Law Commons^™

The Supreme Court: "The First Hundred Years Were The Hardest", William H. Rehnquist

University of Miami Law Review

No abstract provided.

The Doctrine Of Inevitable Discovery: A Plea For Reasonable Limitations, Steven P. Grossman

All Faculty Scholarship

In reinstating the Iowa murder conviction of Robert Williams, the Supreme Court accepted explicitly for the first time the doctrine of inevitable discovery. Applied for some time by state and federal courts, the doctrine of inevitable discovery is a means by which evidence obtained illegally can still be admitted against defendants in criminal cases. Unfortunately, the Court chose to adopt the doctrine without any of the safeguards necessary to insure that the deterrent impact of the exclusionary rule would be preserved, and in a form that is subject to and almost invites abuse.

This article warns of the danger to …

The Evolving Concept Of Preemption Removal: An Expansion Of Federal Jurisdiction., Scott Roberts

St. Mary's Law Journal

Federal jurisdiction based on preemption removal should extend to federal laws which meet the requirements of Franchise Tax Board v. Construction Laborers Vacation Trust and Metropolitan Life Insurance Company v. Taylor. The well-pleaded complaint rule restricts federal removal jurisdiction. The well-pleaded complaint rule requires a federal question appear on the face of the plaintiff’s complaint for federal jurisdiction to attach. Therefore, the defendant’s right to a federal forum depends upon whether the plaintiff chooses to invoke a federal claim in its complaint. Courts routinely criticize the linking of removal jurisdiction to the well-pleaded complaint rule for giving plaintiffs incentive to …

Student Speech—Free Press In High Schools, Michael A. Simons

Faculty Publications

(Excerpt)

Public educators in the United States are expected to pass on to their students—to inculcate in them—the shared values of their community. This communication of values is essential to the continued vitality of American culture and to the social, moral, and political education of students. Yet inculcation of community values cannot be allowed to trample students' individual liberties; public educators must strike a delicate balance between the state's educational interests and the students' rights to self-expression. Although the striking of this balance should initially be left to local educators, when value inculcation impermissibly interferes with students' constitutional rights, courts …

The Supreme Court’S Case Law On Public Property, Abdelfattah Eddahbi

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

This article studies Moroccan Supreme Court case law concerning public property (the public domain) and the criteria used to characterize and protect it. It shows how jurisprudence clarifies the fundamental features of public ownership and addresses uncertainties inherited from earlier periods, including the distinction between formal allocation and factual public use. The author reviews the main legal references governing the public domain and explains how judicial interpretation affects administrative action, liability, and dispute resolution. By analyzing competing criteria used by courts, the paper argues for a more consistent approach that strengthens predictability and the protection of public assets.

The Role Of The Supreme Court, A. Boudahrain

Revue Marocaine de Droit, d'Economie et de Gestion (Moroccan Journal of Law, Economics and Management)

This article outlines the Supreme Court’s institutional role within a hierarchical judiciary, describing its organization, chambers, and principal competences. It emphasizes the Court’s mission to ensure compliance with the law and to unify jurisprudence through cassation‑type review, while also addressing specific forms of administrative litigation. The author discusses practical concerns related to procedural effectiveness and access to justice, and highlights the importance of support services that enable consistent decision‑making and publication of case law. The paper concludes that strengthening institutional capacity and improving procedures are key to consolidating the Supreme Court’s role in legal certainty and judicial coherence.

The Constitution, Religion, And American Public Life, Gerard V. Bradley

Journal Articles

From the Introduction

Even a nonspecialist familiar with all of the contiguous disciplines - religious studies, theology, all facets of American history, the history of Christianity, sociology of knowledge, even constitutional and legal history up to World War II - would never guess what American constitutional law of church and state really is. The temptation after reading the actual cases concerning church and state is to dismiss them as stupid. Church-state is the realm of "legendary inconsistencies," as one sympathetic scholar put it.

The sorriest scene in this legal wonderland is a recurring one, and plays in the public schoolroom. …

Stare Decisis And Constitutional Adjudication, Henry Paul Monaghan

Faculty Scholarship

Despite endless literature urging that constitutional adjudication be severed from explorations into the understandings at the creation of the Constitution, original understanding continues to play a prominent role in the Supreme Court's jurisprudence. For the Court, originalism seemingly provides a legitimate ground for decisionmaking; for the people, it provides assurances against judicial usurpation of power properly belonging to other branches of government, or retained by the people themselves.

But difficulties with originalism emerge once the existing constitutional order is actually examined. The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably …

Taking The Framers Seriously, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

This article reviews Taking the Constitution Seriously by Walter Berns (1987).

This review focuses on three of the key historical points that Walter Berns makes: his arguments that the Declaration of Independence is a Lockean document; that the Constitution encapsulates the political philosophy of the Declaration; and that the framers viewed the commercialization of society as a salutary development and were unambivalent champions of the right to property. Examination of these issues suggests that the ideological universe of the framers was far more complex than Berns indicates. While the revolutionary era witnessed a new concern with individual rights and a …

Jurisdiction By Necessity: Examining One Proposal For Unbarring The Doors Of Our Courts, Tracy L. Troutman

Vanderbilt Journal of Transnational Law

Although the usually proclaimed goals of the United States legal system are "fair play and justice," a person who is injured in some way, who feels that he has had his rights violated, or who seeks to enforce a business agreement, may not necessarily have a remedy in its judicial system. Often a court may claim it lacks power to hear a case because it does not have jurisdiction over the defendant or the subject matter of the suit. Another motive of a court for refusing to hear the case may be simply the necessity to clear its docket. One …

Administrative Searches For Evidence Of Crime: The Impact Of New York V. Burger, Perry S. Reich

Touro Law Review

No abstract provided.

Risk Arbitrage And Insider Trading: A Functional Analysis Of The Fiduciary Concept Under Rule 10b-5, Laurence A. Steckman

Touro Law Review

No abstract provided.

Marriage, Procreation, And The Prisoner: Should Reproductive Alternatives Survive During Incarceration?, Jacqueline B. Deoliveira

Touro Law Review

No abstract provided.

The Right To Speak, The Right To Hear, And The Right Not To Hear: The Technological Resolution To The Cable/Pornography Debate, Michael I. Meyerson

All Faculty Scholarship

The advent of cable television presented a new opportunity to consider the competing interests on each side of the free speech/pornography debate. This Article attempts to construct an analysis that will be consistent with Supreme Court teaching on how government, under the first amendment, may constitutionally regulate legal obscenity, particularly in the name of protecting those who wish to avoid exposure to such material.

The Article shows how, unlike earlier battles over technology and pornography, cable television presented the novel opportunity to have a technological rather than a censorial solution to this difficult problem.

Playing The Drug-Testing Game: College Athletes, Regulatory Institutions, And The Structures Of Constitutional Argument, John A. Scanlan

Indiana Law Journal

No abstract provided.

Constitutional Fact Review: An Essential Exception To Anderson V. Bessemer, Ann Zobrosky

Indiana Law Journal

No abstract provided.

Does Plight Make Right: The Battered Woman Syndrome, Expert Testimony And The Law Of Self-Defense, Mira Mihajlovich

Indiana Law Journal

No abstract provided.

Whatever Happened To The "Right To Know?": The Right Of Access To Government-Controlled Information Since Richmond Newspapers On Those Who Don't, Michael Hayes

All Faculty Scholarship

No abstract provided.

Rethinking The Class Action: A Policy Primer On Reform, John C. Coffee Jr.

Indiana Law Journal

No abstract provided.

A Constitutional Right Of Access To Pretrial Documents: A Missed Opportunity In Reporters Committee For Freedom Of The Press, Daniel J. Kopp

Indiana Law Journal

No abstract provided.

Rational Basis With Bite: Intermediate Scrutiny By Any Other Name, Gayle Lynn Pettinga

Indiana Law Journal

No abstract provided.

Adjudicatory Jurisdiction And Class Actions, Diane P. Wood

Indiana Law Journal

No abstract provided.

Procedural Due Process: The Original Understanding, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

The Second Death Of Substantive Due Process, Daniel O. Conkle

Indiana Law Journal

No abstract provided.

Criminal Procedure In The Rehnquist Court: Has The Rehnquisition Begun?, Craig M. Bradley

Indiana Law Journal

No abstract provided.

The American Constitution: A Double Life, Lawrence M. Friedman

University of Arkansas at Little Rock Law Review

No abstract provided.

Preliminary Screening Of Prosecutorial Access To Death Qualified Juries: A Missing Constitutional Link, F. Thomas Schornhorst

Indiana Law Journal

No abstract provided.

The Supreme Court And The Definition Of "Security": The"Context" Clause, "Investment Contract" Analysis, And Their Ramifications, Marc I. Steinberg, William E. Kaulbach

Vanderbilt Law Review

In two recent decisions' construing the scope of the federal securities acts, the Supreme Court apparently has undertaken to alleviate some of the confusion and uncertainty surrounding the most fundamental question in securities law: the definition of"security" itself. Much of the existing confusion can be traced to earlier decisions of the Court that first implied, and later held,that the regulatory or offering context in which a particular transaction occurs could function to exclude the transaction from cover-age of the securities laws' anti-fraud provisions. This result could follow even though the transaction in question otherwise might satisfy the traditional Howey or …

Lawyers And The Supreme Court: Of Means And Ends, Murray L. Schwartz

Georgia State University Law Review

No abstract provided.

Do The United States Sentencing Guidelines Deprive Defendants Of Due Process?, Bradford Mank

Faculty Articles and Other Publications

It is difficult to determine whether due process requires individualized sentencing because sentencing goals and practices have varied greatly during the course of this nation's history. A court applying Judge Bork's original intent doctrine of constitutional interpretation would probably reach a result different from that reached by a court employing a more liberal view of due process protections.1o It is likely that liberals and conservatives on the current Supreme Court would disagree on whether the Guidelines violate due process.

This article argues that the Guidelines can be saved and can satisfy due process requirements if the Supreme Court interprets the …