Constitutional Law Commons^™

Miranda And The State Constitution: State Courts Take A Stand, Mary A. Crossley

Vanderbilt Law Review

This Note examines how state courts have interpreted state constitutional guarantees of the privilege against self-incrimination independently of the Supreme Court's construction of the fifth amendment. Part II focuses on the historical and theoretical underpinnings of state constitutional law and examines state courts'renewed reliance on their state constitutions. Part III discusses the Supreme Court's interpretation of the fifth amendment in Miranda and its progeny. Part IV presents the states' response to Supreme Court holdings and surveys state court decisions interpreting state constitutions' self-incrimination provisions more broadly than the fifth amendment. Finally, Part V examines the potential for further growth in …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

RELIGIOUS ORGANIZATIONS AND MEMBERS OF CLERGY OF VARIOUS DENOMINATIONS LACK STANDING TO CHALLENGE ADOPTION AND IMPLEMENTATION OF DIPLOMATIC RELATIONS WITH THE VATICAN

--Americans United for Separation of Church and State v. Reagan, 786 F.2d 194 (3d Cir.1986)

===========

EVEN THOUGH PROCEEDINGS IN THE FOREIGN FORUM MAY TAKE MORE TIME AND MAY YIELD A SMALLER RECOVERY THAN PROCEEDING IN THE UNITED STATES FORUM, THE FOREIGN FORUM MAY BE CONSIDERED AN ADEQUATE FORUM FOR THE PURPOSES OF THE FORRUM NON CONVENIENS DOCTRINE

--De Melo v. Lederle Laboratories, 801 F.2d 1058 (8th Cir. 1986)

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

ASSERTION OF PERSONAL JURISDICTION IN CALIFORNIA OVER AN …

The Constitutionality Of Statutes Of Repose: Federalism Reigns, Josephine H. Hicks

Vanderbilt Law Review

The development of common-law tort liability, especially since the late 1950s and early 1960s, has broken many of the barriers to plaintiff recovery. The abrogation of the privity requirement, the evolution of the discovery rule, and the advent of strict liability were primary agents in this "assault upon the citadel."' These developments have threatened many potential tort defendants, particularly members of the manufacturing and construction industries and the medical profession. In response to lobbying pressure from these groups, many state legislatures have adopted measures to limit tort recoveries. One of the measures most popular among defendants has been the enactment …

Political Refugees, Nonrefoulement And State Practice: A Comparative Study, Robert C. Sexton

Vanderbilt Journal of Transnational Law

This Article will survey and assess the attempts of five of the major refugee receiving countries of the West, the United States, Canada, Great Britain, France, and Italy, to comply with the mandates of the Convention and Protocol. Specifically, inquiry will focus on the two issues most applicable to the admission and exclusion of political refugees: (1) domestic interpretation of the Convention definition of "refugee;" and (2) adherence to the principle of nonrefoulement, which is the Convention's proscription on returning persons falling within its refugee definition to countries of alleged persecution.

Section II explores the precise substantive provisions of the …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

Quaderni Di Scienze Criminali: The Penal Protection of Works of Art. Edited by the International Institute of Higher Studies in Criminal Sciences. Siracusa, Italy: The International Institute of Higher Studies in Criminal Sciences, 1983. Pp. 447.

Japanese Business Law and the Legal System. By Elliott J. Hahn. Westport, Connecticut and London, England: Quorum Books, 1984. Pp. vii, 168. $35.00.

The Exchange Rate System: Lessons of the Past and Options for the Future. Edited by Ellas H. Wright. Washington, D.C.: International Monetary Fund, 1984. Pp. vii, 55. $7.50.

The International Maritime Organization. Edited by Samie Mandrabody. London: Croom Helm Ltd., 1984. …

Recent Decisions, Jonathan F. Mack, Jesse T. Wilkins, Joseph A. Dijulio

Vanderbilt Journal of Transnational Law

Constitutional Law--Grandfather Clause in International Emergency Economic Powers Act Permits the President to Ban Travel to Cuba without Declaring an Emergency Regan v. Wald, 104 S. Ct. 3026 (1984)

Jurisdiction--Bank may not Assert Act of State Doctrine as Defense in Action on Certificate of Deposit Garcia v. Chase Manhattan Bank, N.A., 735 F.2d 645 (2d Cir. 1984).

Jurisdiction--Commercial Activity as Applied to the Foreign Sovereign Immunities Act and the Act of State Doctrine Braka v. Bancomer, S.A., 589 F. Supp. 1465 (S.D.N.Y. 1984)

Constitutional Limitations On State Taxation Of Corporate Income From Multinational Corporations, Paul J. Hartman

Vanderbilt Law Review

This Article explores the Supreme Court's treatment, leading up to and including the Container decision, of state taxation of corporate income from multinational operations. Part II highlights the Court's development, prior to 1982, of the basic principles of federal limitations on the states' taxing powers that guided its decision in Container. Part III takes a more detailed look at two 1982 Supreme Court cases, ASARCO, Inc. v. Idaho State Tax Commission and F.W. Woolworth Co. v. Taxation and Revenue Department, in which the states suffered a setback in their efforts to extend the reach of their taxing powers over income …

Books Received, Law Review Staff

Vanderbilt Journal of Transnational Law

CIVIL JUDGMENT RECOGNITION AND THE INTEGRATION OF MULTIPLE STATE ASSOCIATIONS: CENTRAL AMERICA, THE UNITED STATES OF AMERICA, AND THE EUROPEAN ECONOMIC COMMUNITY

By Robert C. Casad

Lawrence: The Regents Press of Kansas, 1981. Pp. 258.$25.00.

==========

COMPARATIVE LAW YEARBOOK

VOL. 4, 1980

Edited by Dennis Campbell

The Hague/Boston/London: Martinus Nijhoff Publishers, 1981. Pp. 371.

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

CONSTITUTION-MAKING: PRINCIPLES, PROCESS, PRACTICE

By Edward McWhinney

Toronto: University of Toronto Press, 1981.Pp. 231. $20.00.

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

THE ENVIRONMENTAL LAW OF THE SEA

Edited by Douglas M.Johnston

Gland, Switzerland: International Union for Conservation of Nature and Natural Resources, 1981. Pp. 419.

===========

INTERNATIONAL BUSINESS: ENVIRONMENTS AND …

The Constitutionality Of The Foreign Intelligence Surveillance Act Of 1978, Judith B. Anderson

Vanderbilt Journal of Transnational Law

Within its more limited scope, the Belfield decision provides a helpful approach to FISA cases by articulating both a solid rationale for FISA's in camera, ex parte provision and a workable balancing approach for determining whether open proceedings may be necessary. The Falvey decision, although broader in scope, does not provide a satisfactory rationale for FISA's deviation from the traditional fourth amendment warrant requirement, nor does it articulate a workable approach to evaluating a FISA-warranted surveillance. The Falvey court, by predicating its upholding of FISA on an acceptance of the national security exception, may perpetuate a debate that the statute …

Legal Research In The Federal Republic Of Germany: A Concise Presentation Of Basic Publications, Ralph Lansky

Vanderbilt Journal of Transnational Law

This Article provides information about legal literature and research in the Federal Republic of Germany. Twenty-four basic works are reviewed, including a dozen important law books and legal periodicals and a dozen legal bibliographies that help to locate additional legal information. In addition, a few other publications are briefly discussed. This Article addresses the use of selective legal materials and as a result is very basic. Its objective is to introduce the novice to German legal literature.

Most of the books concern the law of the Federal Republic of Germany. A few that are published in that country cover comparative …

Punishment And Juvenile Justice: A Conceptual Framework For Assessing Constitutional Rights Of Youthful Offenders, Martin R. Gardner

Vanderbilt Law Review

This Article attempts to provide an analytical framework for identifying the punitive aspects of the juvenile justice system. The Article proposes a framework that is extrapolated from Supreme Court cases which define punishment in contexts outside the juvenile area. Several commentators have criticized the Court's definitional efforts, some because of perceived inadequacies in the developed definitions, others because of the belief that the very enterprise of defining constitutional rights in terms of the presence or absence of punishment is misguided . Although many of these criticisms of the Court's record are understandable, the alleged defects are less detrimental to an …

Constitutional Limitations On Governmental Participation In Downtown Development Projects, David M. Lawrence

Vanderbilt Law Review

The purpose of this Article is to investigate the constitutional boundaries that surround the most common forms of governmental participation. Part II of the Article discusses the constitutional limitations on property transactions in which the government either uses its power of eminent domain to condemn land for private downtown development, acquires land for the same purpose through a voluntary sale by the owner of the land, or subsidizes private development by its method of conveying property to the developer. Part III of the Article then discusses the problems that arise when a downtown project includes both public and private facilities, …

Warrantless Aerial Surveillance: A Constitutional Analysis, Kurt L. Schmalz

Vanderbilt Law Review

This Recent Development endorses the qualified open view approach, but proposes a new list of considerations to be applied when evaluating an aerial surveillance case. This proposed analysis rejects the open fields doctrine. Instead, courts should apply the Katz test to aerial surveillance. The per se open view approach,however, which holds that no reasonable expectation of privacy can exist in any open area visible from the air, is too narrow to ensure protection of the public's privacy rights. A broader view of the open view approach, which will subject government air surveillance to the warrant requirement in certain circumstances, strikes …

Case Digest, Journal Staff

Vanderbilt Journal of Transnational Law

Article III of the United States Constitution does not Grant Congress the Power to Extend United States Courts' Jurisdiction over Suits by Foreign Plaintiffs against Foreign Defendants

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

Under Federal Rule of Civil Procedure 37(B), the Courts have the Power to Impose Sanction of Personal Jurisdiction when a Party Fails to Comply with Discovery Order

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

Foreign Sovereign Immunity--A Strict Construction of the Concept of Instrumentalities under the Foreign Sovereign Immunities Act

Recent Decision, Duane A. Wilson

Vanderbilt Journal of Transnational Law

The Fifth Circuit Court of Appeals has taken the instant opportunity to write an essay on the law of search and seizure on the high seas. Applying Ramsey, the majority found authority for the Coast Guard action, either under section 89(a) or through the consent of the Panamanian Government. Although both conclusions are open to dispute, the major question arises from the court's analysis of the constitutionality of the Coast Guard action. While a firm resolution of the confusion engendered by previous conflicting Fifth Circuit decisions is certainly desirable, the instant court's resolution fails to provide necessary analytical clarity. Judge …

A Comparison Between The Constitutional Protections Against The Imposition Of Involuntary Expatriation And A Taxpayer's Right To Disclaim Citizenship, Terri R. Reicher

Vanderbilt Journal of Transnational Law

This Note examines both sides of the coin: the constitutional protections given the individual fighting to retain his citizenship will be compared with the burdens, particularly the tax consequences, imposed on individuals wanting to relinquish citizenship. Section II examines the classic constitutionally-based expatriation material. It discusses the legislative history of expatriation law, including the 1978 amendments to the INA, reviews the major expatriation case law, and concludes with an analysis of Vance v. Terrazas, the most recent Supreme Court pronouncement on the nature of the "voluntary" conduct required to constitute expatriation. Section III deals with the tax aspects of expatriation. …

Social Order And The Limits Of Law: A Theoretical Essay, Arthur S. Miller

Vanderbilt Law Review

Professor Jenkins maintains that Americans demand that "the law solve all of [their] problems and secure all of [their] purposes." The result is that we "so overload the legal apparatus that it short circuits, creating a spectacular display of fireworks but affecting nothing save its own wreckage."' That assertion, even if only partially accurate, merits close and continuing attention. Jenkins' analysis of that hypothesis--that proposition-is at once thought-provoking and illuminating. We are all in his debt for having written such a challenging book, even though I have some fundamental disagreements with how he develops that theme. Jenkins' work is a …

Aesthetic Regulation Under The Police Power: The New General Welfare And The Presumption Of Constitutionality, Beverly A. Rowlett

Vanderbilt Law Review

This Article will examine the existing methods of analysis employed by courts in reviewing primarily aesthetic regulations, as well as the way in which those methods have been affected by the courts' continually evolving interpretation of the concept of general welfare. The Article argues that in many cases in which regulations based solely or primarily on aesthetic considerations have been upheld, the essential constitutional inquiries have been misdirected. This is because "nonaesthetic" justifications are asserted that either are wholly derived from aesthetic benefits, or have no basis in fact--and need none because of the presumption of constitutionality. Because the more …

Point, Counterpoint: The Evolution Of American Political Philosophy, William H. Rehnquist

Vanderbilt Law Review

I would suggest to you that during the more than two centuries that have elapsed since the American Revolution, American political philosophy has been notable principally for the contrapuntal themes that rise and fall as the nation matures. Numerous commentators have pointed out that certain ideals have long been widely shared by Americans: individual autonomy, liberty, equality, and a belief in limited, decentralized government.1 But no one would be so bold as to describe the present government of the United States as embodying those ideals. We have a strong national government that, with occasional lapses, impinges more and more on …

The Effect Of Duress On The Iranian Hostage Settlement Agreement, James M. Redwine

Vanderbilt Journal of Transnational Law

As soon as the United States began celebrating the hostages' release, the validity of the agreement became a subject of intense controversy. Conservative commentators urged that the United States "renounce the deal." To them, the Declaration was not an agreement but extortion, and had "the same moral standing as an agreement made with a kidnapper, that is to say, none at all..."

Although it will take years of litigation and commentary to assess the full significance and consequences of the hostage taking and the settlement agreement, some preliminary observations may be made. The Declaration poses many difficult questions of international …

Democracy And Distrust: A Theory Of Judicial Review, Michael Conant

Vanderbilt Law Review

This review is a critique of the major themes in Democracy and Distrust: A Theory of Judicial Review,' by Professor John Hart Ely of Harvard Law School. Ely primarily addresses the amount of discretion exercised by Supreme Court justices in deciding constitutional cases, a fundamental issue since few scholars today would contest the actual existence of the judicial review power of the Court. Ely's thorough scholarship presents a fine discussion of the Court's legitimacy when it extends its discretion beyond the base of the actual constitutional language. Professor Ely misses the mark, however, in his argument that certain open-ended constitutional …

The Civil Investigative Demand: A Constitutional Analysis And Model Proposal, Anthony J. Mcfarland

Vanderbilt Law Review

This Note first traces the initial judicial reaction to administrative demands for information and administrative investigations and delineates the constitutional requirement set forth therein. The Note next examines the development of CIDs and analyzes decisions upholding their constitutionality. This Note contends that most courts either have incorrectly applied current administrative standards to the CID or have failed to apply such standards altogether. The analysis is broken down into six parts,each dealing with a separate constitutional basis for a CID challenge. Because most suits that contest CIDs are based on fourth amendment search and seizure issues, the bulk of this Note …

The Foreign Intelligence Surveillance Act Of 1978, Kim L. Kelley

Vanderbilt Journal of Transnational Law

In 1978 Congress enacted and President Carter signed into law the Foreign Intelligence Surveillance Act of 1978 [FISA]. The Act established the exclusive means by which foreign intelligence surveillance within the United States could be conducted. It was a completion of the statutory schemata governing domestic electronic eavesdropping created via Title III of the Omnibus Crime Control Act of 1968 [hereinafter Title III]. Congress enacted the FISA to clarify and delineate the proper interface between the dictates of the fourth amendment and foreign intelligence eavesdropping within the country. It was a legislative response to a void in this area of …

The Unconstitutional Detention Of Mexican And Canadian Prisoners By The United States Government, Jordan J. Paust

Vanderbilt Journal of Transnational Law

A recent article by Professor Bassiouni addresses the procedures for the transfer of prisoners under agreements with Mexico and Canada and certain "substantive constitutional issues" in a most interesting way. Nevertheless an interest in addressing constitutional problems from the most thorough of approaches possible compels further comment on federal powers and constitutional rights. Professor Bassiouni's efforts are noteworthy but his stated conclusion that "[t]he scheme for the transfer of offenders is a laudable step which should be supported by the bench and bar should not be unquestioningly accepted. The transfer agreements represent a retreat from the constitutional protection of fundamental …

East European Perceptions Of The Helsinki Final Act And The Role Of Citizen Initiatives, Vratislav Pechota

Vanderbilt Journal of Transnational Law

Human rights are articulable expressions of legal ideas that can be readily identified. The developments of the last thirty-five years have created a duality of sources from which fundamental rights of the individual derive. There are, on the one hand, national human rights. They derive from the constitution and the laws of each nation, from its traditions, values and other elements that make up what may be appropriately called the "national human rights culture." They are expressive of the specific needs of each society and indicate the purposes for which governments are created. They necessarily differ from one country to …

Due Process For Hill-Burton Assisted Facilities, Margaret L. Huddleston

Vanderbilt Law Review

The need to make health care available to all Americans does not justify the impairment of governmental contracts with Hill-Burton grantees. When substantial rights are greatly impaired by retroactive legislation, the need for a strong governmental justification becomes more acute. The impairment caused by the post-1947 Hill-Burton regulations, particularly the 1979 regulations, is neither reasonable nor necessary in light of the nature and extent to which they impair substantial private rights. The recent Hill-Burton regulations attempt to make health care more available to Americans,but the Government seeks to do this without additional financial expenditure on its part. Although the goal …

Police Use Of Trickery As An Interrogation Technique, James G. Thomas

Vanderbilt Law Review

This Note maintains that trickery can be effectively curtailed despite the failure of Miranda to do so. This Note argues that trickery in the interrogation room is a violation of fourteenth amendment substantive due process. The Supreme Court has recently stated, in very unambiguous terms, that due process requirements exist independently of the fifth amendment Miranda requirements in the interrogation context." This Note therefore proposes an objective due process standard that would prohibit trickery. The violation of this due process standard would require the exclusion at trial of confessions induced by trickery. Because the exclusionary rule is not a sufficient …

Recent Publications, Journal Staff

Vanderbilt Law Review

Bakke, DeFunis, and Minority Admissions: The Quest for Equal Opportunity

By Allan P. Sindler.

Sindler describes the admissions programs at the Universities of Washington and California-Davis, and the respective experiences of Marco DeFunis and Allan Bakke that preceded their litigation. Then, documenting the disparity in academic qualifications between accepted minorities and rejected nonminorities, Sindler addresses the broad issue before the courts. Is the reservation of academic "places" for minorities an inherently two-track system, which operates as an illegal quota to exclude "better-qualified" applicants; or may a school utilize race as a basis for selection in order to fulfill other commitments …

Justice Stevens: The First Three Terms, George C. Lamb, Iii, Charles L. Schlumberger, D. J. Simonetti, James D. Spratt Jr., Joel R. Tew, Douglas W. Ey, Jr. Special Projects Editor

Vanderbilt Law Review

This Special Project undertakes an examination of Justice Stevens' Supreme Court opinions in an effort to identify his philosophical orientations, to evaluate the consistency of his views, and to determine the extent to which he has developed workable analytical methods. To achieve these goals, Justice Stevens' opinions are examined in three contexts: first, the area of federal-state relations,including commerce clause and supremacy clause questions; second, the individual rights area, emphasizing criminal constitutional and first amendment issues, and problems of fifth and fourteenth amendment analysis; and third, questions concerning the proper role of the Supreme Court in the constitutional scheme. Even …

St. George Tucker, John Marshall,And Constitutionalism In The Post-Revolutionary South, Charles T. Cullen

Vanderbilt Law Review

A study of Marshall's early career suggests several reasons for constitutionalism fundamentally different from that of Tucker, a constitutionalism that became law in the early Republic because of Marshall's position on the Supreme Court. The writings and careers of southern constitutionalists like Tucker also merit further study in order to fully appreciate the growing divergence between the views originally expressed by him and those embraced by the nationalists, who decreased in number in the South after Marshall's time. Finally, we should develop a better understanding of the influence of southerners on the formation of legal and constitutional systems in other …