Constitutional Law Commons^™

The Supreme Court, Compulsory Education, And The First Amendment's Religion Clauses, Philip B. Kurland

West Virginia Law Review

No abstract provided.

The Future Of Capital Punishment In Florida: Analysis And Recommendations, Charles W. Ehrhardt, Phillip A. Hubbart, Harold Levinson, William Mckinley Smiley, Thomas A. Wills

Scholarly Publications

The Supreme Court's decision abolishing the death penalty, at least as it existed in most jurisdictions, hardly represents the final resolution of the controversy over capital punishment. Given substantial public sentiment which apparently favors capital punishment in some form-voiced, for example, in the results of the recent referendum in California-various legislative bodies will face the question of whether capital punishment can and should be legislatively reinstated. In December 1972 the State of Florida became the first jurisdiction to pass judgment on this question. The legislature enacted a bill allowing imposition of the death penalty in certain circumstances. The two articles …

The Confrontation Clause And The Scope Of The Unavailability Requirement, Jerry J. Phillips

University of Michigan Journal of Law Reform

The confrontation clause is that language of the sixth amendment to the United States Constitution which provides, "[I]n all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him." Despite the seemingly absolute language of the confrontation clause, which would suggest that no hearsay evidence may be admitted against an accused in a criminal proceeding, its guarantee has been subject to exception. For example, when either a witness to an event or his testimony is shown to be unavailable, others will be allowed to testify as to the information which the declarant-witness has related …

The Reincarnation Of The Death Penalty: Is It Possible?, Yale Kamisar

Articles

Fifty years ago Clarence Darrow, probably the greatest criminal defense lawyer in American history and a leading opponent of capital punishment, observed: The question of capital punishment has been the subject of endless discussion and will probably never be settled so long as men believe in punishment. Some states have abolished and then reinstated it; some have enjoyed capital punishment for long periods of time and finally prohibited the use of it. The reasons why it cannot be settled are plain. There is first of all no agreement as to the objects of punishment. Next there is no way to …

The Abolition Of Self-Help Repossession: The Poor Pay Even More, James J. White

Articles

In this paper I propose to identify possible ways in which a court could uphold the constitutionality of section 9-503 without an explicit rejection of Fuentes v. Shevin. It is my thesis that Fuentes v. Shevin is probably an undesirable outcome, and that the application of the same doctrine to self-help repossession is certainly undesirable and would constitute due process gone berserk. My arguments will not be novel; each has been suggested by the courts that have considered this matter, or by the briefs of the lawyers who have argued these cases. I cannot even claim to have collected the …

Book Review Of Equal Justice: The Warren Era Of The Supreme Court, W. Taylor Reveley Iii

Faculty Publications

No abstract provided.

A Critical Guide To Ex Parte Mccardle, William W. Van Alstyne

Faculty Publications

Given the growing trend of proposed Congressional bills seeking to remove certain types of cases from the Supreme Court's appellate jurisdiction, this examination looks back on Ex Parte McCardle, the quintessential case that defined the limits of the Exceptions Clause.

Kaplan V. California, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Judicial Supremacy Re-Examined: A Proposed Alternative, G. Sidney Buchanan

Michigan Law Review

A citizen critic recently expressed to me his bitter opposition to the Warren Court's decisions on school prayer and school desegregation. If this critic were elected governor of a state or placed in some other position of governmental authority, he would almost certainly use his power to block public school desegregation and to encourage prayer reading in the public schools. Conceding that our critic would be acting controversially in so using his power, would he be acting unconstitutionally? This is the question which this Article will attempt to answer. More generally, this Article will consider the extent to which a …

Educational Financing, Equal Protection Of The Laws, And The Supreme Court, Michigan Law Review

Michigan Law Review

Recently, state systems of financing public education have been overturned or seriously threatened by several state and federal court cases based on the equal protection clause of the fourteenth amendment. Rodriguez v. San Antonio Independent School District, which invalidated the Texas system of educational financing, will be argued before the Supreme Court next term. This Comment will examine the doctrinal and policy problems that the Court will confront and the alternative solutions that are available to the Court when it considers the constitutionality of the Texas system, which is typical of the educational financing programs that have generated so …

Book Review: Reconstruction And Reunion, 1864-88, Part One, David S. Bogen

Faculty Scholarship

No abstract provided.

Legislative Purpose, Rationality, And Equal Protection, Robert F. Nagel

Publications

No abstract provided.

Book Reviews, Francis X. Beytagh, Jr., Robert L. Carter, William E. Miller, Judge

Vanderbilt Law Review

Books Reviewed:

The Supreme Court and the Idea of Progress

by Alexander M. Bickel

New York: Harper & Row, 1970. Pp. xii, 210. $6.50.

Politics, the Constitution and the Warren Court

By Philip B. Kurland Chicago

University of Chicago Press, 1970. Pp. xxv, 222.$9.75.

Reviewer: Francis X. Beytagh, Jr.

============================

Books Reviewed:

Politics of Southern Equality: Law and Social Change in a Mississippi County

By Frederick M. Wirt

Chicago: Aldine Publishing Co., 1970. Pp. 335. $10.00.

reviewer: Robert L. Carter

============================

The Apportionment Cases

By Richard C. Cortner Knoxville: University of Tennessee Press, 1970. Pp. ix. 283. $10.00.

reviewer William …

Constitutional Law--Double Jeopardy--Collateral Estoppel Is Constitutionally Required In Criminal Cases Because It Is Embodied In The Fifth Amendment Double Jeopardy Clause--Ashe V. Swenson, Michigan Law Review

Michigan Law Review

It is, therefore, important in any analysis of the Ashe decision to examine the policies and purposes behind collateral estoppel and double jeopardy and the current effectiveness of the two doctrines in light of these policies and purposes. The policies of the double jeopardy guarantee are well defined in the federal cases. Basically, it is recognized that the state, having at hand many more resources than the average defendant can muster, should not be allowed to make successive attempts to convict an individual for an alleged offense. Successive prosecutions cause the defendant expense and embarrassment and force him to live …

Book Review Of Court And Constitution In The Twentieth Century, Paul G. Kauper

William & Mary Law Review

No abstract provided.

The Supreme Court And Fundamental Rights--A Problem Of Judicial Method, James H. Wildman

Vanderbilt Law Review

Since the Constitution is a plan of written but flexible basic rights, interpreted and applied by a judiciary with few limitations upon its powers, it is necessary to avoid conferring carte blanche discretion upon the Court. This Note adopts the premises that we may be arriving at an era when "liberty" will demand constitutional protection of human interests other than those explicitly embodied within the text of the Bill of Rights; that judicial identification of those interests is often the most effective method for granting this protection; and that the function of constitutional due process is to preserve the relevancy …

The Supreme Court: Viable Fallibilism Or Fatal Infallibility, Bernard Goodwin

Vanderbilt Law Review

The recent growth in the importance and apparent power of the Supreme Court has been one result of our rapidly changing twentieth century society. In the social ferment of the last two decades, the Court, more than Congress, has expressed the conscience and intellectual consensus of American culture. Speaking as a practicing attorney and concerned citizen, the author of this article does not criticize the Court for stepping into this gap in our governmental structure, but he feels that the possibility of increased activism on the part of the Court indicates a serious breakdown in governmental checks and balances and …

The Warren Court: Completion Of A Constitutional Revolution, William F. Swindler

Faculty Publications

No abstract provided.

Prospectivity And Retroactivity Of Supreme Court Constitutional Interpretations

University of Richmond Law Review

The freedom of a court, state or federal, to define the limits of ad- herence to precedent has been sanctioned by the Supreme Court in both civil' and criminal cases. Accordingly, any decision can be made to apply to future cases or relate back to all past cases. In no other area of the law is such a decision more important than in the field of criminal procedure where the freedom of a convicted man can rest upon a decision to apply a new "rule" retroactively or prospectively. It is not surprising, therefore, that the majority of retroactivity cases involve …

The Supreme Court, The President And Congress, William F. Swindler

Faculty Publications

No abstract provided.

Books Received

University of Richmond Law Review

These are the books received by the Law School in 1970.

Book Reviews, Law Review Staff

Vanderbilt Law Review

This is a deceptive book. It appears to be one more friendly appraisal of the work of the Warren Court--this time from the recent Solicitor General-surveying in giant steps and broad strokes its decisions in six major areas within the short space of 135 pages. On close reading it turns out to be a tough-minded essay written with notable lucidity, analytical density, and high professional competence. Moreover, it confronts directly and steadily the well-worn paradox or dilemma of the Supreme Court of the United States which must be both court and political institution, and it seriously attempts to appraise the …

Comment On Powell V. Mccormack, Terrance Sandalow

Articles

The rapid pace of constitutional change during the past decade has blunted our capacity for surprise at Supreme Court decisions. Nevertheless, Powell v. McCormack is a surprising decision. Avoidance of politically explosive controversies was not one of the most notable characteristics of the Warren Court. And yet, it is one thing for the Court to do battle with the Congress in the service of important practical ends or when the necessity of doing so is thrust upon it by the need to discharge its traditional responsibilities. It is quite another to tilt at windmills, especially at a time when the …

A Critical Guide To Marbury V. Madison, William W. Van Alstyne

Faculty Publications

The concept of judicial review of the constitutionality of state and federal statutes by the Supreme Court is generally rested upon the epic decision in Marbury v. Madison. The controversies which have surrounded the exercise of this power by the Supreme Court require a periodic reexamination of the concept of judicial review at its source, the Marbury opinion. This article proceeds by examining the historical context in which the case arose and analyzes the opinion in terms of various alternative approaches which might have been utilized by Chief Justice Marshall. The specific holding of the case is isolated in contrast …

Unconstitutional Conditions Upon Public Employment: New Departures In The Protection Of First Amendment Rights, Harold H. Bruff

Publications

No abstract provided.

The Supreme Court And The People, Everett Mckinley Dirksen

Michigan Law Review

There is only one circumstance, as I read the Constitution, which authorizes the federal government to intrude or interfere with the governmental structure of a state. That would occur under the provisions of section 4 of article IV, which, in pertinent part, state: "The United States shall guarantee to every State in this Union a Republican form of Government .... " This was the question, if indeed there was a federal question, to be determined in the earlier Baker v. Carr and the reapportionment cases. To rely on the fourteenth amendment for authority to establish by judicial decree a new …

'Custodial Interrogation' Within The Meaning Of Miranda, Yale Kamisar

Book Chapters

The primary conceptual hurdle confronting the Miranda Court was the "legal reasoning" that any and all police interrogation is unaffected by the privilege against self-incrimination because such interrogation does not involve any kind of judicial process for the taking of testimony; inasmuch as police officers have no legal authority to compel statements of any kind, there is no legal obligation, ran the argument, to which a privilege can apply. See, e.g., the discussion and authorities collected in Kamisar, A Dissent from the Miranda Dissents: Some Comments on the "New" Fifth Amendment and the Old "Voluntariness" Test, 65 MICH. L. REv. …

The Continuing Challenge Of The Fourteenth Amendment, Thurgood Marshall

Georgia Law Review

I HAVE come here to Athens tonight to help you commemorate a great event of the past. This year marks the centennial of an occurrence which has had, and will continue to have, great impact on the people in this room. It was in 1868, on July 28 to be exact, that Secretary of State Seward certified that the fourteenth amendment had been ratified by three-quarters of the states and had become part of the Constitution. This event is not simply an isolated historical landmark for the students of this school. Historically, the ratification of the Civil War Amendments marked …

Do Police Sometimes Practice 'Civil Disobedience', Too?, Yale Kamisar

Articles

In a recent address, Mr. Joseph J. Casper, Assistant Director of the FBI, asserted that "a society living under the rule of law cannot permit persons to choose the Jaws which they will obey and the Jaws which they will break." But on reading the rest of his speech, one wonders whether he would strenuously object if the police were permitted to select the laws which they must obey and those they may disregard.

The Eleventh Amendment: Adoption And Interpretation, Doyle Mathis

Georgia Law Review

One of the controversies involving the states and the federal government is the question of suits against the states, brought by citizens of other states in the federal courts. This controversy is centered around the United States Supreme Court decision in Chisholm v. Georgia and the eleventh amendment to the United States Constitu- tion. This article is a study of the events leading to the adoption of the eleventh amendment and the subsequent attempts to gain access to the federal courts in such cases. An effort is made also to clarify Supreme Court interpretation of the eleventh amendment by considering …