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Articles 421 - 450 of 460

Full-Text Articles in Constitutional Law

The Rights Of Probationary Federal Employee Whistleblowers Since The Enactment Of The Civil Service Reform Act Of 1978, Benjamin C. Indig Jan 1983

The Rights Of Probationary Federal Employee Whistleblowers Since The Enactment Of The Civil Service Reform Act Of 1978, Benjamin C. Indig

Fordham Urban Law Journal

This Comment focuses on the rights, since the passage of the Civil Service Reform Act of 1978 (CSRA), of the probationary employee who exposes fraud and mismanagement in the federal government. It reviews the rights granted by the CSRA, as well as non-CSRA rights granted under the Privacy Act, and under the first and fifth amendments of the Constitution, including the right to sue one's supervisor in a Bivens action. Non-CSRA rights are particularly important to the whistleblower who is a probationer. The Comment concludes that the CSRA does encourage probationers, to an extent, to expose fraud and wrongdoing in …

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A Survey Of Constitutional Challenges To Municipal Regulation Of Religious Solicitation And A Suggested Legislative Compromise, Audrey Peltz Jan 1983

A Survey Of Constitutional Challenges To Municipal Regulation Of Religious Solicitation And A Suggested Legislative Compromise, Audrey Peltz

Fordham Urban Law Journal

Solicitation can often be a source of annoyance to the general public. Therefore, municipalities have passed a variety of ordinances to regulate solicitation. However, solicitation encompasses various forms of speech interests. For this reason, ordinances have given rise to massive litigation, involving challenges under the First and Fourteenth Amendment, particularly for religious solicitation. The recent increases in challenges to municipal regulation of religious solicitation indicates a need for legislation which will survive judicial scrutiny. This Comment details the legislative and judicial history of religious solicitation, and provides a model ordinance by which municipalities can regulate religious solicitation to afford maximum …

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Systematic Exclusion Of Cognizable Groups By Use Of Peremptory Challenges, Stephen W. Dicker Jan 1983

Systematic Exclusion Of Cognizable Groups By Use Of Peremptory Challenges, Stephen W. Dicker

Fordham Urban Law Journal

An integral part of the jury selection process is the individual challenge, where a party has the privilege to remove potentially biased jurors. There are two forms of the individual challenge: for cause and peremptory. For cause challenges must be based on a legally provable bias, whereas peremptory challenges may be used to remove jurors who possess a bias peculiar to the immediate case, but whose bias is not articulable in terms of a challenge for cause. Given the vague underpinnings and potential abuses of the peremptory challenge, legislatures enforce a limitation on the number of such challenges a party …

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The Effective Assistance Of Counsel: Chance Or Guarantee?, Joanne Legano Jan 1983

The Effective Assistance Of Counsel: Chance Or Guarantee?, Joanne Legano

Fordham Urban Law Journal

This Comment reviews the historical development of the right to effective assistance of counsel for criminal defendants as defined by the Supreme Court, and discusses the various standards applied by lower federal courts. This Comment next examines United States v. Decoster, which provides the most comprehensive judicial analysis of the right to effective assistance of counsel at this juncture in time. The standards applied by the New York State courts are also analyzed. Finally, the author recommends uniform guidelines for evaluating claims of ineffective assistance of counsel.

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First Amendment Challenges To Landmark Preservation Statutes, Stephen M. Watson Jan 1983

First Amendment Challenges To Landmark Preservation Statutes, Stephen M. Watson

Fordham Urban Law Journal

The Interfaith Commission, religious leaders deeply concerned with the problems associated with the landmarking of religious properties, have recognized that the prohibition against demolition or alteration of landmarked religious properties effectively destroys their value. Additionally, the religious organizations are required to expend thousands of dollars of religious contributions to maintain these landmarks for the public benefit, in accordance with the regulations of the Landmarks Commission. This Comment focuses on the constitutionality of landmark preservation statutes as applied to religious properties. Using New York City as a model, this Comment examines the myriad problems presented by the landmarking of religious properties. …

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Accomodation Of Reputational Interests And Free Press: A Call For A Strict Interpretation Of Gertz, Tom Wall Jan 1983

Accomodation Of Reputational Interests And Free Press: A Call For A Strict Interpretation Of Gertz, Tom Wall

Fordham Urban Law Journal

New York Times Co. v. Sullivan provides that states may award damages in defamation actions brought by public officials against media critics of their official conduct only if the plaintiff proves that the defendant acted with "actual malice." Subsequently, the Supreme Court extended this rule to public figures and promulgated standards for identifying public figures. The Court declared unconstitutional the common law standard of strict liability in actions brought by private individuals. Establishing negligence as a constitutional minimum, the Court delegated to the states the responsibility for formulating the proper standard of fault in actions brought by private individuals. This …

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State Prohibitions On Employment Opportunities For Resident Aliens: Legislative Recommendations , Joy B. Peltz Jan 1982

State Prohibitions On Employment Opportunities For Resident Aliens: Legislative Recommendations , Joy B. Peltz

Fordham Urban Law Journal

Resident aliens in the United States are afforded important privileges, such as residing in the United States indefinitely, and seeking employment here. Nevertheless, resident aliens are denied certain job opportunities in states that require United States citizenship as a prerequisite to public employment, or professional or occupational licenses. The Constitutionality of this exclusion has been challenged on equal protection grounds, most recently, by the Supreme Court in Cabell v. Chavez-Salido. In this case, the Court upheld the constitutionality of a California statute, restricting a deputy probation officer position to United States citizens. This case has been hailed as precedent for …

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Beyond The Taking Issue: Emerging Procedural Due Process Issues In Local Landmark Preservation Programs, Samuel A. Turvey Jan 1982

Beyond The Taking Issue: Emerging Procedural Due Process Issues In Local Landmark Preservation Programs, Samuel A. Turvey

Fordham Urban Law Journal

In Penn Central Transportation Co. v. New York City, the United States Supreme Court accorded landmark preservation full legal status. This decision left unanswered questions, one of which is the procedural due process requirements for local designation proceedings. In Historic Green Springs, Inc. v. Bergland, a U.S. District Court set aside a designation as a violation of procedural due process. This comment examines the impact of the Historic Green Springs decision, and focuses on the administration of the New York City landmarks law specifically. The comment argues that ordinances such as New York's are inadequate, and concludes that municipal bodies …

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Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen Jan 1982

Nineteenth Century Interpretations Of The Federal Contract Clause: The Transformation From Vested To Substantive Rights Against The State , James L. Kainen

Faculty Scholarship

During the early nineteenth century, the contract clause served as the fundamental source of federally protected rights against the state. Yet the Supreme Court gradually eased many of the restrictions on state power enforced in the contract clause cases while developing the doctrine of substantive due process after the Civil War. By the end of the nineteenth century, the due process clause had usurped the place of the contract clause as the centerpiece in litigation about individual rights. Most analyses of the history of federally protected rights against the state have emphasized the rise of substantive due process to the …

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Governmental Misconduct And The Right Of Liberty, Michael A. Vaccari Jan 1981

Governmental Misconduct And The Right Of Liberty, Michael A. Vaccari

Fordham Urban Law Journal

The due process clauses of the fifth and fourth amendments to the United States Constitution protect individuals from arbitrary and capricious government action. This article explores the violation of a criminal defendant's right to liberty when a conviction is the result of unreasonable law enforcement misconduct. The article examines the limitations placed on the actions of government officials contained in the fourth and fifth amendments and the defense of entrapment. It also offers an analysis of the nature and scope of the due process right of liberty, through a philosophical lens. This article finally posits the legal basis for recognizing …

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The Application Of New York's Driving While Intoxicated Statute, Elizabeth Gross Jan 1980

The Application Of New York's Driving While Intoxicated Statute, Elizabeth Gross

Fordham Urban Law Journal

This Note analyzes the constitutional issues raised by section 1192 of New York State's Vehicle and Traffic Law. The argument it addresses is that the statute is unconstitutionally vague as it does not define the words "impaired" and "intoxicated." The lack of definition is especially keen where, because of the absence of chemical tests, the courts must decide intoxication cases on objective criteria. The Note then sets forth the major elements necessary for a conviction under the statute with the purpose of clarifying the distinction between intoxication and impairment.

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The Essential Governmental Function After National League Of Cities: Impact Of An Essentiality Test On Commuter Rail Transportation , Sharon A. Souther Jan 1980

The Essential Governmental Function After National League Of Cities: Impact Of An Essentiality Test On Commuter Rail Transportation , Sharon A. Souther

Fordham Urban Law Journal

The Supreme Court of the United States held in National League of Cities v. Usery that Congress had exceeded its powers under the commerce clause by enacting the 1974 amendment to the Fair Labor Standards Act. The reasoning behind the decision was that Congress was prohibited from using the commerce clause in areas which states were considered to be performing an essential government function. Because the Supreme Court did not explain precisely what is considered an essential government function, courts have been forced to make case-by-case determinations in deciding these types of cases. One area were these issues are brought …

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Warrantless Container Searches Under The Automobile And Search Incident Exceptions, Jody Cosgrove Jan 1980

Warrantless Container Searches Under The Automobile And Search Incident Exceptions, Jody Cosgrove

Fordham Urban Law Journal

Warrantless searches of containers had historically been sustained under the exceptions to the fourth amendment protections developed for cases where exigent circumstances require immediate action. The Supreme Court of the United States then limited warantless container searches in United States v. Chadwick and Arkansas v. Sanders but these limitations were subject to various interpretations by the lower courts. This Note examines the various interpretations of these conflicts and their areas of conflict. It then argues for a strict interpretation of the Supreme Court limitations which is more consistent with the traditional exceptions to the fourth amendment's protections against unreasonable searches …

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Regulation Of Advertising And Promotional Pracitces Of Public Utilities Under The First Amendment, Thomas G. Carulli Jan 1980

Regulation Of Advertising And Promotional Pracitces Of Public Utilities Under The First Amendment, Thomas G. Carulli

Fordham Urban Law Journal

This Note examines the first amendment right of public utility corporations in light of the recent restrictions imposed on how these corporations communicate with their subscribers and the public in general. Specifically, this Note will focus "on the regulations promulgated by the New York Public Service Commission which prohibited the use of bill inserts on controversial matters of public policy and banned all promotional advertising by public utility corporations."

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The Mortgage Subsidy Bond Tax Act Of 1979: An Unwarranted Attack On State Sovereignty, John J. Keohane Jan 1980

The Mortgage Subsidy Bond Tax Act Of 1979: An Unwarranted Attack On State Sovereignty, John J. Keohane

Fordham Urban Law Journal

This Article examines the constitutionality of repealing the tax exempt status of interest accrued on bonds issued by states and municipalities. It concludes that repealing this tax exemption is unconstitutional, as it would encroach on state's sovereignty inherently protected by the constitution.

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National League Of Cities And The Parker Doctrine: The Status Of State Sovereignty Under The Commerce Clause, Stephen G. Rooney Jan 1980

National League Of Cities And The Parker Doctrine: The Status Of State Sovereignty Under The Commerce Clause, Stephen G. Rooney

Fordham Urban Law Journal

This comment aims to convey a clear definition of the Supreme Court's views on federalism and state sovereignty. It argues that the Court has recently used antitrust cases and doctrines to establish state sovereignty as a limit to federal commerce power. This comment looks to both the doctrine created by the U.S. Supreme Court in the antitrust case Parker v. Brown and the Court's decision in National League of Cities v. Usery to clarify the role of state sovereignty in the face federal commerce power. It compares these two views of state sovereignty in order to develop a better understanding …

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The Constitutionality Of Public School Financing Laws: Judicial And Legislative Interaction, Bruce Gitlin Jan 1980

The Constitutionality Of Public School Financing Laws: Judicial And Legislative Interaction, Bruce Gitlin

Fordham Urban Law Journal

This Note looks at the various ways states fund public education. Then the Note examines the how the U.S. Supreme Court's decision of Board of Education v. Nyquist impacts how states fund public education. Finally, the Note argues that the U.S. Supreme Court should expand, rather than contract, the options available for states to fund public education.

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Selective Use Of The Executive Immunity Power: A Denial Of Due Process?, Howard Schwartz Jan 1980

Selective Use Of The Executive Immunity Power: A Denial Of Due Process?, Howard Schwartz

Fordham Urban Law Journal

Attacks on the government's power to grant immunity to cooperative witnesses have been premised on several grounds, including the due process clause of the fifth amendment. It is upon this clause that the United States District Court of the Southern District of New York based a decision that a defendant was denied due process when the government refused to immunize him after granting immunization to its own witnesses. This article examines traditional arguments against challenging a prosecutor's immunity discretion, the procedural and substantive factors necessary in substantiating a defendant's due process claim, and the effect of immunization on the government's …

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A Functional Analysis Of The Effective Assistance Of Counsel, A Note, Bruce A. Green Jan 1980

A Functional Analysis Of The Effective Assistance Of Counsel, A Note, Bruce A. Green

Faculty Scholarship

The sixth amendment provides that in all criminal prosecutions the accused shall enjoy the right "to have the Assistance of Counsel for his defence." The Supreme Court has construed this clause to guarantee to criminal defendants the "effective" assistance of counsel performing within a minimum standard of competency. Prevalent lower court interpretations of the right. to effective assistance require a showing that counsel's inadequate performance caused actual prejudice to the defendant's interest in obtaining an acquittal. Because most defendants are unable to demonstrate the actual impact upon the outcome of their trial of an attorney's departure from normal competency, courts …

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Administrative Agencies And The Rites Of Due Process: Alternatives To Excessive Litigation, Daniel Lee Feldman Jan 1979

Administrative Agencies And The Rites Of Due Process: Alternatives To Excessive Litigation, Daniel Lee Feldman

Fordham Urban Law Journal

With the growth of courtroom litigation, it has become necessary for congress to look to administrative agencies to act in an adjudicative nature. In expanding the role of administrative agencies for efficiency and economic concerns, it is particularly important to still consider the due process rights of citizens. This article addresses the need to balance the procedural due process rights of individuals with the use of administrative agencies to eliminate or at the very least reduce excessive litigation.

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Should The Capital Vote In Congress? A Critical Analysis Of The Proposed D.C. Representation Amendment , U.S. Senator Orrin G. Hatch Jan 1978

Should The Capital Vote In Congress? A Critical Analysis Of The Proposed D.C. Representation Amendment , U.S. Senator Orrin G. Hatch

Fordham Urban Law Journal

This article describes H.J. Res. 554, the proposed Amendment to obtain voting representation for D.C. It gives a historical overview of the District and its efforts to gain national representation, and presents a critical analysis of the case for District representation, including a summary of the arguments made in favor of the proposed amendment, as well as the constitutional and policy objections to the D.C. Amendment. The article concludes that proponents of the amendment conflate representation of the citizens of the District with representation of the District, and overlook its place as a neutral seat of government.

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Accountability Versus Privacy: The Plight Of Institutionalized Emotionally Disturbed Children, Katherine M. Lordi Jan 1977

Accountability Versus Privacy: The Plight Of Institutionalized Emotionally Disturbed Children, Katherine M. Lordi

Fordham Urban Law Journal

This article examines the an individual's right to privacy in relation to the state's interest in a smoothly-functioning system of mental health care for minors and concludes with some general guidelines for institutional accountability. The articles states that in order to balance the right of an institutionalized patient to be free from unwarranted invasions of privacy with the public's demand for transparency and accountability, two tasks must be confronted: (1) the limits of institutional and managerial accountability must be defined; and (2) the public's need to know must be balanced with a respect for the patient's personal privacy and material …

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Constitutional Law - Commercial Speech - Municipal Ordinance Which Prohibits The Display Of "For Sale" And "Sold" Signs On Residential Property In Order To Prevent Panic Selling Is Constitutional, Mary M. Popper Jan 1977

Constitutional Law - Commercial Speech - Municipal Ordinance Which Prohibits The Display Of "For Sale" And "Sold" Signs On Residential Property In Order To Prevent Panic Selling Is Constitutional, Mary M. Popper

Fordham Urban Law Journal

This case note examines the United States Third Circuit Court of Appeals' decision in Linmark Associates, Inc. v. Township of Willingboro, 535 F.2d 786 (3d Cir.), cert. granted, 97 S. Ct. 351 (1976), upholding the constitutionality of an ordinance prohibiting the display of "for sale" and "sold" signs on residential property. The Third Circuit held that the signs were primarily commercial speech and since neither message contained comment on social policy, political protest, or similar elements of pure speech, the governmental interests forwarded by the ordinance sufficiently outweighed any infringement on first amendment rights. The case note finds that in …

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Book Review: The Law Of Obscenity, Edward J. Berbusse, S.J. Jan 1977

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 …

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Towards A Constitutional Right To Counsel In Matrimonial Litigation, Gary R. Matano Jan 1976

Towards A Constitutional Right To Counsel In Matrimonial Litigation, Gary R. Matano

Fordham Urban Law Journal

The marriage institution is the basic unit in the anatomical composition of American society as it exists today. The right to marry and the right to divorce when marriage fails have long been held in the highest esteem by our nation's courts. But some citizens of the State of New York are judicially denied the right to terminate their marriages because they are indigents. The court has denied indigents their requested assignments of counsel when the assistance of counsel was unquestionably necessary for prospective matrimonial litigants. The first problem posed by that holding is that it operates as a virtual …

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Restoring The Balance: The Second Amendment Revisited, David I. Caplan Jan 1976

Restoring The Balance: The Second Amendment Revisited, David I. Caplan

Fordham Urban Law Journal

In this article, the Second Amendment is analyzed through a discussion of the history of the right to private arms under English common law, the Second Amendment's legislative history and context, and the United States Supreme Court's decision in United States v. Miller. The articles argues that the private right of keeping arms plays a fundamental role in the constitutional system of checks and balances and that the Second Amendment supports the twin goals of individual and collective defense against violence and aggression. The article concludes that efforts to limit firearms possession to the organized militia undermines these twin goals …

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Constitutional Law - Zoning Referenda - Mandatory Referenda On All Municipal Land Use Changes Do Not Violate The Due Process Clause, Beatrice Close Jan 1976

Constitutional Law - Zoning Referenda - Mandatory Referenda On All Municipal Land Use Changes Do Not Violate The Due Process Clause, Beatrice Close

Fordham Urban Law Journal

This case note discusses the United States Supreme Court's decision in City of Eastlake v. Forest City Enterprises, Inc., 96 S. Ct. 2358 (1976), which held that a state's decision to allow mandatory referendums on all municipal land use changes does not violate the due process clause. The case note examines the line of cases, such as Eubanks v. Richmond, 226 U.S. 137 (1912) and Washington ex rel. Seattle Trust Co. v. Roberge, 278 U.S. 116 (1928), that establish the principle that standardless delegations of power to impose restrictions on the property rights of others violated the due process clause …

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Infants - Foster Families - Remove Of Foster Children From Foster Homes Without A Prior Hearing Violates Their Constitutional Rights To Procedural Due Process, Andrea G. Iason Jan 1976

Infants - Foster Families - Remove Of Foster Children From Foster Homes Without A Prior Hearing Violates Their Constitutional Rights To Procedural Due Process, Andrea G. Iason

Fordham Urban Law Journal

This case note examines the decision of the United States District Court for the Southern District of New York in Organization of Foster Familines for Equality and Reform v. Dumpson, 418 F. Supp. 277 (S.D.N.Y. 1976), which held that the removal of foster children from foster homes in which they had been living for more than one year, without a prior hearing, violated their constitutional rights to procedural due process. The court reaffirmed the concept that a child is a person under the fourteenth amendment with protected interests, such as the preference to live in a certain home, and that …

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Unwed Fathers - Adoption - Foster Care Agency Seeking Permission To Consent To Child's Adoption Need Not Always Grant Child's Unwed Father Notice And Opportunity To Be Heard, Michael A. Vaccari Jan 1976

Unwed Fathers - Adoption - Foster Care Agency Seeking Permission To Consent To Child's Adoption Need Not Always Grant Child's Unwed Father Notice And Opportunity To Be Heard, Michael A. Vaccari

Fordham Urban Law Journal

This case note examines the family court's decision in In re Kenneth M., 87 Misc. 2d 295, 383 N.Y.S.2d 1005 (Family Ct. 1976) where the unwed father received neither notice of the pending adoption proceeding nor an opportunity to be heard concerning his child's best interest. The case note discusses the changes in the law as to unwed fathers, through the United States Supreme Court's decision in Stanley v. Illinois, 405 U.S. 645 (1972), holding that all parents were entitled to a hearing on their fitness before their children are removed from their custody and calling for an individualized approach. …

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Comment: Desegregation -- The Times They Are A-Changin', Larry M. Storm Jan 1975

Comment: Desegregation -- The Times They Are A-Changin', Larry M. Storm

Fordham Urban Law Journal

Courts are currently concerned over the extent of their powers to integrate racially separate housing and schools within metropolitan areas containing black inner cities and white suburbs. This Comment reviews the jurisprudence addressing when it is a proper exercise of a court's equity jurisdiction to fashion a metropolitan or interdistrict remedial order in which the city and its surrounding suburbs are treated as one system. The Comment focuses on the recent Supreme Court decision in Milliken v. Bradley, in which the Court reversed a decision of the Sixth Circuit Court of Appeals which upheld the district court's power to order …

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