Constitutional Law Commons^™

A Bicentennial Symposium--The Constitution And Human Values: The Unfinished Agenda, Milner S. Ball

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The participants in this Symposium share a commitment to explore the question whether law--constitutional law in particular--is one of the humanities and therefore subject to understanding, critique, conceptualization, and practice in freshly humanizing modes. These authors--lawyers, poets, philosophers, writers, activists--make no great claims for their individuals labors or their shared enterprise. They prefer instead to let the work speak for itself.

Legal Perspectives On The Interstate Incidence And Shifting Of State And Local Taxes, Walter Hellerstein

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Lawyers, especially constitutional lawyers, have long been concerned with the problems associated with the interstate incidence and shifting of state and local taxes. The Constitution has frequently been invoked as a restraint on the states' power to levy taxes on persons, property, or activities outside their borders. Yet the lawyer's view of tax incidence embodied in these constitutional disputes often bears little resemblance to the economist's. In recent years, however, lawyers have sought to import economic concepts of shifting and incidence into the legal analysis of the constitutional limitations on the states' power to export tax burdens to residents of …

Employer And Consultant Reporting Under The Lmrda, J. Ralph Beaird

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In light of the criticisms of the House and recent constitutional objections, this article reevaluates the viability of the employer and consultant reporting provisions of the Labor Management Reporting and Disclosure Act (LMRDA). Section I discusses the legislative history and purpose of the LMRDA's reporting provisions. Section II examines the courts' treatment of the provisions when attacked on constitutional and statutory grounds.

Criminal Evidence And The Ear Of The Law, Daniel H. Derby

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No abstract provided.

The Emperor Gideon Has No Clothes: The Empty Promise Of The Constitutional Right Of Effective Assistance Of Counsel, Richard Klein

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No abstract provided.

Constitutional Interpretation—The Uses And Limitations Of Original Intent, Thomas B. Mcaffee

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It is fitting that in the decade of the Bicentennial of the Constitution we have seen a renewal of debate over the meaning of the Constitution and what is required to remain true to it. An aspect of that debate has concerned constitutional interpretation and the role of “original intent”—or perhaps more broadly, “original context”—in any proper approach to the interpretive process. Unfortunately, the debate is frequently approached from virtually an either/or perspective, as though the intent of the Framers must either control all constitutional questions or be used as no more than window-dressing. While some advocates of original intent …

A Race By Any Other Name: The Interplay Between Ethnicity, National Origin And Race For Purposes Of Section 1981, Eileen R. Kaufman

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No abstract provided.

Conflicts Between Copyright And The First Amendment After Harper & Row, Publishers V. Nation Enterprises, David E. Shipley

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The relationship between copyright and the first amendment has been discussed repeatedly in the past fifteen years. A free speech privilege has been asserted as a defense in many copyright infringement actions, and the topic has been the subject of lively academic debate. Although no court has held an infringement claim to be defeated by a first amendment defense, considerable attention has been paid to the potential conflict between copyright and free speech interests. Commentators have speculated that in some situations copyright protection could impermissibly abridge the first amendment. The United States Supreme Court's decision in Harper & Row, Publishers …

The Abortion Controversey: A Study In Law And Politics, Albert M. Pearson, Paul M. Kurtz

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The Supreme Court's 1973 decision in Roe v. Wade, which held that women have a federal constitutional right to an abortion, has generated considerable controversy. The abortion issue became politically significant in the 1960's, when, emboldened by the Supreme court's recognition of a constitutionally based right of privacy, activists initiated a series of legal challenges to the validity of state abortion laws. Their efforts finally succeeded in 1973 when the Supreme Court in Roe and Doe v. Bolton struck down as unconstitutional the Texas and Georgia abortion laws. For those who objected to the result in Roe, however, …

Government–Owned Media: The Government As Speaker And Censor, Linda L. Berger

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When government operates a communications medium, it may either promote first amendment values, by ensuring a diverse marketplace of ideas, or hinder them, by censoring the information and ideas it conveys. This Note proposes a synthesis of government speech and government forum analyses which would provide first amendment limitations on government-operated media while still allowing government to exercise editorial discretion.

Berger V. The Supreme Court—The Implications Of His Exceptions-Clause Odyssey, Thomas B. Mcaffee

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In his 1969 Congress v. The Supreme Court, Raoul Berger evaluated the potential claims to supremacy of Congress and the Supreme Court under the exceptions clause of article III and found in favor of the Supreme Court. Berger explicated a narrow construction of Congress’ express power to make exceptions to the Court’s appellate jurisdiction, holding that Congress’ claimed power to curb judicial excess was at odds with the design of the Constitution and without historical foundation. From 1969 to 1980, Berger reaffirmed his initial reading of the legislative history of article III no less than four times, once in …

Substantive Due Process And The Scope Of Constitutional Torts, Michael L. Wells, Thomas A. Eaton

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The thesis of this Article is that both the Supreme Court and its critics have failed to identify and confront the central issue presented by these due process constitutional tort cases. That issue is neither procedural fairness nor the choice between state and federal courts. It is deciding whether a government-inflicted injury to life, liberty, or property violates the substantive protections of the due process clauses and thereby warrants a constitutionally derived tort remedy. In Part II of this Article we examine the Supreme Court's decisions in this area, focusing primarily on Parratt v. Taylor. We demonstrate that neither Parratt …

A Due Process Of Judicially-Authorized Presumptions In Federal Aggravated Bank Robbery Cases, James F. Ponsoldt

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Within the past fifteen years several broadly-focused articles have identified general constitutional limits, under the due process clause, on presumptions and inferences created by statute or applied by courts in trying criminal cases. Recently, in County Court of Ulster County, New York v. Allen , the Supreme Court affirmed the validity of the evidentiary devices of inference and presumptions and labeled them "a staple of our adversary system of factfinding." This suggest that to unreasonably curtail the use of circumstantial evidence in the factfinding process would place an intolerable burden on prosecutors in their efforts to prove guilt beyond a …

Lawyers And The Abortion Debate: Presenting A Balanced View, Thomas B. Mcaffee

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The author is pleased to see the publication of A Lawyer Looks at Abortion because legal scholars have much to contribute to the understanding of public questions. Lay readers too often receive distorted impressions of legal issues from the media, and those who understand the system best are frequently too busy writing for the legal community to contribute to popular literature. Yet it is legal scholars who are best equipped to make the intricacies of law accessible to lay persons by defining and explaining legal terms and doctrine and by examining the reasoning found in relevant judicial decisions. Lawyers are …

State Income Taxation Of Multijurisdictional Corporations, Part Ii: Reflections On Asarco And Woolworth, Walter Hellerstein

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The first part of this Article, State Income Taxation of Multiurisdictional Corporations: Reflections on Mobil, Exxon, and H A 5076, did not contemplate a sequel. The Supreme Court's decisions last term in two state corporate income tax cases, however, created an irresistible opportunity to write one. The Court's opinions in ASARC0 and Woolworth picked up where its opinions in Mobil and Exxon left off. Yet the direction taken by these more recent decisions veers sharply from the course ostensibly set by their predecessors. This Article will consider the Court's latest pronouncements in this area in a continuing if quixotic effort …

Affirmative Duty And Constitutional Tort, Michael L. Wells, Thomas A. Eaton

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The Constitution ordinarily places only negative restrictions on government and does not require affirmative acts to assist individuals. The statutory vehicle for most constitutional tort litigation, 42 U.S.C. section 1983, echoes this constitutional principle. It extends liability to "[e]very person who ... [under color of state law] subjects, or causes to be subjected, any ... person" to the deprivation of federal rights, and makes no provision for a duty on governmental defendants to stop others from harming the plaintiff.

For some courts this principle disposes of affirmative duty claims forthwith. A noteworthy example is the recent seventh circuit case Bowers …

Causation In Constitutional Torts, Thomas A. Eaton

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The issue of causation is fundamental to every constitutional tort action. Money damages are not recoverable unless the defendant is found to have caused the plaintiff to be deprived of a constitutional right and that deprivation is the cause of some harm. In several recent decisions the Supreme Court has seized upon the language of causation as a means of restricting constitutional tort liability. In Monell v. Department of Social Services, for example, the Court based its rejection of respondeat superior on the implicit meaning of the term "causes." The concept of causation in a constitutional tort context thus requires …

Duties And Powers Respecting Foreign Crimes, Daniel H. Derby

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No abstract provided.

State Income Taxation Of Multijurisdictional Corporations: Reflections On Mobil, Exxon, And H.R. 5076, Walter Hellerstein

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The state tax field is enjoying a renaissance of sorts. The Supreme Court has displayed a renewed interest in the area, handing down an unusual number of significant decisions addressed to the constitutional restraints on state tax power. State courts have exhibited a similar revival of interest in these problems through an out-pouring of uncharacteristically thoughtful opinions concerning state taxation of multistate and multinational enterprise. Congress, whose concern with state taxation of interstate and foreign commerce has been sporadic, is again considering legislation that would limit state taxing authority in these domains.

Even the executive branch, which seldom intervenes in …

The Governmental-Proprietary Distinction In Constitutional Law, Michael L. Wells, Walter Hellerstein

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The governmental-proprietary distinction has led a stormy life. Courts have characterized it as “illusory,” a “quagmire,” a “rule of law that is inherently unsound,” and as a “talismanic formula” that results in “unenlightening characterizations of States’ activities.” Commentators have branded the distinction as “probably one of the most unsatisfactory known to the law,” have questioned its internal coherence, and have dismissed it as irrelevant in constitutional decisions. The distinction, however, clings stubbornly to life, appearing in a remarkably wide range of cases. The United States Supreme Court itself appears ambivalent about its worth. In some cases, the Court has rejected …

The Rights Of Gay Prisoners: A Challenge To Protective Custody, Joan W. Howarth

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This Note focuses on the specific issues raised by the traditional method of dealing with homosexuals in prison: isolation from the general prison population. This traditional segregation often results in almost twenty-four hour-a-day confinement to a cell, which severely limits access to programs and opportunities normally enjoyed by prisoners.

This Note first discusses the history and current practice of segregation of gay prisoners' as well as the broader subject of protective custody, and then outlines the judicial response to the problems of protective custody prisoners generally and gay prisoners specifically. It then critiques the judicial confusion and resulting reluctance to …

The Constitutional Rights Of Corporations Revisited: Social And Political Expression And The Corporation After First Nationial Bank V. Bellotti, Charles R.T. O'Kelley

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The Supreme Court has addressed only a few occasions the extent to which corporations enjoy those constitutional rights so fundamental to private citizens. In this article Professor O'Kelley discusses the inherent difficulty in applying familiar constitutional principles to corporations and examines those cases in which the Supreme Court has either extended or denied to corporations various constitutional rights. Finding that two underlying conceptual doctrines -- the Field rational and the associational rationale -- have guided the Court in previous decisions in this area, he then applies these doctrines in an analysis of the recent Supreme Court decision in First National …

Habeas Corpus And Freedom Of Speech, Michael L. Wells

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Discussion concerning the proper scope of federal habeas corpus for state prisoners usually focuses upon the use of the writ as a federal remedy for procedural errors of constitutional magnitude in state criminal trials. Proponents of “liberal” habeas argue that only federal courts can adequately protect the federal procedural rights of state criminal defendants, while critics contend that the states' interest in administering their criminal laws free from federal interference overshadows the asserted benefits. Setting the proper scope of the writ requires a weighing of these competing values.

The focus on procedure is appropriate, because the vast majority of habeas …

Hughes V. Oklahoma: The Court, The Commerce Clause, And State Control Of Natural Resources, Walter Hellerstein

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The Supreme Court's recent Commerce Clause opinions reflect an apparent effort to rationalize and modernize the analytical framework for delineating the implied restraints that the Clause imposes on state legislation. In the state tax field, the Court has articulated a coherent set of criteria controlling the validity of state taxes on interstate commerce and has discarded doctrine inconsistent with these standards. In the state regulatory context, the Court has likewise enunciated meaningful decisional principles governing the constitutionality of state regulations affecting interstate commerce and has applied them without substantial concern for their impact on its precedents of an earlier era. …

In Their Own Image: The Reframing Of The Due Process Clause By The United States Supreme Court, J. Ralph Beaird

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A distinguished constitutional scholar recently pointed out that "many of the important decisions of the Supreme Court of the United States are not based on law in the popular sense of that term." It is true, he noted, that "the court endeavors to identify Constitutional clauses upon which to hang its pronouncements." "[S]ome key words and phrases in the Constitution," however, "are so highly indeterminate that they cannot really qualify as law in any usual sense." Rather, he said, "they are semantic blanks--verbal vacuums that may be filled readily with any one of many possible meanings." Thus, it is not …

Warrantless Administrative Inspections After Marshall V. Barlow's, Inc., David Shipley

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Administrative inspections are indispensable: without them there is no practical way to determine whether there is compliance with the plethora of health, sanitary, safety, and building regulations that ensure that living and working conditions remain tolerable. The need for administrative agencies to have this power does not, however, immunize inspections from the requirements of the fourth amendment. Administrative inspections "are subject to the governing principle that a search of private property, in the absence of consent, is 'unreasonable' unless authorized by a valid search warrant. This article discusses the continuing vitality of the Colonnade-Bisiwell exception to the warrant requirement after …

Habeas Corpus And Freedom Of Speech, Michael Wells

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This Article will examine substantive attacks on habeas based on the assertion that the petitioner's confinement violates his first amendment rights of free speech, press or assembly. The thesis is that when these rights are at issue, the considerations supporting broad habeas are stronger, and the costs of habeas are lower, than when the petitioner is asserting the violation of a federal procedural right. As a result, the necessary choice of values is more easily resolved in favor of broad first amendment habeas than it is for broad procedural habeas. Essential to this analysis is the premise that a habeas …

Local Government "Home Rule": A Place To Stop?, R. Perry Sentell Jr.

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In November 1977, the Supreme Court of Georgia rendered a decision in City of Atlanta v. Myers which invalidated a municipal ordinance requiring that police officers and firefighters be residents of the municipality. The public media, in its discussion of the decision, primariily pointed out the residency requirement, the policy behind it, and its advantages and disadvantages to the cause of good government--all important matters. As frequently happens, however, even more crucial considerations in the case may have gone unheralded. From the legal perspective, that is, the importance of the decision and its implications may considerably transcend the factual context …

Constitutional Law - Due Process - Notice By Publication Is Constitutionally Inadequate In Tax Sale Proceeding, Martin A. Geer

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In 1976 the Michigan Supreme Court’s determined in Doe v. State that procedural due process requires an owner of a significant interest in real property to be given notice of the state’s foreclosure petition and a meaningful opportunity for a hearing which he may challenge the state’s claim that property taxes remain unpaid without legal justification. This casenote examines the existing legal precedent during the Doe v. State decision, the Michigan Supreme Court’s decision and analysis, and the legislature’s actions following the decision.

Note, A Dialogue On The Political Question Doctrine, Thomas B. Mcaffee, Christopher A. Johnson

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Legal scholars have generally discussed the political question doctrine as part of the larger debate over the legitimacy of judicial review. Points of discordance aside, scholars have agreed that the doctrine is “a classic technique of judicial avoidance, a way of allowing a governmental decision to stand without involving the Court in supporting its legitimacy.” Thus, debate over the objectives, legitimacy and scope of the doctrine has traditionally proceeded from the unquestioned assumption that there exists a body of law which justifies judicial abstention from deciding some types of issues.

In recent years, however, some scholars have challenged the assumption …