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Constitutional Law

1996

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Institution
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Articles 1 - 28 of 28

Full-Text Articles in Law

A Clash Of Fundamental Rights: Conflicts Between The Fifth And Sixth Amendments In Criminal Trials, Roderick R. Ingram Dec 1996

A Clash Of Fundamental Rights: Conflicts Between The Fifth And Sixth Amendments In Criminal Trials, Roderick R. Ingram

William & Mary Bill of Rights Journal

The United States Constitution's Fifth and Sixth Amendments protect the rights of criminal defendants and witnesses. The Fifth Amendment's privilege against self-incrimination protects witnesses from forced self-incrimination, and the Sixth Amendment provides criminal defendants with the right to cross-examine prosecution witnesses and to have compulsory process for obtaining witnesses. These fundamental rights conflict when a prosecution witness invokes the Fifth Amendment privilege on cross-examination or when a defense witness invokes the privilege on direct-examination. A grant of either use or transactional immunity would remove the potential for self-incrimination, but courts are split on whether they possess the authority to grant …


A Constitutional Bibliography, Thomas E. Baker Dec 1996

A Constitutional Bibliography, Thomas E. Baker

William & Mary Bill of Rights Journal

No abstract provided.


Native American Life Stories And "Authorship": Legal And Ethical Issues, Lenora P. Ledwon Oct 1996

Native American Life Stories And "Authorship": Legal And Ethical Issues, Lenora P. Ledwon

Faculty Articles

Juridical discourse concerning life stories has been primarily concerned with property and contract issues, and categories such as "ownership" and "authorship." Such legal discourse generally fails to acknowledge the unique nature of Native American life stories, particularly when such stories are written in collaboration with a non-Native editor or transcriber. This essay focuses on one fundamental question with overlapping legal and ethical aspects: how does a non-Native collaborator avoid a colonizing relationship to Native American texts? In suggesting possible answers to this vexing question, I always have on the horizon of my mind's eye two figures-Emmanuel Levinas, the philosopher, and …


Restoring Free Exercise Protections By Limiting Them: Preventing A Repeat Of Smith, James M. Donovan Sep 1996

Restoring Free Exercise Protections By Limiting Them: Preventing A Repeat Of Smith, James M. Donovan

Law Faculty Scholarly Articles

Employment Division, Department of Human Resources of Oregon v. Smith effectively removed all protections traditionally accorded the free exercise of religion. RFRA was designed to undo the effects of this decision by presumably setting back the clock of jurisprudence to the day before Smith. Even if RFRA is found to be constitutional, it will still, of itself, be ultimately ineffective since it undoes the effects of Smith without addressing the confluence of issues which made a decision like Smith likely. The clock may be set back, but without significant changes it can be expected to run forward again in much …


Restoring Free Exercise Protections By Limiting Them: Preventing A Repeat Of Smith, James M. Donovan Sep 1996

Restoring Free Exercise Protections By Limiting Them: Preventing A Repeat Of Smith, James M. Donovan

James M. Donovan

Employment Division, Department of Human Resources of Oregon v. Smith effectively removed all protections traditionally accorded the free exercise of religion. RFRA was designed to undo the effects of this decision by presumably setting back the clock of jurisprudence to the day before Smith. Even if RFRA is found to be constitutional, it will still, of itself, be ultimately ineffective since it undoes the effects of Smith without addressing the confluence of issues which made a decision like Smith likely. The clock may be set back, but without significant changes it can be expected to run forward again in much …


The Slavery Of Emancipation, Guyora Binder May 1996

The Slavery Of Emancipation, Guyora Binder

Journal Articles

The Thirteenth Amendment abolishes the institution of slavery rather than freeing individual slaves. Yet it quickly came to stand for little more than granting universal rights to make labor contracts and to leave service. This article develops a distinction between abolishing an institution and reclassifying individuals within it. Drawing on the comparative history of slavery, it shows that the institution of slavery has generally included mechanisms for the manumission of slaves and their passage into a liminal status combining self-ownership with social subordination and relative isolation. A critical account of the Antelope litigation shows that proponents of mass manumission still …


Invitation To John F. Sonnett Memorial Lecture Series: The Right To Life And Death, Liam Hamilton Mar 1996

Invitation To John F. Sonnett Memorial Lecture Series: The Right To Life And Death, Liam Hamilton

Miscellaneous

Invitation to "The Right to Life and Death" by Chief Justice Liam Hamilton of the Supreme Court of Ireland (1994-2000).


The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot Jan 1996

The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot

LLM Theses and Essays

Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These …


State And Federal Constitutional Law Developments, Rosalie Levinson Jan 1996

State And Federal Constitutional Law Developments, Rosalie Levinson

Law Faculty Publications

No abstract provided.


United States Supreme Court: 1995 & 1996 Term, Paul C. Giannelli Jan 1996

United States Supreme Court: 1995 & 1996 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.


Plenary Power And Constitutional Outcasts: Federal Power, Critical Race Theory, And The Second, Ninth, And Tenth Amendments , Nicholas J. Johnson Jan 1996

Plenary Power And Constitutional Outcasts: Federal Power, Critical Race Theory, And The Second, Ninth, And Tenth Amendments , Nicholas J. Johnson

Faculty Scholarship

Rights and power in modern American constitutionalism are conceptually interdependent: "We have no way of thinking about constitutional rights independent of what powers it would be prudent or desirable for government to have." In an era where substantive boundaries on federal power seem ephemeral, this suggests that what we call rights may be primarily fair weather or illusory barriers to the exercise of power.From a majoritarian perspective, the shifting boundary between rights and powers, and the capacity of power to consume rights, may be unproblematic and even attractive. If the exercise of plenary power reflects majority will, then this exercise …


Prayer In Public Schools: Without Heat, How Can There Be Light?, Or Narrative As The Reasonable Way To Discuss The Arational. Report On The Second Annual Law Day Symposium Jointly Sponsored By The Center For First Amendment Rights And The University Of Connecticut School Of Law, Malla Pollack Jan 1996

Prayer In Public Schools: Without Heat, How Can There Be Light?, Or Narrative As The Reasonable Way To Discuss The Arational. Report On The Second Annual Law Day Symposium Jointly Sponsored By The Center For First Amendment Rights And The University Of Connecticut School Of Law, Malla Pollack

Malla Pollack

Prayer in public schools cannot be discussed fully without recognizing the high emotions tied to religion -- and the danger of such emotions. Against a historical account of the adoption of the Establishment Clause, this article reports on a conference in which speakers presented disparate approachs to prayer in public schools: (i) the religious objection to allowing the state to undermine religion which is historically tied to Roger Williams; (ii) a narrow allegedly originalist argument in support of the practice; (iii) a suggestion to defuse religious-factionalism by teaching about religion as part of a multi-cultural curriculum; and (iv) a critique …


Preventing A Reign Of Terror: Civil Liberties Implications Of Terrorism Legislation, David B. Kopel, Joseph Olson Jan 1996

Preventing A Reign Of Terror: Civil Liberties Implications Of Terrorism Legislation, David B. Kopel, Joseph Olson

David B Kopel

Domestic terrorism is not a reason to abrogate constitutional rights, argues this 101-page paper, which discusses the 1996 omnibus federal terrorism bill, and other terror proposals. Topics include: scope of the terrorism problem; Britain's mistaken response to terror; use of the military in law enforcement; the Internet; militias; wiretapping; the FBI; and federalizing local crime.


The Fourth Revolution, Robert C. Power Jan 1996

The Fourth Revolution, Robert C. Power

Robert C Power

No abstract provided.


The Term Limits Case, Bennett L. Gershman Jan 1996

The Term Limits Case, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In U.S. Term Limits, the Court reviewed an amendment to the Arkansas Constitution, adopted in 1992, that made a candidate for the U.S. Senate or House of Representatives ineligible to have his or her name placed on the ballot for national election if that person had previously been elected to three or more terms as a member of the House, or two or more terms as a member of the Senate. Following a taxpayer's complaint seeking declaratory relief, the state circuit court held that this amendment violated the Qualifications Clauses in Article I, sections 2 and 3, of the U.S. …


Suspended Over The Abyss: A City's Quest For Local Autonomy In Institutional Reform Litigation, Michelle S. Simon Jan 1996

Suspended Over The Abyss: A City's Quest For Local Autonomy In Institutional Reform Litigation, Michelle S. Simon

Elisabeth Haub School of Law Faculty Publications

This Article examines the conflict between preserving local autonomy and remedying constitutional violations in the context of school desegregation. Part I articulates the problem by exploring the role of the city and its part in institutional reform. The first section explains what is meant by local autonomy. The second section examines what constitutes institutional reform. The third section discusses an example of the clash between local autonomy and institutional reform in the context of the ongoing struggle in Kansas City, Missouri. Part II examines how the Supreme Court has viewed the relationship between the remedial powers of district courts and …


Defensively Invoking Treaties In American Courts--Jurisdictional Challenges Under The U.N. Drug Trafficking Convention By Foreign Defendants Kidnapped Abroad By U.S. Agents, Thomas Michael Mcdonnell Jan 1996

Defensively Invoking Treaties In American Courts--Jurisdictional Challenges Under The U.N. Drug Trafficking Convention By Foreign Defendants Kidnapped Abroad By U.S. Agents, Thomas Michael Mcdonnell

Elisabeth Haub School of Law Faculty Publications

This Article unravels the non-self-executing treaty doctrine, examines the invocation of a treaty as a defense to governmental action, and develops a test for when an individual (rather than a government) may assert a treaty defensively in state or federal courts. Lastly, this Article applies this test to state-sponsored kidnapping and the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The parties to this treaty, which was sponsored by the United States, barred one country's law enforcement agents from operating without permission on another country's soil and rejected a provision requiring a country to extradite its own …


The Promise Of State Constitutionalism: Can It Be Fulfilled In Shef V. O'Neill?, Gayl S. Westerman Jan 1996

The Promise Of State Constitutionalism: Can It Be Fulfilled In Shef V. O'Neill?, Gayl S. Westerman

Elisabeth Haub School of Law Faculty Publications

This Article reflects on the anomaly of the superior court's decision in Sheff in light of this recent history and recommends that the Connecticut Supreme Court use an alternative, analytical framework based on the Connecticut Constitution to decide the Sheff appeal. This independent approach is equally available to all state courts seeking to resolve fundamental issues under their own constitutions. Only by speaking in a clear, state voice can state courts balance the constitutional vision of the federal courts and fulfill the promise of the state constitutional law movement.


Developments In Constitutional Law: The 1994-95 Term, Hester Lessard, Bruce Ryder, David Schneiderman, Margot Young Jan 1996

Developments In Constitutional Law: The 1994-95 Term, Hester Lessard, Bruce Ryder, David Schneiderman, Margot Young

All Faculty Publications

This essay explores the apparent triumph of the individual of classical liberalism in Supreme Court decision making. Our analysis examines the particular way in which this political imagery of the individual interacts with judicial assumptions about important social institutions: the family, religion, media, and the state. What is revealed is the judicial adoption of an intricate social and political map in which abstract individualism combines with, and often masks, traditional, conservative images of social order and moral choice.


Toward A Pragmatic Model Of Judicial Decisionmaking: Why Tort Law Provides A Better Framework Than Constitutional Law For Deciding The Issue Of Medical Futility, Brent D. Lloyd Jan 1996

Toward A Pragmatic Model Of Judicial Decisionmaking: Why Tort Law Provides A Better Framework Than Constitutional Law For Deciding The Issue Of Medical Futility, Brent D. Lloyd

Seattle University Law Review

Recognizing that courts will eventually have to confront the issue of medical futility, this Comment argues that there is no principled basis for omitting these difficult questions from a legal analysis of the issue and that courts should therefore decide the issue in a manner that honestly confronts them. Specifically, the argument advanced here is that courts confronted with cases of medical futility should decide the issue under principles of tort law, rather than under principles of constitutional law. The crux of this argument is that tort principles provide an open-ended analytical framework conducive to considering troublesome questions like those …


1996-97 Supreme Court Preview: Mock Arguments In Clinton V. Jones, Michael J. Gerhardt, Rodney A. Smolla Jan 1996

1996-97 Supreme Court Preview: Mock Arguments In Clinton V. Jones, Michael J. Gerhardt, Rodney A. Smolla

Faculty Publications

No abstract provided.


Constitutional Law - United States V. Goldberg: The Third Circuit's Nontraditional Approach To Waiver Of The Sixth Amendment Right To Counsel, Jennifer Elizabeth Parker Jan 1996

Constitutional Law - United States V. Goldberg: The Third Circuit's Nontraditional Approach To Waiver Of The Sixth Amendment Right To Counsel, Jennifer Elizabeth Parker

Villanova Law Review

No abstract provided.


Scrambling For Protection: The New Media And The First Amendment (Paperback Ed.), Patrick Garry Dec 1995

Scrambling For Protection: The New Media And The First Amendment (Paperback Ed.), Patrick Garry

Patrick M. Garry

In Scrambling for Protection, Patrick Garry asserts that such dramatic developments in electronic communications will radically change the way society communicates. Already, computer networks and bulletin boards are creating, in essence, electronic editorial pages on which people can register their viewpoints. Indeed, the new and increasingly interactive media promise to more significantly involve the public in the process of social communication. This concept of change lies at the heart of Scrambling for Protection. Garry offers models and guidelines for constitutionally redefining the press and asserts that, as both the press and the First Amendment move away from an apparently exclusive …


Book Note (Reviewing John Arthur, Words That Bind: Judicial Review And The Grounds Of Modern Constitutional Theory (1995), Robert Lipkin Dec 1995

Book Note (Reviewing John Arthur, Words That Bind: Judicial Review And The Grounds Of Modern Constitutional Theory (1995), Robert Lipkin

Robert Justin Lipkin

No abstract provided.


Cruelty And Original Intent: A Socratic Dialogue, Kent Greenfield Dec 1995

Cruelty And Original Intent: A Socratic Dialogue, Kent Greenfield

Kent Greenfield

Reprinted in Boston College Law School Magazine 5 (Fall 1996): 27- 31


Book Review (Reviewing Michael J. Perry, The Constitution In The Courts: Law Or Politics? (1994), Robert Lipkin Dec 1995

Book Review (Reviewing Michael J. Perry, The Constitution In The Courts: Law Or Politics? (1994), Robert Lipkin

Robert Justin Lipkin

No abstract provided.


Constitutional Architecture: The First Amendment And The Single Family House, John F. Nivala Dec 1995

Constitutional Architecture: The First Amendment And The Single Family House, John F. Nivala

John F. Nivala

No abstract provided.


H. Jefferson Powell On The American Constitutional Tradition: A Conversation, Randy Lee Dec 1995

H. Jefferson Powell On The American Constitutional Tradition: A Conversation, Randy Lee

Randy Lee

No abstract provided.