Law Commons^™

Making Sense Of Desegregation And Affirmative Action, William W. Van Alstyne

Faculty Scholarship

This review discusses J. Harvie Wilkinson's "From Brown to Bakke" and its companion work, "Counting by Race: Equality from the Founding Fathers to Bakke and Weber" written by Terry Eastland and William J. Bennett. Wilkinson's work is found to maintain a narrow focus on its specific subject of school desegregation and the Supreme Court, but it suffers from over-exaggeration and an abundance of adornment in his writing style. "Counting" is a provocative piece that asserts the position that the Constitution is still not color-blind, despite what many have proposed, and makes an authoritative argument for such a claim.

The Body Of John Merryman: Ex Parte Merryman, A Case Of Executive-Judicial Conflict Over The Suspension Of Habeas Corpus, Eric Paul Anderson

All Master's Theses

At the outbreak of the Civil War the Federal military arrested certain people whose loyalty was suspect. One victim, John Merryman, attempted to free himself by petitioning for a writ of habeas corpus. However, President Lincoln authorized the military to suspend the writ in such cases. The matter came before Chief Justice Taney who disputed the president's authority to suspend the writ and ruled in Merryman's favor. This thesis recounts the history of the habeas corpus process in Anglo-American law and its inclusion in the Constitution, Merryman's role in the first hostilities, his arrest, and the attempt to free him. …

Memoranda, Etc., For/By Justice Harry Blackmun Re: Smith V. Maryland, Harry Blackmun

Historical and Topical Legal Documents

No abstract provided.

Aussergesetzliche Masstabe In Der Rechtspreching Des Supreme Court Der Vereinigten Staaten, Donald P. Kommers, Kenneth Ripple

Journal Articles

Zweck der folgenden Ausführungen ist die Darlegung der Bedeutung außergesetz licher Urteilsmaßstäbe in der amerikanischen Verfassungsrechtsprechung. Dabei sollen vor allem diejenigen Urteilskriterien untersucht werden, die den größten Einfluß auf das amerikanische Verfassungsrecht haben dürften; sie sollen im Kontext des gegen wärtigen case law untersucht werden.

The Due Process Mandate And The Constitutionality Of Admiralty Arrests And Attachments Pursuant To Supplemental Rules B And C, Jon L. Goodman

Vanderbilt Journal of Transnational Law

In the past decade, the area of procedural due process, including traditional doctrines of in rem and quasi in rem jurisdiction, has undergone a constitutional facelift. As a result, two of admiralty's most extraordinary features--maritime attachment and garnishment and actions in rem--have been questioned from a constitutional standpoint.

The United States Supreme Court inaugurated the new era with its decision in Sniadach v. Family Finance Corp. In that case, the Court first began changing its procedural due process philosophy by broadening its conception of constitutionally protected forms of property. Having narrowly addressed itself to the question of what constitute constitutionally …

Pfizer, Inc. V. India Foreign Sovereigns’ Standing To Sue For Treble Damages, Gary M. Shaw

Scholarly Works

No abstract provided.

Taking Supreme Court Opinions Seriously, Henry Paul Monaghan

Faculty Scholarship

Taking Supreme Court opinions seriously emerged as a topic of discussion at a lunch I attended last year with several Supreme Court law clerks. Somehow we came round to a particular three-judge district court case which I confidently opined was "certain" to be reversed on the basis of principles announced in prior opinions. The clerks were models of politeness and circumspection; never once did they even intimate that the judgment would (by divided vote) be affirmed. But shortly after I had announced my views of that case, one of the clerks began to prod me, asking whether I simply took …

Professor Jones And The Constitution, Henry Paul Monaghan

Faculty Scholarship

Professor Harry Jones's elegant and stimulating Waterman lectures begin on a salutary note. Professor Jones rightly reminds us that, first and foremost, a constitution is not exclusively or primarily a limitation on the exercise of political power, but rather is a charter for its exercise. Accordingly, to view the Constitution as "all brakes and no engine" suggests a serious and fundamental myopia, albeit an understandable one given the popular preoccupation with the Supreme Court's role in vindicating guarantees of civil liberty. But that preoccupation, Professor Jones notes, does more than distort the meaning of the Constitution; it ignores an historically …

Recent Decisions Of The Supreme Court In Labor Law, David S. Bogen

Faculty Scholarship

No abstract provided.

Presuming Lawyers Competent To Protect Fundamental Rights: Is It An Affordable Fiction?, Robert G. Lawson

Law Faculty Scholarly Articles

This article explores the ramifications of Wainwright v. Sykes, a case decided before the Supreme Court of the United States in 1977. The broad question before the Court in Sykes concerned the extent to which state prisoners should have access to federal court by use of the writ of habeas corpus. The narrow issue before the Court concerned the impact on a prisoner's claim for habeas relief of procedural defaults (such as a failure to object to evidence, a failure to perfect an appeal, etc.) that occur in the state proceeding under attack. In considering these important issues Justice …

Village Of Arlington Heights V. Metropolitan Housing Development Corp., 97 S. Ct. 555 (1977), Karen K. Kinkennon

Florida State University Law Review

Zoning- DISCRIMINATORY INTENT MUST BE PROVED BEFORE COURTS MAY REACH FOURTEENTH AMENDMENT EQUAL PROTECTION ISSUES.

Santa Fe Industries, Inc. V. Green: An Analysis Two Years Later, Rutheford B. Campbell Jr.

Law Faculty Scholarly Articles

In 1977, the Supreme Court decided Santa Fe Industries, Inc. v. Green. Although the outcome of that decision should have surprised no one, since the trend of the Court clearly had been to constrict the scope of the federal securities legislation, the case was a major decision that will have a substantial impact on the development of corporate law in this country. Indeed, it may turn out to be one of the most significant corporate cases decided by the Supreme Court in recent years. Since by this point the dust has settled from the case, it seems appropriate to …

Mergers Under The Burger Court: An Anti-Antitrust Bias And Its Implications, Howard R. Lurie

Villanova Law Review (1956 - )

No abstract provided.

Antitrust - Treble-Damage Action - Hanover Shoe Inc. Rule Bars Offensive Use Of Passing-On Doctrine By Indirect Purchaser, Karen Lee Turner

Villanova Law Review (1956 - )

No abstract provided.

Toward A Representation-Reinforcing Mode Of Judicial Review, John Hart Ely

Maryland Law Review

No abstract provided.

Constitutional Law - Fourteenth Amendment - Statute Denying Illegitimates The Right To Inherit By Intestate Succession From Their Fathers Held To Be Invidious Discrimination In Violation Of The Equal Protection Clause Of The Fourteenth Amendment, Lisa S. Hunter

Villanova Law Review (1956 - )

No abstract provided.

The Impact Of Pacifica Foundation On Two Traditions Of Freedom Of Expression, Stephen W. Gard, Jeffrey Endress

Cleveland State Law Review

The United States Supreme Court, in FCC v. Pacifica Foundation, had a magnificent opportunity to either begin the process of defining first amendment limitations on the scope of the authority of the FCC to regulate the content of broadcast expression, explicate a rational ground for the differential status of broadcasting, or perhaps both. The purpose of this article is not to debate the wisdom of the use of sensitive language on the electronic media or elsewhere. Nor is it our purpose to debate the substantive question of whether the Court reached the proper result in Pacifica, although we will necessarily …

Trends In The United States Supreme Court's Use Of The Ripeness Doctrine In Free Speech And Association Cases: A Comparison With Canadian Trends, Barbara Child

Case Western Reserve Journal of International Law

No abstract provided.

The Impact Of Pacifica Foundation On Two Traditions Of Freedom Of Expression, Stephen W. Gard, Jeffrey Endress

Cleveland State Law Review

The United States Supreme Court, in FCC v. Pacifica Foundation, had a magnificent opportunity to either begin the process of defining first amendment limitations on the scope of the authority of the FCC to regulate the content of broadcast expression, explicate a rational ground for the differential status of broadcasting, or perhaps both. The purpose of this article is not to debate the wisdom of the use of sensitive language on the electronic media or elsewhere. Nor is it our purpose to debate the substantive question of whether the Court reached the proper result in Pacifica, although we will necessarily …

National League Of Cities V. Usery―The Commerce Power And State Sovereignty Redivivus , Bernard Schwartz

Fordham Law Review

No abstract provided.

Recent Developments

American Indian Law Review

No abstract provided.

Bakke Revisited - What The Court's Decision Means - And Doesn't Mean, Douglas D. Scherer

Scholarly Works

No abstract provided.

Federal Habeas Corpus And Ineffective Representation Of Counsel: The Supreme Court Has Work To Do, Peter W. Tague

Georgetown Law Faculty Publications and Other Works

The availability of federal habeas corpus relief for state criminal defendants has always borne a complex relationship to state rules barring defendants from litigating constitutional claims in state court because of procedural defaults in raising those claims. The Warren Court's landmark attempt to resolve this relationship was the 1963 decision in Fay v. Noia, which asserted that a state procedural forfeiture rule could not bar federal habeas review of a constitutional claim unless the defendant had "deliberately bypassed" the procedural opportunity to raise the claim; the Court defined "deliberate bypass" in terms of a defendant's intentional and voluntary relinquishment of …

Young Adults As A Cognizable Group In Jury Selection, Donald H. Zeigler

Articles & Chapters

No abstract provided.

The Early Legal Career Of Howell Jackson, Terry Calvani

Vanderbilt Law Review

Felix Frankfurter observed in 1937 that "American legal history has done very little to rescue the [United States Supreme] Court from the limbo of impersonality."' Subsequently, numerous individual and collective works have focused on the more prominent figures in the history of that institution.' Unfortunately, there remain many justices of the Supreme Court who have received relatively little scholarly attention. Yet, as one political scientist has recently lamented, "[until] there is a fuller awareness of the inter-play between individual personalities and decision making, it is unlikely there will be 'an adequate history of the Supreme Court."

One such individual is …

Reason And The Fourth Amendment―The Burger Court And The Exclusionary Rule , Norman M. Robertson

Fordham Law Review

No abstract provided.

Labor Law - Labor-Management Reporting And Dislcosure Act - Meeting Attendance Requirement For Candidates For Union Office Found Invalid, Charles D. Ossola

Villanova Law Review (1956 - )

No abstract provided.

Book Review: The Law Of Obscenity, Edward J. Berbusse, S.J.

Fordham Urban Law Journal

Edward J. Berbusse, S.J. reviews The Law of Obscenity by Frederick F. Schauer. Schauer's book provides a historical perspective on obscenity law, tracking developments through several centuries. It begins with a look at obscenity law within the Church during the 16th and moves through civil law in England and up to the present in the United States. The book then explores the Miller v. California decision and the Supreme Court's move to a local standard, rather than national, of obscenity. In addition to the Miller case, Schauer looks at other important decisions which developed the modern body of law focusing …

From Washington To Arlington Heights And Beyond: Discriminatory Purpose In Equal Protection Litigation, Robert G. Schwemm

Law Faculty Scholarly Articles

When the Supreme Court decided Washington v. Davis on June 7, 1976, it began a new era in civil rights law. Rejecting the contention that state action is unconstitutional solely because it operates to injure more blacks than whites, the Court held that proof of discriminatory purpose is necessary to establish a claim of racial discrimination under the equal protection clause. In two cases decided the following term—Village of Arlington Heights v. Metropolitan Housing Development Corp. and Castaneda v. Partida—the Court reaffirmed its commitment to the discriminatory purpose requirement, but was badly divided on how to apply the …

Equality Before The Law And The Indian Act: In Defence Of The Supreme Court, Patrick N. Mcdonald

Dalhousie Law Journal

The British North America Act' declares in section 91(24) that the exclusive legislative authority of Parliament extends to "Indians, and Lands reserved for the Indians". The Canadian Bill of Rights provides that no law of Canada shall be applied so as to abridge the right of the individual to equality before the law without discrimination by reason of race, national origin, colour, religion or sex. Three recent decisions of the Supreme Court of Canada have grappled with the reconciliation of constitutional authorization and statutory proscription. The trilogy has evoked a virtually unprecedented volume of critical comment, the common feature of …