Law Commons^™

Choosing Perspectives In Criminal Procedure, Ronald J. Bacigal

Law Faculty Publications

In this Article, Professor Bacigal examines the Supreme Court's use of various perspectives in examining the reasonableness of searches and seizures. Although the Supreme Court purports to rely on a consistent method of constitutional analysis when rendering decisions on Fourth Amendment issues, the case law in this area indicates that the Court is influenced sometimes by the citizen's perspective, sometimes by the police officers' perspective, and sometimes by the perspective of the hypothesized reasonable person. After identifying the role of perspectives in a number of seminal Court decisions, Professor Bacigal discusses the benefits and limitations of the Court's reliance on …

Irreconcilable Principles: Law, Politics, And The Illinois Supreme Court, Jackson Williams

Northern Illinois University Law Review

This article attempts to evaluate the recent criticisms of the political structure of the Illinois Supreme Court. The author examines the electoral and legal systems that usually come into potential conflicts. The goal of the article is to illustrate some important issues in the environment free from the sensationalism of press accounts and the emotionalism of political attacks, and provoke a sensible debate among the State's bar, legislators, and public about how the perception of a "political" court impacts on Illinois' legal system.

Maintaining An Accusatorial System Of Justice: The States' Refusal To Follow The Supreme Court's Sanctioning Of Official Police Deception In Moran V. Burbine, John F. Terzano

University of the District of Columbia Law Review

Ours is the accusatorial as opposed to the inquisitorial system. Such has been the characteristic of Anglo-American criminal justice since it freed itself from practices borrowed by the Star Chamber from the Continent whereby an accused was interrogated in secret for hours on end. Under our system society carries the burden of proving its charge against the accused not out of his own mouth. It must establish its case, not by interrogation of the accused even under judicial safeguards, but by evidence independently secured through skillful investigation.... Protracted, systematic and uncontrolled subjection of an accused to interrogation by the police …

Passage Of Religious Freedom Act Necessary To Fulfill Maryland's National Leadership Role, Kenneth Lasson

All Faculty Scholarship

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 …

Federalist Or Friends Of Adams: The Marshall Court And Party Politics, Mark A. Graber

Faculty Scholarship

No abstract provided.

Whose Federalism, S. Elizabeth Malloy

Faculty Articles and Other Publications

This Article examines briefly the Seminole Tribe and City of Boerne decisions. Part II then focuses on the ADA and the reasons why Congress made it applicable to government conduct as well as private conduct. Finally, Part III examines the argument, based on the new federalism, that the ADA should not apply to state entities. It does not appear that the Court's new federalism has had a liberty-enhancing effect for some of the most vulnerable persons in our society. The Court's revitalized federalism jurisprudence has led to questions about the continuing validity of many of our civil rights statutes as …

The Alien-Citizen Paradox And Other Consequences Of U.S. Colonialism, Ediberto Román

Faculty Publications

This Article examines the United States' 100-year-old failed promise. In addition to detailing the unequal citizenship status of the people of Puerto Rico, this Article examines the role that racial and ethnic-based prejudice has played in this issue. 34 Essentially, this Article seeks to compare the traditional legal and political rhetoric of American inclusiveness and the virtues of U.S. citizenship to the reality of colonialism and the impact white supremacy has had on U.S. colonial history. By addressing the subordinated status of "aliencitizens," this Article illustrates the incompatibility of equality under colonialism. As Congress addresses the question of Puerto Rico's …

The Clean Air Act Amendments Of 1990 And An Unbridled Spending Power: Will They Survive On The Supreme Court's Road To Substantive Federalism, Mark A. Miller

Cleveland State Law Review

The question remains as to how far the Supreme Court will go in its refortification of the Tenth Amendment. This Note explores emerging federalism trends and evaluates the CAA in light of a stronger state sovereignty that is appearing on the constitutional horizon. Parts II and III examine the CAAA and the constitutional problems engendered by the Act. Part IV examines current Tenth Amendment and Spending Clause jurisprudence, and illustrates that the CAAA is a classic example of how Congress has been able to circumvent the Tenth Amendment with its Spending power. Part V presents a new view of federalism …

The Admissibility Of Medical Testimony In Ohio: Daubert, Joiner And Ohio's Relevance-Reliability Standard, Gerald J. Todaro

Cleveland State Law Review

This article specifically examines the reliability standard imposed under Rule 702 of the Ohio Rules of Evidence and its application to medical expert testimony in Ohio. Section II reviews Daubert, its progeny, and Ohio law. This analysis reveals tension between Ohio's flexible relevance/reliability standard and the more exacting demands of Daubert. Section III examines the scientific basis of clinical diagnosis and treatment of illness and disease. This section argues that judges should take judicial notice of the conventional methodology underlying the clinical practice of medicine, and thus the preliminary question of reliability of medical expert testimony should rarely require a …

Full Faith And Credit And The Equity Conflict, Polly J. Price

Faculty Articles

As this Article relates, the current problem with interstate en­forcement of injunctions and other equitable decrees is illustrated by the Court's confusion in Baker. The Court reached the correct result in the case before it, but the basic problems of "equity con­flict" remain unresolved. Both the Court's opinion and the two con­currences were unsatisfactory because the Court failed to address the key underlying issue of whether or to what extent courts may rely on state law to enjoin extraterritorial conduct. Had the Court focused on this issue, I argue, it could have based its decision upon a more appealing rationale. …

Deciding The Stop And Frisk Cases: A Look Inside The Supreme Court's Conference, John Q. Barrett

Faculty Publications

In our system of constitutional decision-making, the Supreme Court makes law as an institution in its formal written opinions. The Court and its individual members make their official legal marks in the printed pages of the United States Reports. In June 1968, in Terry v. Ohio and Sibron v. New York, the two decisions that approved the constitutionality under the Fourth Amendment of police stop and frisk practices, the Court filled many official pages with rich discussion. Over the ensuing thirty years, these Court and individual opinions have shaped the course of constitutional analysis in our courts and guided the …

The Breard Case And The Virtues Of Forbearance, John G. Douglass

Law Faculty Publications

At a time when the scheduled execution of Angel Francisco Breard made Virginia the focus of a groundbreaking controversy over the reach of internationallaw into the domestic criminal process of the United States, law students and faculty at the University of Richmond had the unique opportunity to consider the case along with Philippe Sands, then a Visiting Allen Chair Professor at the University.

The Supreme Court's Impact On Marriage, 1967-90, Margaret F. Brinig

Journal Articles

In the twenty years following Loving, the Supreme Court decided a number of cases dealing with the family. Although the Court reasoned that it was protecting marriage and extending such protection to other forms of families, the perverse effect of these decisions was to weaken the most traditional family type of all, the nuclear family. Adults, and particularly pregnant women and unwed fathers, triumphed in this move towards autonomy and rights. The vanquished included those who depended upon the family for love and sustenance: minor children, elderly adults, and longtime homemakers.

This paper discusses these cases from a family law …

Hopwood, Bakke And The Future Of The Diversity Justification, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

The decision of the Court of Appeals for the Fifth Circuit in Hopwood v. Texas sent shock waves through the academic community with its holding that the Equal Protection Clause of the Fourteenth Amendment prohibited the University of Texas Law School from taking account of race as a factor in its admissions process. In the course of invalidating certain procedures employed by the law school, the Fifth Circuit concluded that Justice Powell's influential opinion in Regents of the University of California v. Bakke, which recognized the pursuit of diversity in higher education as a compelling state interest, had never constituted …

The New Etiquette Of Federalism: New York, Printz And Yeskey, Matthew D. Adler, Seth F. Kreimer

Faculty Scholarship

In New York v. United States, 505 U.S. 144 (1992), the Court revived "state sovereignty" as a justiciable constitutional constraint on federal mandates, and struck down portions of the Low-Level Radioactive Waste Policy Amendments Act on the grounds that the statute impermissibly "commandeered" state governments. Printz v. United States, 117 S.Ct. 2365 (1997), confirmed the anti-commandeering principle and relied upon it to invalidate elements of another federal statute, the Brady Act. This Article analyzes and criticizes the anti-commandeering jurisprudence, as it has emerged in New York, Printz, and a case decided by the Court last Term, Pennsylvania Department of Corrections …

Night And Day: Coeur D’Alene, Breard, And The Unraveling Of The Prospective-Retrospective Distinction In Eleventh Amendment Doctrine, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in Edelman v. Jordan has been read to establish a distinction between suits seeking prospective relief from a state official's violation of federal law (which are not barred by the Eleventh Amendment under Ex parte Young) and suits seeking retrospective relief from the state (which are barred by the Eleventh Amendment, even if the officer is the defendant). Commentators and the lower courts have long had difficulty understanding and applying the distinction. Until recently, the principal effect of the Edelman line of cases has been to bar suits seeking damages and similar monetary relief from …

Understanding Mahon In Historical Context, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Despite its enormous influence on constitutional law, Pennsylvania Coal Co. v. Mahon is just such an opinion; the primary purpose of the author’s article Jam for Justice Holmes: Reassessing the Significance of Mahon is to clarify Holmes's intent by placing the opinion in historical context and in the context of Holmes's other opinions. While other scholars have also sought to place Mahon in context, his account differs in large part because of its recognition, as part of the background of Mahon, of a separate line of cases involving businesses affected with a public interest.

The author argues that at …

Translating Federalism: A Textualist Reaction, Gregory E. Maggs

GW Law Faculty Publications & Other Works

In his rich and important article, Translating Federalism: United States v Lopez, Professor Lawrence Lessig advances two ambitious and provocative claims. Lessig first asserts that the Supreme Court has sought to control the expansion of federal power by "translating" the Commerce Clause instead of following the Clause's textual meaning. Second, Lessig proclaims that, as a normative matter, the Supreme Court should engage actively in this type of translation. In his view, the Court shows greater fidelity to the Constitution by reading it in ways that preserve the document's original function than the Court exhibits by strictly following the document's text. …

Foreword (Symposium: Finding A Path To Gender Equality: Legal And Policy Issues Raised By All-Female Public Education), Nadine Strossen

Articles & Chapters

No abstract provided.

Right To Counsel, Supreme Court, Appellate Division, First Department: People V. Leslie

Touro Law Review

No abstract provided.

Search And Seizure, Supreme Court, Appellate Division, First Department: People V. Lafontaine

Touro Law Review

No abstract provided.

Search And Seizure, Supreme Court, Appellate Division, Second Department: People V. King

Touro Law Review

No abstract provided.

Search And Seizure, Supreme Court, Bronx County: People V. Johnson

Touro Law Review

No abstract provided.

Search And Seizure, Supreme Court, Queens County: People V. Brewer

Touro Law Review

No abstract provided.

Self-Incrimination, Supreme Court, Appellate Division, Third Department: In Re Gladys H.

Touro Law Review

No abstract provided.

Jam For Justice Holmes: Reassessing The Significance Of Mahon, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

When courts and commentators discuss Pennsylvania Coal Co. v. Mahon, they use the same word with remarkable regularity: famous. Mahon has achieved this fame in part because it was the occasion for conflict between judicial giants, and because the result seems ironic. Justice Oliver Wendell Holmes, Jr.--the great Lochner dissenter and a jurist generally considered a champion of judicial deference to legislatures in the sphere of economic decision-making--wrote the opinion striking down a Pennsylvania statute barring coal mining that could cause the surface to cave-in. Sharply dissenting from Holmes's opinion was his consistent ally on the Court, Justice Louis …

Rethinking The Supreme Court’S Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine

Scholarly Works

In recent years, the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief. While the Justices have articulated valid concerns concerning these cases, courts should not allow these concerns to deter them from making decisions vital to the effective adjudication of Free Exercise and Establishment Clause cases. In fact, it appears that as a result of the Court's increasing refusal to consider carefully the religious questions central to many cases, the Court often tends to group together religious claims and practices, regardless of the relative …

Breard And The Federal Power To Require Compliance With Icj Orders Of Provisional Measures, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

Among the puzzling aspects of the Breard episode was the Clinton administration's claim that the decision whether or not to comply with the Order of the International Court of Justice requiring the postponement of Breard's execution lay exclusively in the hands of the Governor of Virginia. The ICJ's Order provided that"[t]he United States should take all measures at its disposal to ensure that Angel Francisco Breard is not executed pending the final decision in these proceedings." The Clinton administration argued that the Order was not binding, but it also took the position that, even if the order were binding, …

Does New York's Death Penalty Statute Violate The New York Constitution?, Honorable Stewart F. Hancock Jr., Christopher Quinn, Richard Klein

Touro Law Review

No abstract provided.

Establishment Of Religion, Supreme Court, Appellate Division, First Department: Robbins V. Bright

Touro Law Review

No abstract provided.