Law Commons^™

Gang Loitering, The Court, And Some Realism About Police Patrol, Debra A. Livingston

Faculty Scholarship

When the Supreme Court voted to review the decision of the Illinois Supreme Court holding Chicago's "gang loitering" ordinance invalid on federal constitutional grounds, it seemed plausible that City of Chicago v Morales would be the occasion for a major statement from the Court on a set of complex issues – issues including not only the nature of the police officer's authority to maintain order in public places, but also the relative roles of politics and judicial decision making in delineating both the limits on this authority and the latitude left to police to employ discretion in its exercise. After …

Article Iii And The Adequate And Independent State Grounds Doctrine , Cynthia L. Fountaine

American University Law Review

No abstract provided.

On Resegregating The Worlds Of Statute And Common Law, Peter L. Strauss

Faculty Scholarship

In the early afternoon of a humid, 97 degree summer day, James Gottshall was part of a crew of mostly 50- to 60-year-old men replacing track for Conrail. Michael Norvick, the crew supervisor, pressed the men to finish the work. He discouraged observance of the scheduled breaks. Richard Johns collapsed in the heat; Norvick ordered the men back to work as soon as a cold compress had revived him. Five minutes later Johns collapsed again, the victim of a heart attack. Gottshall began 40 minutes of ultimately fruitless cardiopulmonary resuscitation on Johns, his friend for 15 years. Norvick was unable …

Quo Vadis: The Status And Prospects Of Tests Under The Religion Clauses, Kent Greenawalt

Faculty Scholarship

As the 1994 term drew to a close, "tests" for the Religion Clauses were in nearly total disarray. Apart from cases of discrimination against religions, and disputes over church property, a student of the Supreme Court's jurisprudence could not formulate any general tests that a majority of the Justices clearly support. As exciting as this state of affairs is for those who welcome uncertainty and change, it is disquieting for lawyers and clients, for judges who must decide free exercise and establishment claims, and for Supreme Court Justices who aspire to stable principles of adjudication. In this essay, I provide …

Equality And Diversity: The Eighteenth-Century Debate About Equal Protection And Equal Civil Rights, Philip A. Hamburger

Faculty Scholarship

Living, as we do, in a world in which our discussions of equality often lead back to the desegregation decisions, to the Fourteenth Amendment, and to the antislavery debates of the 1830s, we tend to allow those momentous events to dominate our understanding of the ideas of equal protection and equal civil rights. Indeed, historians have frequently asserted that the idea of equal protection first developed in the 1830s in discussions of slavery and that it otherwise had little history prior to its adoption into the U.S. Constitution. Long before the Fourteenth Amendment, however – long before even the 1830s …

The Constitutional Principle Of Separation Of Powers, Thomas W. Merrill

Faculty Scholarship

The Supreme Court has had many occasions in recent years to consider what it calls "the constitutional principle of separation of powers." The principle in question has been effusively praised and on occasion vigorously enforced. But just what is it? The Court clearly believes that the Constitution contains an organizing principle that is more than the sum of the specific clauses that govern relations among the branches. Yet notwithstanding the many testimonials to the importance of the principle, its content remains remarkably elusive.

The central problem, as many have observed, is that the Court has employed two very different conceptions …

The End Of New York Times V Sullivan: Reflections On Masson V New Yorker Magazine, Lee C. Bollinger

Faculty Scholarship

Virtually every year since New York Times v Sullivan, the Supreme Court has decided at least one or two First Amendment cases involving the press. This now seemingly permanent, annual pageant of media cases undoubtedly has significance for the development of both constitutional law and the character of American journalism, though oddly that significance has been little explored in the scholarly literature. This past year the Court had two cases, both of which received an unusual amount of discussion within the press. It is, of course, understandable, even if not wholly defensible, for the press to give disproportionate coverage …

Harmless Error And The Valid Rule Requirement, Henry Paul Monaghan

Faculty Scholarship

Nearly a decade ago in the pages of this journal, in discussing the nature of overbreadth challenges, I drew attention to what may be characterized as the "valid rule requirement." A defendant in a coercive action always has standing to challenge the rule actually applied to him. This means that he can resist sanctions unless they are imposed in accordance with a constitutionally valid rule, whether or not his own conduct is constitutionally privileged. The valid rule requirement focuses upon the rule as applied to the defendant by the jury instructions. In Pope v. Illinois the Court held that harmless …

From Sovereignty To Process: The Jurisprudence Of Federalism After Garcia, Andrzej Rapaczynski

Faculty Scholarship

On February 19, 1985, the Supreme Court, in Garcia v. San Antonio Metropolitan Transit Authority, overruled its 1976 decision in National League of Cities v. Usery. Although the continued vitality of National League of Cities had been in question in recent years, the Court's abrupt repudiation of the very principle announced in that case is an event of considerable significance, beyond showing, one more time, that the rule of stare decisis has a limited application in the Court's modern constitutional adjudication. Garcia's importance lies, above all, in revealing the absence of anything approaching a well elaborated theory of federalism that …

Overbreadth, Henry Paul Monaghan

Faculty Scholarship

The concern in constitutional law with "overbreadth" is generally understood to denote a conscious departure from conventional standing concepts in free-expression cases. Assertedly justified by the special vulnerability of protected expression to impermissible deterrence, overbreadth doctrine invites litigants to attack the facial validity of rules which burden expressive interests. A litigant whose expression is admittedly within the constitutionally valid applications of a statute is permitted to assert the statute's potentially invalid applications with respect to other persons not before the court and with whom the litigant stands in no special relationship. Judicial focus is not on the protected character, vel …

"Twisting Slowly In The Wind": A Search For Constitutional Limits On Coercion Of The Criminal Defendant, John C. Coffee Jr.

Faculty Scholarship

In the corridor outside Courtroom Four, Foster Clark approached the prosecutor. "I was wondering," he said, "are we really going to have to try this case?"

"Well," the prosecutor said, "that depends. He's dead on and gone to heaven, if that's what you mean. He doesn't have a prayer."

"I was wondering if we could work something out," Clark said. "I haven't really had a chance to talk with him, but I was wondering."

"So talk to him," the prosecutor said. "Find out where he stands, and call me."

* * *

"Look," the prosecutor said, "you know I can't …

All Or Nothing At All: The Defeat Of Selective Conscientious Objection, Kent Greenawalt

Faculty Scholarship

The generosity of the United States Supreme Court to conscientious objectors whom Congress has declined to exempt from military service has apparently ended. In Gillette v. United States, decided with Negre v. Larsen, the Court decisively closed the door on claims that those conscientiously opposed to participation in particular wars are entitled by statute or constitutional right to an exemption from military service. Mr. Justice Marshall's majority opinion first disposes of the statutory claim. According to the opinion, the relevant language of § 6(j) of the Military Selective Service Act of 1967," conscientiously opposed to participation in war …