been answered by the "detail and rigid precision" of the Uniform Commercial Code so lamented by Professor Gilmore? Surely, the attentive observer of the role of the courts might conclude that there is nothing left for the judicial policy maker in the field of bills and notes. The …

Ironies Of Intervention, Milner S. Ball

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I have detected in our deliberations this afternoon two ironies. The first is this: the dissentient receive more protection as enemies than as citizens. As we have heard today, there is greater opportunity for the assimilation of humanitarian law if the sides engaged in internal conflict are regarded as combatants and not as fellow citizens. With the application of the law of armed conflict comes the prospect that the opponents may observe some degree of mutual respect. Such dignity as the law accords thus becomes a function of formalized hostility rather than of civil affection, of open distrust rather than …

A Message Of Hope, Dean Rusk

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So I would hope, based upon the extraordinarily interesting discussion that we have had here during this Colloquium, that we try to follow it up a bit and not be too discouraged about the modesty of certain things that might be done, but see if we cannot find some way to encapsulate, surround, isolate these internal violence situations so that they do not contribute to those great struggles which could end us all.