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Articles 1981 - 2010 of 2011
Full-Text Articles in Constitutional Law
Bias Impeachment And The Proposed Federal Rules Of Evidence, John R. Schmertz, Karen Czapanskiy
Bias Impeachment And The Proposed Federal Rules Of Evidence, John R. Schmertz, Karen Czapanskiy
Faculty Scholarship
In the fall of 1971 the Supreme Court's Advisory Committee presented to the Court the Proposed Federal Rules of Evidence. The Committee failed to include a rule on impeachment by bias, interest, or prejudice. In failing to include such a rule, the Committee bypassed the opportunity to reconcile a conflict over both the content and methodology of this form of impeachment. The authors, in an attempt to show the need for a rule dealing with bias impeachment, analyze the present decisional conflict in this area. They conclude by proposing a rule designed to add some uniformity to this highly persuasive …
The New Confrontation—Hearsay Dilemma, Frank T. Read
The New Confrontation—Hearsay Dilemma, Frank T. Read
Faculty Scholarship
No abstract provided.
Searching For The Intent Of The Framers Of Fourteenth Amendment , Robert J. Kaczorowski
Searching For The Intent Of The Framers Of Fourteenth Amendment , Robert J. Kaczorowski
Faculty Scholarship
IN 1946 JUSTICE HUGO BLACK DECLARED that one of the objects of the fourteenth amendment was to apply the Bill of Rights to the States. He was confident that an analysis of the intent of the framers of the amendment would support his assertion. A few years later the Supreme Court requested such an investigation, but when the analysis was made and the results presented to it, the Supreme Court concluded that the framers' intent could not be determined. The uncertainty surrounding the intent of the framers of the fourteenth amendment has had profound implications on the application of that …
The Reality Of Procedural Due Process – A Study Of The Implementation Of Fair Hearing Requirements By The Welfare Caseworker, Robert E. Scott
The Reality Of Procedural Due Process – A Study Of The Implementation Of Fair Hearing Requirements By The Welfare Caseworker, Robert E. Scott
Faculty Scholarship
The constitutional mandates of procedural due process have been more sharply defined in recent years as a result of the decision of the Supreme Court in Goldberg v. Kelly. Although the full extent of the doctrine has not yet been delimited, the core proposition seems well established that in the absence of an overriding governmental interest, procedural -due process requires that an individual be accorded notice and a hearing prior to an administrative decision that would adversely affect his ability to subsist by contemporary standards. In applying this principle to the termination of public assistance payments, the Court in …
The Grand Jury As The New Inquisition, Michael E. Tigar, Madeline R. Levy
The Grand Jury As The New Inquisition, Michael E. Tigar, Madeline R. Levy
Faculty Scholarship
No abstract provided.
All Or Nothing At All: The Defeat Of Selective Conscientious Objection, Kent Greenawalt
All Or Nothing At All: The Defeat Of Selective Conscientious Objection, Kent Greenawalt
Faculty Scholarship
The generosity of the United States Supreme Court to conscientious objectors whom Congress has declined to exempt from military service has apparently ended. In Gillette v. United States, decided with Negre v. Larsen, the Court decisively closed the door on claims that those conscientiously opposed to participation in particular wars are entitled by statute or constitutional right to an exemption from military service. Mr. Justice Marshall's majority opinion first disposes of the statutory claim. According to the opinion, the relevant language of § 6(j) of the Military Selective Service Act of 1967," conscientiously opposed to participation in war …
The War In Southeast Asia: A Legal Position Paper, Gordon G. Young
The War In Southeast Asia: A Legal Position Paper, Gordon G. Young
Faculty Scholarship
No abstract provided.
Judicial Power, The “Political Question Doctrine,” And Foreign Relations, Michael E. Tigar
Judicial Power, The “Political Question Doctrine,” And Foreign Relations, Michael E. Tigar
Faculty Scholarship
No abstract provided.
First Amendment "Due Process", Henry Paul Monaghan
First Amendment "Due Process", Henry Paul Monaghan
Faculty Scholarship
A number of recent Supreme Court opinions, primarily in the obscenity area, have fastened strict procedural requirements on governmental action aimed at controlling the exercise of first amendment rights. Professor Monaghan believes that there are two basic principles that can be distilled from these cases: that a judicial body, following an adversary hearing, must decide on the protected character of the speech, and that the judicial determination must either precede or immediately follow any governmental action which restricts speech. The author argues that these two broad principles should limit any governmental activity which affects freedom of speech, no matter how …
Public Support And The Sectarian University, Walter Gellhorn, Kent Greenawalt
Public Support And The Sectarian University, Walter Gellhorn, Kent Greenawalt
Faculty Scholarship
In mid-1968 we undertook to advise Fordham University concerning steps that might be appropriate to establish its eligibility for public assistance. As part of that task we tried to determine the extent to which present law requires official differentiation between Church-related and other institutions of higher learning. Since the University sought a wholly detached consideration of its legal posture, our conclusions in this article represent our best judgment of the present state of the law and its probable development. We have avoided indicating our own personal position on debatable legal and ethical issues.
The Constitutional Rights Of Public Employees: A Comment On The Inappropriate Uses Of An Old Analogy, William W. Van Alstyne
The Constitutional Rights Of Public Employees: A Comment On The Inappropriate Uses Of An Old Analogy, William W. Van Alstyne
Faculty Scholarship
Beginning with Justice Douglass's assertion that the State is bound in the same ways when acting as an employer as it is when acting as a governing body, this examination delves deeper to determine how this doctrine actually limits the government when it acts as an employer. This article endorses the theory of examining these limits not in the context of if the government is allowed to enforce them in the public sphere, but if the government may mandate such limits in the private sphere
New Frontiers, Michael E. Tigar
The Tentative Emergence Of Student Power In The United States, William W. Van Alstyne
The Tentative Emergence Of Student Power In The United States, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
A Constitution For Every Man, William W. Van Alstyne
A Constitution For Every Man, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
The Regulation And Administration Of The Welfare Hearing Process – The Need For Administrative Responsibility, Robert E. Scott
The Regulation And Administration Of The Welfare Hearing Process – The Need For Administrative Responsibility, Robert E. Scott
Faculty Scholarship
In recent years, the concept of public welfare has undergone substantial conceptual changes, the primary being a shift from the older concept of gratuity to one of statutory entitlement pursuant to the Social Security Act. This paper seeks to examine and analyze the administrative "fair hearing" as a means of effective regulation of administrative discretion and enforcement of the entitlement provisions of the federal act. Primary emphasis is placed on a comparative treatment of state hearing procedures and federal hearing regulations to determine whether the fair hearing is, at present, a viable means of insuring due process in welfare administration.
Labor Law Decisions Of The Supreme Court, October Term 1967-68, Charles H. Livengood Jr.
Labor Law Decisions Of The Supreme Court, October Term 1967-68, Charles H. Livengood Jr.
Faculty Scholarship
No abstract provided.
The Judicial Trend Toward Student Academic Freedom, William W. Van Alstyne
The Judicial Trend Toward Student Academic Freedom, William W. Van Alstyne
Faculty Scholarship
This analysis references the growing likelihood that even “private” colleges and universities may be viewed as state actors due to these institutions growing reliance on public funds and their performance of what is often considered a public function. Under this treatment, this examination discusses the growing sphere of student rights.
The Student As University Resident, William W. Van Alstyne
The Student As University Resident, William W. Van Alstyne
Faculty Scholarship
This examination argues that the position that a student’s rights are determined by whether he lives on or off-campus is unraveled by the institution’s position as a state actor. This article disposes of the notion that the university is equivalent to a landlord in property and contract rights and discusses how this distinction affects students’ rights.
Commentary, An Ode To Rejection, Aaron Twerski
Commentary, An Ode To Rejection, Aaron Twerski
Faculty Scholarship
No abstract provided.
The Demise Of The Right-Privilege Distinction In Constitutional Law, William W. Van Alstyne
The Demise Of The Right-Privilege Distinction In Constitutional Law, William W. Van Alstyne
Faculty Scholarship
The right-privilege distinction, as it appeared in an early statement by Justice Holmes, has long hampered individuals within the public sector in protecting themselves against arbitrary governmental action. In this article Professor Van Alstyne reviews the uses and misuses to which the "privilege" concept has been put and then examines those doctrines whose flanking attacks have gradually eroded its efficacy. But none of these doctrines comes to grips with Holmes' basic idea of a "privilege" to which substantive due process is inapplicable. Applying Holmes' own jurisprudence, the author argues that the concept of "privilege" is today no longer viable, and …
The Truth-In-Negotiations Act – An Examination Of Defective Pricing In Government Contracts, Michael J. Graetz
The Truth-In-Negotiations Act – An Examination Of Defective Pricing In Government Contracts, Michael J. Graetz
Faculty Scholarship
Charges of excessive profitmaking on government contracts have issued from the Senate floor and the nation's press and have provided the impetus for recent congressional investigations and proposals for remedial legislation. Profiteering by government contractors is a problem of potentially enormous dimensions since purchases by the federal government total more than seventy-seven billion dollars – over ten per cent of the gross national product. Because the greatest part of these purchases are made by the Department of Defense, congressional action aimed at minimizing excessive profits has focused upon Defense Department procurement activities under the Armed Services Procurement Act (ASPA).
Constitutional Law, Kent Greenawalt
Constitutional Law, Kent Greenawalt
Faculty Scholarship
In the last thirty years, the equal protection clause has been largely transformed. Once a point of reference for courts striking down schemes of economic regulation which they regarded as unreasonable or unwise, it is now primarily a source of constitutional standards in the areas of civil rights, reapportionment, and rights of indigents accused of crime. These standards are of immense legal and social consequence. Since the landmark case of Brown v. Board of Educ. their development-characterized by Professor Philip B. Kurland as "the rise of egalitarianism" – has been paralleled by an increasing attention to the claims of equality …
Book Review, William W. Van Alstyne
Book Review, Ira Michael Heyman, Michael E. Tigar
Book Review, Ira Michael Heyman, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Book Review, William W. Van Alstyne
Book Review, William W. Van Alstyne
Faculty Scholarship
This review of "The Supreme Court on Trial" by Charles Hyneman, questions why the work’s tackling the age-old issues of the source of judicial review and its constitutionality is particularly novel or unique from other such examinations. Issue is also taken with Brown v. Board of Educaion's dominance of such discussion and the book’s poor treatment of the desegregation cases.
Procedural Due Process And State University Students, William W. Van Alstyne
Procedural Due Process And State University Students, William W. Van Alstyne
Faculty Scholarship
This examination seeks to address the problems both universities and students confront regarding the growth of student expression. It is noted that contemporary students sometimes have fewer rights than petty criminals and this article explores the common reasons behind universities’ abbreviated procedures and reconcile those reasons with students’ emerging Fourteenth Amendment rights.
Book Review, William W. Van Alstyne
Book Review, William W. Van Alstyne
Faculty Scholarship
This review champions the editor’s use of Mr. Justice Black’s own opinions in showcasing his emphasis of the emancipating aspects of the Constitution. This work cautions the reader to avoid relying on this compilation as an accurate depiction of the state of the law, especially considering that most of the included opinions are dissents.
Executive Privilege In The Federal Courts, Paul Hardin Iii
Executive Privilege In The Federal Courts, Paul Hardin Iii
Faculty Scholarship
No abstract provided.
Comment: Sit-Ins And State Action- Mr. Justice Douglas, Concurring, Kenneth L. Karst, William W. Van Alstyne
Comment: Sit-Ins And State Action- Mr. Justice Douglas, Concurring, Kenneth L. Karst, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
The O’Meara Case And Constitutional Requirements Of State Anti-Discrimination Housing Laws, William W. Van Alstyne
The O’Meara Case And Constitutional Requirements Of State Anti-Discrimination Housing Laws, William W. Van Alstyne
Faculty Scholarship
Against the backdrop of the highly criticized O’Meara case, this comment explores the possible rational bases a state could use to support a differentiation between publicly-assisted and unassisted home owners. This comment also addresses the question of how substantial that rational bases must be in order to survive the requirements of equal protection.