Law Commons^™

Miller V. Arkansas: Criminals Beware! Arkansas Uses An Objective Approach In Evaluating Pretextual Traffic Stops, Jason Watson

Mercer Law Review

In Miller v. Arkansas, the Arkansas Court of Appeals had to decide whether an officer's subjective intent would make an otherwise legitimate traffic stop and ensuing search pretextual. In December 1991, a confidential informant told Arkansas state police officer Roger Ahlf that Roger Miller was a cocaine dealer and was driving a black van on a suspended driver's license. After verifying this information, Officer Ahlf stopped Miller for driving on a suspended license. Ahlf then frisked Miller for weapons. During the frisk, the officer found an address book that contained less than 1.5 grams of marijuana residue. The officer …

Pre-Litigation Contractual Waivers Of The Right To A Jury Trial Are Unenforceable Under Georgia Law, E. Michelle Robinson

Mercer Law Review

In a recent decision, Bank South v. Howard, the Georgia Supreme Court held pre-litigation contractual waivers of the right to a jury trial are unenforceable in Georgia! This decision is particularly interesting in light of two factors: (1) of the jurisdictions considering this issue, Georgia is the only one to hold such waivers unenforceable; and (2) contractual arbitration agreements, which essentially waive the right to a jury trial, are enforceable in Georgia. In Bank South v. Howard, Bank South filed suit against Howard to recover over two million dollars under 1985 and 1988 guaranties. Howard raised several defenses …

The Employer's/Insurance Carrier's Right To Subrogation Under The Georgia Workers' Compensation Act (O.C.G.A. Section 34-9- 11.1): How Long Will It Last?, Gregory T. Talley

Mercer Law Review

Workers' Compensation laws require an employer to pay workers' compensation benefits to any covered employee injured within the scope of employment regardless of fault. This obligation is unaffected by the fact that the injury requiring the employer to pay benefits is often caused by the negligence of a third party unrelated to the employment relationship. For this reason, most Workers' Compensation Acts provide the innocent employer or insurance carrier a right of subrogation against the recovery from any responsible third party tortfeasor to the extent of benefits paid to the injured employee. This type of reimbursement scheme prevents double recovery …

Proposed Guidelines For Student Religious Speech And Observance In Public Schools, Jay Alan Sekulow, James Henderson, John Tuskey

Mercer Law Review

The First Amendment to the United States Constitution provides, "Congress shall make no law respecting an establishment of religion .... " The First Amendment also provides, "Congress shall make no law ... abridging the freedom of speech, or of the press.. ." Perhaps no question has so bedeviled American courts in this century as that of how to reconcile these two provisions in this nation's public schools. Questions that arise include: Does allowing students to pray, share their faith with other students, or even discuss their religion at the public schools constitute an "establishment of religion?" May public schools go …

Graduation Prayer After Lee V. Weisman: A Cautionary Tale, Stephen B. Pershing

Mercer Law Review

Loudoun County, Virginia, is a lush expanse of fields and rolling hills at the edge of the burgeoning Washington metropolis. Its growing population is heavily white, affluent, and Christian. In 1993, a year after the Supreme Court's decision in Lee v. Weisman, the county not surprisingly became an arena for the resurgence of a familiar prayer in America's public schools.

This Article tells the story of the Loudoun County graduation prayer litigation, and tries to set the case in context. It ponders doctrinal questions from an unabashedly separationist perspective, but it offers words of caution for both sides in the …

The Threat To The American Idea Of Religious Liberty, Robert S. Peck

Mercer Law Review

With the Supreme Court unlikely to overturn its public school prayer decisions, those who seek a greater religious presence in education have launched two complementary strategies intended to expand existing guarantees of school-related worship rights.

The first strategy is a renewed effort to pass a school prayer constitutional amendment utilizing the political muscle that conservative religious interests demonstrated in the 1994 elections and which resulted in the first Republican controlled Congress in forty years. The amendment movement dangerously attempts to authorize the use of government offices for purposes of religious indoctrination. Though previous efforts at authorizing public school prayer through …

The Ironic State Of Religious Liberty In America, Frederick Mark Gedicks

Mercer Law Review

The constitutionality of organized graduation or classroom prayer in public schools is an issue of continuing controversy in the United States. There are, of course, numerous policy arguments for and against allowing prayer in public schools, but I will be focusing on the constitutional issues and consequently will have rather less to say about policy. (I will disclose, however, that as a matter of policy, I think there are problems with public schools' organizing and sponsoring group prayer as part of graduation ceremonies or classroom activities; it would seem that Mr. Peck, Mr. Sekulow, and I all agree on that, …

The First Amendment: Has The Supreme Court Overlooked Its Role As Guardian Of Our Freedom By Failing To Distinguish Between Real Threat And Mere Shadow?, Jimmy Daniels

Mercer Law Review

"Congress shall make no law respecting an establishment of religion "

This single phrase, referred to as the Establishment Clause, has created much confusion among legal scholars throughout the latter part of the Twentieth Century and particularly the past two decades. This confusion, in my opinion, can be attributed to historical ignorance, misapplication, or both.

Board Of Education Of Kiryas Joel Village School District V. Grumet: A Missed Opportunity For The Supreme Court To Clarify Establishment Clause Analysis, John Kevin Moore

Mercer Law Review

The village of Kiryas Joel in Orange County, New York is populated entirely by practitioners of Satmar Hasidim, a strict form of Judaism. The Satmar Hasidics, incorporated the village in 1977, and the boundaries included only the 320 acres owned and inhabited by Satmar Hasidics. Two private, gender-segregated religious schools provided the education for most of the village's children. However, these schools were not able to offer special services to handicapped children who are entitled under state and federal law to special education services even when enrolled in private schools. Thus, in 1984 the Monroe-Woodbury Central School District began providing …

First Amendment Facelift?: Rehnquist Court Crafts New Scrutiny Level For Content- Neutral, Speech Restricting Injunctions In Madsen V. Women's Health Center, Richard A. Griggs

Mercer Law Review

Recently, in Madsen v. Women's Health Center, the United States Supreme Court evaluated the constitutionality of an injunction that had completely prohibited antiabortion protestors from coming within a thirty-six foot "speech-free" buffer zone around an abortion clinic. Petitioners, Judy Madsen, Ed Martin, and Shirley Hobbs, are officers of Rescue America and members of Operation Rescue. The predominant goal of these two antiabortion, activist organizations is to shut down abortion clinics throughout the country. Respondents, Women's Health Center, Inc., Aware Woman Center for Choice, Inc., EPOC Clinic, Inc., and Central Florida Women's Health Organization, Inc., operate abortion clinics throughout central …

Introduction To Mercer Law Review Symposium On Federal Judicial Independence, L. Ralph Mecham

Mercer Law Review

No abstract provided.

Independence Of The Judiciary For The Third Century, Deanell Reece Tacha

Mercer Law Review

For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers... the complete independence of the courts of justice is peculiarly essential in a limited constitution."
The Federalist No. 78, at 402 (Alexander Hamilton)

Alexander Hamilton's impassioned advocacy of an independent judiciary rings as true now as it did when Hamilton was attempting to convince the people of the State of New York to ratify the new Constitution. For over 200 years, the independent federal judiciary has been a powerful tool in guarding the Constitution and the rights of …

Congress And The Courts: Establishing A Constructive Dialogue, Orrin G. Hatch

Mercer Law Review

The topic of federal judicial independence is an amorphous one, and Professor Redish's fine contribution to this symposium provides meaningful shape and structure to this topic. I will leave it largely to the academics to debate the many theoretical questions raised by Professor Redish. At the outset, I would simply like to offer a few observations on the four categories into which Professor Redish subdivides the concept of federal judicial independence.

I agree with Professor Redish that what he labels "institutional" independence, "decisional" independence, and "counter-majoritarian" independence identify those basic respects in which the Constitution guarantees the federal courts protections …

"Separateness But Interdependence, Autonomy But Reciprocity": A First Look At Federal Judges' Appearances Before Legislative Committees, Harvey Rishikof, Barbara A. Perry

Mercer Law Review

The Founding Fathers established judicial independence as a central tenet of the Constitution of the United States in order to insulate federal judges from the President, the Congress, and the electorate. Yet because of the complicated nature of the Constitution and overlapping powers, the judiciary has not remained totally isolated from the legislative process. Our research has discovered hundreds of instances of federal jurists testifying before congressional committees on subjects such as court administration, federal jurisdiction, budgetary policy, and pending legislation in a variety of fields. Indeed, our findings buttress a key argument of Justice Robert H. Jackson's concurring opinion …

Federal Judicial Independence: Constitutional And Political Perspectives, Martin H. Redish

Mercer Law Review

Since the nation's beginning, the concept of federal judicial independence has been almost as confusing to political and constitutional theorists as it is fundamental to the successful operation of our form of constitutional democracy. On the one hand, the Constitution's framers consciously chose to insulate members of the federal judiciary from at least the most acute forms of potential political pressure by expressly providing for the protection of their salary and tenure. On the other hand, the framers simultaneously provided the groundwork to facilitate the exercise of seemingly substantial congressional control of the jurisdiction of the federal courts, thereby potentially …

Judicial Power And The Rules Enabling Act, Linda S. Mullenix

Mercer Law Review

Congress undermines and erodes judicial power when it imperially declares and exercises an exclusive right to enact federal procedural rules. Thus, congressional intrusion into federal procedural rulemaking is the most significant contemporary issue of judicial independence. The proper province of procedural rulemaking is no mere pointillist academic quibble, but rather an issue that runs to the core of judicial power. A judiciary that cannot create its own procedural rules is not an independent judiciary Moreover, a judiciary that constitutionally and statutorily is entitled to create its own procedural rules, but must perform that function under a constant cloud of congressional …

The Fragmentation Of Federal Rules, Erwin Chemerinsky, Barry Friedman

Mercer Law Review

In 1938, the Federal Rules of Civil Procedure were adopted. Their adoption represented a triumph of uniformity over localism. The lengthy debate that prefaced the adoption of the rules focused upon the value of a national set of rules, as opposed to the then-governing practice of "conformity," in which local federal practice mirrored that of the state in which the federal courts sat. Although many different arguments were offered in favor of the federal rules, at bottom the rules' proponents carried the day by arguing that procedure ought to be the same across the federal courts and the cases those …

The Independence Of Judges, James Zagel, Adam Winkler

Mercer Law Review

One might begin by asking why we are having this symposium. "Judicial independence" arises infrequently in litigation, so there are few snarling doctrinal knots to loosen and even fewer precedents to ponder. The truth is that our legislative and executive branches of government rarely attempt to interfere with the decisions of the federal judiciary. Of the few cases that have been decided, most seem surprisingly minor in their importance and insight.' It seems to us immensely difficult to make many judgments about judicial independence in the abstract that are likely to win widespread agreement, and in this area abstraction abounds. …

Federal Judges And The Judicial Branch: Their Independence And Accountability, Gordon Bermant, Russell R. Wheeler

Mercer Law Review

This issue of the Mercer Law Review was stimulated in part by a concern expressed by some federal judges that federal judicial independence is at risk. For example, the Committee on the Judicial Branch of the United States Judicial Conference expressed its hope that the symposium and other efforts will "address the concerns of judges about the protections afforded to them individually and to the Judiciary as an institution."' The Committee emphasized that those concerns "extend beyond the salary and tenure guarantees of the Constitution."' To many judges they also involve legislative and executive intervention into the operation of the …

Judicial Independence: Can It Be Without Article Iii?, Richard B. Hoffman, Frank P. Cihlar

Mercer Law Review

1. ANALYSIS OF JUDICIAL INDEPENDENCE OF ALJS AND ARTICLE I COURTS VERSUS ARTICLE III JUDICIARY
2. THE EXPERIENCE AND EVOLUTION OF THE TAX COURT
3. SHAKING UP SOCIAL SECURITY
4. COURT OR CORPS?

United Mine Workers V. Bagwell: The Civil/Criminal Indirect Contempt Fine Distinction Revisited, Franklin P. Brannen Jr.

Mercer Law Review

United Mine Workers v. Bagwell involves the imposition of indirect contempt fines stemming from a labor dispute in Virginia. In April 1989, respondents Clinchfield Coal and Sea "B" Mining Companies filed suit to enjoin petitioner International Union, United Mine Workers of America from conducting unlawful strike activities. The trial court entered an injunction that prohibited the union and its members from undertaking illegal strike-related activities. In subsequent hearings, the court imposed over $64,000,000 in fines. The trial court required that the companies prove violations of the injunction beyond a reasonable doubt but did not afford the union the right to …

Historical Perspective Of The "Sex Psychopath" Statute: From The Revolutionary Era To The Present Federal Crime Bill, Rachel Blacher

Mercer Law Review

No abstract provided.

Interstate Child Support Enforcement System: Juggernaut Of Bureaucracy, Janelle T. Calhoun

Mercer Law Review

This Comment examines the crisis of child support in America. Throughout, statistics and facts are provided to demonstrate the gravity of the problem, the ensuing drain on national resources, and why corrective steps must be taken. First, the Comment explains the causes and scope of the problem, focusing on the crux of the dilemma: single mothers with inadequate incomes raising children while receiving no support from absent fathers. Next, it explores the history of the child support obligation, tracing legislative attempts to coerce payment. The Comment then explains the currently available remedies, how they are applied, and why they are …

The United States Military Vs. The Media: Constitutional Friction, Steven S. Neff

Mercer Law Review

The long history of the relationship between the military and the media has been somewhat enigmatic. The fact that each institution has a strong constitutional mandate for its operations necessarily implicates the judiciary as a player in the inevitable conflict between the armed forces and the press. Ironically, these three entities-the military, media, and judiciary-frequently meet on the same First Amendment battlefield. The purpose of this Comment is to discuss this relationship historically and currently, assert the possible roles of each institution generally and with respect to one another, and attempt to predict the ebb and flow of the future …