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Articles 391 - 420 of 460

Full-Text Articles in Constitutional Law

Chase Court And Fundamental Rights: A Watershed In American Constitutionalism, The , Robert J. Kaczorowski Jan 1993

Chase Court And Fundamental Rights: A Watershed In American Constitutionalism, The , Robert J. Kaczorowski

Faculty Scholarship

Three weeks before he died in May 1873, the frail and ailing Salmon P. Chase joined three of his brethren in dissent in one of the most important cases ever decided by the United States Supreme Court, the Slaughter-House Cases.1 This decision was a watershed in United States constitutional history for several reasons. Doctrinally, it represented a rejection of the virtually unanimous decisions of the lower federal courts upholding the constitutionality of revolutionary federal civil rights laws enacted in the aftermath of the Civil War. Institutionally, it was an example of extraordinary judicial activism in overriding the legislative will of …

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Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen Jan 1993

Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen

Faculty Scholarship

Post-New Deal constitutionalism is in search of a theory that justifies judicial intervention on behalf of individual rights while simultaneously avoiding the charge of "Lochnerism."' The dominant historical view dismisses post-bellum substantive due process as an anomalous development in the American constitutional tradition. Under this approach, Lochner represents unbounded protection for economic rights that permitted the judiciary to read laissez faire, pro-business policy preferences into the constitutional text. Today's revisionists have mounted a substantial challenge to the dismissive views of traditionalists. Indeed, some claim Lochner reached the right result, but for the wrong reason. The revisionists characterize substantive due process …

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Giving The Devil The Benefit Of Law: Pornographers, The Feminist Attack On Free Speech, And The First Amendment, John F. Wirenius Jan 1992

Giving The Devil The Benefit Of Law: Pornographers, The Feminist Attack On Free Speech, And The First Amendment, John F. Wirenius

Fordham Urban Law Journal

The battle lines over the censorship of “pornographic” materials have been shifted by a faction of the women’s movement following the publication of Andrea Dworkin’s Pornography: Men Possessing Women. With Dworkin, Catharine A. MacKinnon, a vocal and influential female advocate, co-authored a prototypical ordinance to protect against the degradation of individuals, mainly women, in pornography. To these advocates, pornography causes direct harm to individuals coerced into sexual activity and indirect harm by inculcating society with the chauvinistic norms of the pornographic world. While Wirenius agrees with MacKinnon and Dworkin about the importance of pornography in First Amendment jurisprudence, he disagrees …

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The Miner's Canary: Tribal Control Of American Indian Education And The First Amendment, John E. Silverman Jan 1992

The Miner's Canary: Tribal Control Of American Indian Education And The First Amendment, John E. Silverman

Fordham Urban Law Journal

One legacy of America's mistreatment of its indigenous peoples has been an educational policy that has run roughshod over Native American Free Exercise rights. Today, American Indian tribes widely seek increased control over the education of their children. This position has received broad congressional and presidential support since the Nixon Administration, but more than twenty years later, Native Americans are still fighting to attain their goals. Federal statistics that rank American Indians as our least educated, most addicted, shortest-lived citizens suggest tremendous room for improvement in Indian education. Despite certain circuit court Free Exercise Clause decisions that unreasonably hold Indian …

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Giving Women The Benefit Of Equality: A Response To Wirenius, Tracy Higgins Jan 1992

Giving Women The Benefit Of Equality: A Response To Wirenius, Tracy Higgins

Fordham Urban Law Journal

This essay offers a feminist response to Mr. Wirenius’s provocative critique of Professor MacKinnon. Whether supporting or opposing pornography regulation, feminist legal scholars tend to approach the issue from neither of the traditional positions – First Amendment absolutist or moral censor. Rather, a feminist approach to pornography is informed by an understanding of the profound harm that pornography can and does inflict upon women. Consequently, even for feminists who many oppose pornographic regulation, the choice is not an obvious one, as it seems to be for Mr. Wirenius, between the good of civil libertarianism and the evil of totalitarianism. An …

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Beyond The Second Amendment: An Individual Right To Arms Viewed Through The Ninth Amendment , Nicholas J. Johnson Jan 1992

Beyond The Second Amendment: An Individual Right To Arms Viewed Through The Ninth Amendment , Nicholas J. Johnson

Faculty Scholarship

Traditionally, the debate over the individual right to possess firearms has focused on the origins and meaning of the Second Amendment. Some constitutional scholars have dismissed the idea that the Second Amendment protects an individual right to arms. They argue that it only prevents the federal government from disarming states. Other scholars, focusing on the language of the amendment and its historical context, conclude that it does indeed establish an individual right to firearms. This article examines whether, even absent the Second Amendment, the Constitution restrains government from taking away what may be individuals' best tools of self-defense. The foothold …

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Lethal Fiction: The Meaning Of "Counsel" In The Sixth Amendment , Bruce A. Green Jan 1992

Lethal Fiction: The Meaning Of "Counsel" In The Sixth Amendment , Bruce A. Green

Faculty Scholarship

Charles Bell, Donald Paradis, and Shirley Tyler were tried in different states for murder. Each was convicted and sentenced to death. Charles Bell was represented at trial by a recent law school graduate who had never before tried a criminal case to completion. Donald Paradis's lawyer had passed the bar exam six months earlier, had never previously represented a criminal accused, and had not elected courses in criminal law, criminal procedure, or trial advocacy while in law school. Shirley Tyler's trial lawyer was also a member of the bar for only a few months. He had defended one previous assault …

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Power Not Reason: Justice Marshall's Valedictory And The Fourth Amendment In The Supreme Court's 1990 Term , Bruce A. Green Jan 1991

Power Not Reason: Justice Marshall's Valedictory And The Fourth Amendment In The Supreme Court's 1990 Term , Bruce A. Green

Faculty Scholarship

In its 1990 Term, the United States Supreme Court heard five cases involving the Fourth Amendment. In this article, Professor Bruce Green analyzes these five search-and-seizure decisions in light of Justice Marshall's criticism that '[Plower, not reason, is the new currency of this Court's decision-making." He examines the various considerations the Court advances in its Fourth Amendment analysis-interpretive principle, policy, and precedent--and discovers inconsistencies in the importance assigned to each of these considerations in a series of cases decided very close together by virtually the same Justices. Each approach controlled, Professor Green argues, only when it could be said to …

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Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen Jan 1991

Impeachment Exception To The Exclusionary Rules: Policies, Principles, And Politics, The , James L. Kainen

Faculty Scholarship

The exclusionary evidence rules derived from the Fourth, Fifth, and Sixth Amendments continue to play an important role in constitutional criminal procedure, despite the intense controversy that surrounds them. The primary justification for these rules has shifted from an "imperative of judicial integrity" to the "deterrence of police conduct that violates... [constitutional] rights." Regardless of the justification it uses for the rules' existence, the Supreme Court continues to limit their breadth "at the margin," when "the acknowledged costs to other values vital to a rational system of criminal justice" outweigh the deterrent effects of exclusion. The most notable limitation on …

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Hare And Hounds: The Fugitive Defendant's Constitutional Right To Be Pursued, Bruce A. Green Jan 1991

Hare And Hounds: The Fugitive Defendant's Constitutional Right To Be Pursued, Bruce A. Green

Faculty Scholarship

No abstract provided.

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Wanted: A Federal Standard For Evaluationg The Adequate State Forum , Maria Marcus Jan 1991

Wanted: A Federal Standard For Evaluationg The Adequate State Forum , Maria Marcus

Faculty Scholarship

This Article argues that the federal judiciary should upgrade its present scrutiny of state forum adequacy in conformity with constitutional and congressional directives. Fortunately, a standard for such heightened scrutiny already exists in the Supreme Court's own jurisprudence.

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Can Punitive Damages Withstand A Due Process Challenge After Bankers Life & Casualty Co. V. Crenshaw And Browning-Ferris Industries Of Vermont V. Kelco Disposal?, Sanjit S. Shah Jan 1990

Can Punitive Damages Withstand A Due Process Challenge After Bankers Life & Casualty Co. V. Crenshaw And Browning-Ferris Industries Of Vermont V. Kelco Disposal?, Sanjit S. Shah

Fordham Urban Law Journal

This Note will consider whether punitive damages can withstand a constitutional challenge brought under the Due Process Clause of the fourteenth amendment. Part II of the Note examines how courts have resolved procedural due process and traditional vagueness challenges to exemplary damage awards. This section also discusses Justice O'Connor's approach to the vagueness doctrine, and the possibility that substantive due process may affect jury discretion to award punitive damages. Part III discusses why punitive damages do not violate the Due Process Clause. This Note concludes that punitive damages are not unconstitutional on procedural due process, fundamental fairness, or traditional vagueness …

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The Yonkers Case: Separation Of Powers As A Yardstick For Determining Official Immunity, Amy Walsh Jan 1989

The Yonkers Case: Separation Of Powers As A Yardstick For Determining Official Immunity, Amy Walsh

Fordham Urban Law Journal

The author examines the application of the official immunity doctrine to a situation where a federal district court issued contempt citations to local legislators in Yonkers who refused to pass legislation as required by a consent decree. The author argues that the function test for official immunity is by its very nature conclusory, and thus courts, in close cases, should use a separation of powers analysis to inform their application of the function test. Courts should deploy this separation of powers analysis by finding that where an official act was based on a mixture of powers, a rebuttable presumption should …

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Dna Fingerprinting And The Need For A National Data Base, Joann Marie Longobardi Jan 1989

Dna Fingerprinting And The Need For A National Data Base, Joann Marie Longobardi

Fordham Urban Law Journal

DNA fingerprinting, at the time of publication a new concept, has dramatic implications in both the civil and criminal contexts. The author argues that a national DNA data base should be created. He contends that a DNA data base would be a powerful tool for law enforcement as well as defense attorneys, and that the danger to privacy rights is outweighed by the benefits to society. The author argues that taking DNA is neither invasive nor does it provide substantive information to the authorities. In sum, the author states that a national DNA data base with sufficient safeguards should be …

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Reconstructing The Takings Doctrine By Redefining Property And Sovereignty, John Martinez Jan 1988

Reconstructing The Takings Doctrine By Redefining Property And Sovereignty, John Martinez

Fordham Urban Law Journal

In 1987, the Supreme Court decided three cases involving "takings" challenges to governmental exercise of the power to control land use. This trilogy of cases affirmed the continuing validity of a three-part analytical model in addressing the takings problem: (1) is private property involved; (2) has governmental action so affected it as to require a remedy; and (3) what remedy should be provided? This Article critically examines that model and argues that the first two questions are fundamentally indistinguishable and that to treat them as distinct inquiries is unworkable. The Article then proposes a functional approach under which individuals are …

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Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski Jan 1988

Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski

Faculty Scholarship

The purpose of this Comment is to examine the history of the enactment and early enforcement of the Civil Rights Act of 1866 from the perspective of the remedies Congress sought to provide to meet the problems that necessitated the legislation. Its main foci are the statute's enforcement provisions and their early implementation, an aspect of the history of the statute that has not been fully considered in relation to section one, the provision that has received the most scholarly attention. The occasion of this study is the Supreme Court's reconsideration of Runyon v. McCrary' in Patterson v. McLean Credit …

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"Five-Hundred-Year Flood Plains" And Other Unconstitutional Challenges To The Establishment Of Community Residences For The Mentally Disabled, Robert L. Schonfeld Jan 1988

"Five-Hundred-Year Flood Plains" And Other Unconstitutional Challenges To The Establishment Of Community Residences For The Mentally Disabled, Robert L. Schonfeld

Fordham Urban Law Journal

This article examines the impact of state statutes and local ordinances on the establishment of community residences for the mentally disabled. While some states have policies advocating for community residences, these policies are often undermined by barriers such as neighborhood opposition and statutes and ordinances that impede development. The author analyzes the application of the equal protection clause to statutes and ordinances affecting the mental disabled, ultimately concluding that many are unconstitutional. Finally, the author discusses the impact of City of Cleburne v. Cleburne Living Center on state statutes and local ordinances that limit the establishment of community residences. The …

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"Wrong But Reasonable": The Fourth Amendment Particularity Requirement After United States V. Leon, Martha Applebaum Jan 1987

"Wrong But Reasonable": The Fourth Amendment Particularity Requirement After United States V. Leon, Martha Applebaum

Fordham Urban Law Journal

This Note analyzes the application of the good-faith exception to search warrant particularity violations under the Fourth Amendment. The question compelled by United States v. Leon and Massachusetts v. Sheppard is when, if ever, a particularity-defective warrant will sustain an officer's "reasonable reliance.'' The Note briefly discusses how "particularity" traditionally has been assessed under the fourth amendment. The author examines the Supreme Court's holding in Massachusetts v. Sheppard, and contrasts several circuit court cases that have applied Sheppard's "objectively reasonable" standard of good faith to warrants involving particularity defects. Finally, the Note concludes that the approach taken by the Second …

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Private Clubs And Employment Discrimination: Does Federal Law Apply?, Elyse Hilton Jan 1987

Private Clubs And Employment Discrimination: Does Federal Law Apply?, Elyse Hilton

Fordham Urban Law Journal

This Note examines the general history and function of Title VII and section 1981 of the civil rights law. The author discusses the problems inherent in defining an organization as a private club, for purposes of employment non-discrimination efforts. The Note examines statutory construction and legislative history, as well as case law to assess arguments as to whether Title VII impliedly amends section 1981 with respect to the private club exemption. The author argues that membership discrimination cases in the case law differ radically from employment discrimination cases, which address entirely different sets of rights. The argument concludes therefore that …

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A Proposal To Use A "Knowing And Voluntary" Standard To Evaluate The "Voluntariness" Of Early Retirement Incentives, Lisa E. Meyer Jan 1987

A Proposal To Use A "Knowing And Voluntary" Standard To Evaluate The "Voluntariness" Of Early Retirement Incentives, Lisa E. Meyer

Fordham Urban Law Journal

The Note argues that a standard is needed to judge the "voluntariness" of early retirement incentives under the Age Discrimination in Employment Act. It examines the need for clear guidelines to evaluate the voluntariness of early retirement incentives in light of their increasing use in a society that is growing older and retiring earlier. The author discusses the aims and prohibitions of ADEA, and the procedure by which plaintiffs can establish a prima facie case of age discrimination. The author proposes that the "knowing and voluntary" standard used to determine the validity of common law releases of duty serves as …

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New York's Impeachment Law And The Trial Of Governor Sulzer: A Case For Reform, John Dunne, Michael Balboni Jan 1987

New York's Impeachment Law And The Trial Of Governor Sulzer: A Case For Reform, John Dunne, Michael Balboni

Fordham Urban Law Journal

This article contains a historical overview of New York's impeachment law reaching back to the 18th century. It covers the 1913 impeachment case of New York Governor William Sulzer, and concludes that New York's impeachment law is unworkable because it does not contain adequate safeguards to protect against legislative abuse. This article criticizes New York impeachment law for its lack of transparency in enumerating impeachable offenses, and makes recommendations concerning amendments to the impeachment law.

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The Inadequate Police Protection Of Battered Wives: Can A City And Its Police Be Held Liable Under The Equal Protection Clause?, Jeffrey A. Shapiro Jan 1986

The Inadequate Police Protection Of Battered Wives: Can A City And Its Police Be Held Liable Under The Equal Protection Clause?, Jeffrey A. Shapiro

Fordham Urban Law Journal

The police strive to settle the vast majority of wife battering cases without arrest or through mediation, often leading to terrible results for the abused wife. This Note supports holding a city and its police liable under the equal protection clause for the inadequate police protection of battered wives. The Note finds the best legal strategy under the equal protection clause would involve showing impermissible gender-based discrimination.

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The Constitutional Party Right Of Informational Privacy: Does It Protect Children Suffering From Aids?, Gretta J. Heaney Jan 1986

The Constitutional Party Right Of Informational Privacy: Does It Protect Children Suffering From Aids?, Gretta J. Heaney

Fordham Urban Law Journal

The right to privacy and nondisclosure of personal medical information is at often odds with a State interest and the public's desire to be informed. This Note traces the constitutional right to privacy, discusses the extent to which personal medical information has been incorporated into that right and outlines the qualifications of these rights as they pertain to minors. In particular, this Note examines the constitutional right of States to release private medical information of an AIDS-inflicted child to the school officials at the school at the school the AIDS-inflicted child attends. The Note argues that when weighing the risks …

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Public School Drug Searches: Toward Redefining Fourth Amendment "Reasonableness" To Include Individualized Suspicion, Jill I. Braverman Jan 1986

Public School Drug Searches: Toward Redefining Fourth Amendment "Reasonableness" To Include Individualized Suspicion, Jill I. Braverman

Fordham Urban Law Journal

Incidents of illegal drug use' and violent crime plague public school authorities across the nation. As narcotics and weapons appear on school campuses, school officials seek to conduct searches of students' lockers, property, and persons for contraband or prohibited weapons. Public school authorities justify their actions by stating that since the state requires children to attend school, the state retains a compelling interest, if not an affirmative duty, in ensuring that the school environment remain free of illegal substances which might present safety hazards to teachers or fellow students. The fourth amendment to the United States Constitution was adopted to …

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Revolutionary Constitutionalism In The Era Of The Civil War And Reconstruction , Robert J. Kaczorowski Jan 1986

Revolutionary Constitutionalism In The Era Of The Civil War And Reconstruction , Robert J. Kaczorowski

Faculty Scholarship

The meaning and scope of the fourteenth amendment and the Civil Rights Act of 1866 remain among the most controversial issues in American constitutional law. Professor Kaczorowski contends that the issues have generated more controversy than they warrant, in part because scholars analyzing the legislative history of the amendment and statute have approached their task with preconceptions reflecting twentieth century legal concerns. He argues that the most important question for the framers was whether national or state governments possessed primary authority to determine and secure the status and rights of American citizens. Relying on records of the congressional debates as …

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Memorandum To Attorney General Edwin Meese Regarding Presidential Succession Under 3 U.S.C. § 19, Ralph W. Tarr, United States Department Of Justice. Office Of Legal Counsel. Aug 1985

Memorandum To Attorney General Edwin Meese Regarding Presidential Succession Under 3 U.S.C. § 19, Ralph W. Tarr, United States Department Of Justice. Office Of Legal Counsel.

Executive Branch Materials

U.S. Department of Justice Office of Legal Counsel memo on presidential succession under the Presidential Succession Act of 1947, codified at 3 U.S.C. § 19. Roy E. Brownell II provided this document.

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The Minneapolis Anti-Pornography Ordinance: A Valid Assertion Of Civil Rights?, Winifred Ann Sandler Jan 1985

The Minneapolis Anti-Pornography Ordinance: A Valid Assertion Of Civil Rights?, Winifred Ann Sandler

Fordham Urban Law Journal

The author of this student note examines a recent Minneapolis city ordinance that declares pornography to be both subordination of and a form of sex discrimination towards women. First Amendment proponents challenged the ordinance as unconstitutional. The author considers whether the state has a compelling interest in protecting its citizens from civil rights violations, and whether that interest can overcome first amendment rights. The author concludes that pornography is neither a civil rights violation, nor a category of unprotected speech.

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Stough V. Crenshaw Country Board Of Education: Parental Rights And Segregation Academies, Stuart Melnick Jan 1985

Stough V. Crenshaw Country Board Of Education: Parental Rights And Segregation Academies, Stuart Melnick

Fordham Urban Law Journal

The author of this student note explores a recent 11th Circuit decision in Strough v. Crenshaw Country Board of Education, which held that the state's proffered interests were not compelling, and therefore failed to override a fundamental right. In the case, a county school board forbid its employees from sending their children to private school, and the regulation was contested by two tenured teachers who sought to enroll their children in a private, racially segregated school. The court eventually found that a parent's right to educate their child was a fundamental right, and the policy reasons advanced by the school …

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A Unified Theory Of The First Amendment:, Mark S. Nadel Jan 1983

A Unified Theory Of The First Amendment:, Mark S. Nadel

Fordham Urban Law Journal

The Supreme Court presently permits reasonable regulation of access in the broadcasting media; it nevertheless allows print publishers to foreclose such access. Although this approach has been praised by some, and a doctrine can only survive if there is a clear distinction between the print and broadcast media. In today's rapidly developing communications industry, the distinction between these converging media is unstable and inadequate. The increasing significance of cable television in particular has created a pressing need to replace the fragile double standard with a unified, all encompassing theory. This Article proposes such a unified theory after first drawing the …

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Disenfranchisement Of The College Student Vote: When A Resident Is Not A Resident, Joseph A. Bollhofer Jan 1983

Disenfranchisement Of The College Student Vote: When A Resident Is Not A Resident, Joseph A. Bollhofer

Fordham Urban Law Journal

The standards used by state and local election officials to determine whether students may vote as residents of the communities in which they attend college vary significantly among the fifty states. Two fundamental rights conflict in determining whether college students should be entitled to vote as residents of their college communities: the right of students to equal protection of the laws and eh right of states to limit the right to vote to bona fide residents. This Comment demonstrates the need for the education of election officials and college students in the common law principles of domicile. Moreover, it will …

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