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2004

Discipline
Institution
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Publication
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Articles 541 - 553 of 553

Full-Text Articles in Constitutional Law

The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman Jan 2004

The Confrontation Clause Re-Rooted And Transformed, Richard D. Friedman

Articles

For several centuries, prosecution witnesses in criminal cases have given their testimony under oath, face to face with the accused, and subject to cross-examination at trial. The Confrontation Clause of the Sixth Amendment to the U.S. Constitution guarantees the procedure, providing that ‘‘[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witness against him.’’ In recent decades, however, judicial protection of the right has been lax, because the U.S. Supreme Court has tolerated admission of outof- court statements against the accused, without cross-examination, if the statements are deemed ‘‘reliable’’ or ‘‘trustworthy.’’ …

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Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman Jan 2004

Adjusting To Crawford: High Court Decision Restores Confrontation Clause Protection, Richard D. Friedman

Articles

In Crawford v. Washington, 124 S. Ct. 1354 (2004), the U.S. Supreme Court radically transformed its doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Craitiord is a very positive development, restoring to its central position one of the basic protections of the common law system of criminal justice. But the decision leaves many open questions, and all lawyers involved in the criminal justice process will have to adjust to the new regime that it creates. This article outlines and summarizes the problems with the law as it stood before Crait/brd. It then explains the theoretical …

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Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman Jan 2004

Face To Face': Rediscovering The Right To Confront Prosecution Witnesses, Richard D. Friedman

Articles

The Sixth Amendment to the United States Constitution protects the right of an accused 'to confront the witnesses against him'. The United States Supreme Court has treated this Confrontation Clause as a broad but rather easily rebuttable rule against using hearsay on behalf of a criminal prosecution; with respect to most hearsay, the exclusionary rule is overcome if the court is persuaded that the statement is sufficiently reliable, and the court can reach that conclusion if the statement fits within a 'firmly rooted' hearsay exception. This article argues that this framework should be abandoned. The clause should not be regarded …

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Experimentalist Equal Protection, Brandon L. Garrett, James S. Liebman Jan 2004

Experimentalist Equal Protection, Brandon L. Garrett, James S. Liebman

Faculty Scholarship

Elsewhere Garrett and Liebman have recounted that though James Madison is considered "the Father of the Constitution," his progeny disappointed him because it was defenseless against self-government's "mortal disease " – the oppression of minorities by local majorities – because the Framers rejected the radical structural approach to equal protection that Madison proposed. Nor did the framers of the Fourteenth Amendment's Equal Protection Clause and federal courts enforcing it adopt a solution Madison would have considered "effectual." This Article explores recent subconstitutional innovations in governance and public administration that may finally bring the nation within reach of the constitutional polity …

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Reading Clarence Thomas, Kendall Thomas Jan 2004

Reading Clarence Thomas, Kendall Thomas

Faculty Scholarship

Several years ago, a special issue of The New Yorker entitled "Black in America" included an extraordinary profile of U.S. Supreme Court Justice Clarence Thomas. Authored by Jeffrey Rosen, the article begins with an account of Justice Thomas's interventions in two of the most important cases decided during the Court's previous term. In the first of these cases, Missouri v. Jenkins, the Court was called upon to define the constitutional scope and limits of the federal judicial power to address racial concentration in Kansas City's public schools through salary increases and the creation of magnet programs. In the second …

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Against Separation, Philip A. Hamburger Jan 2004

Against Separation, Philip A. Hamburger

Faculty Scholarship

In 1802, in a letter to the Danbury Baptist Association, Thomas Jefferson wrote that the First Amendment had the effect of "building a wall of separation between Church & State." As it happens, when Congress drafted the First Amendment in 1789, Jefferson was enjoying Paris. Nonetheless, his words about separation are often taken as an authoritative interpretation of the First Amendment's establishment clause. Indeed, in the 1947 Everson v. Board of Education decision, the Supreme Court quoted Jefferson's pronouncement to justify its conclusion that the First Amendment guarantees a separation of church and state. Not only the justices but …

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Understanding Macs: Moral Hazard In Acquisitions, Ronald J. Gilson, Alan Schwartz Jan 2004

Understanding Macs: Moral Hazard In Acquisitions, Ronald J. Gilson, Alan Schwartz

Faculty Scholarship

The standard contract that governs friendly mergers contains a material adverse change clause (a "MAC") and a material adverse effect clause (a "MAE"); these clauses permit a buyer costlessly to cancel the deal if such a change or effect occurs. In recent years, the application of the traditional standard-like MAC and MAE term has been restricted by a detailed set of exceptions that curtails the buyer's ability to exit. The term today engenders substantial litigation and occupies center stage in the negotiation of merger agreements. This paper asks what functions the MAC and MAE term serve, what function the exceptions …

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The Crawford Transformation, Richard D. Friedman Jan 2004

The Crawford Transformation, Richard D. Friedman

Articles

Crawford v. Washington, 124 S. Ct. 1354 (2004), is one of the most dramatic Evidence cases in recent history, radically transforming the doctrine governing the Confrontation Clause of the Sixth Amendment to the U.S. Constitution. Crawford is a very positive development, but leaves many open questions - and forces Evidence teachers to rethink how they teach hearsay and confrontation.

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Judicial Campaign Codes After Republican Party Of Minnesota V. White, Richard Briffault Jan 2004

Judicial Campaign Codes After Republican Party Of Minnesota V. White, Richard Briffault

Faculty Scholarship

The vast majority of judicial offices in the United States are subject to election. The votes of the people select or retain at least some judges in thirty-nine states, and all judges are elected in twenty-one states. By one count, 87% of the state and local judges in the United States have to face the voters at some point if they want to win or remain in office. Judicial elections, however, differ from elections for legislative or executive offices in a number of significant ways. In nineteen states, most judges are initially appointed but must later go before the voters …

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Editorial: The European Union As A Constitutional Experiment, George Bermann Jan 2004

Editorial: The European Union As A Constitutional Experiment, George Bermann

Faculty Scholarship

In the constellation of international governance regimes, the European Union occupies a singular place, and not merely because it has recently engaged in the process of drafting a document whose title includes the words A Constitution for Europe'. Even if that particular document, or any such document, were never to see the light of day as a fully adopted and ratified instrument (an eventuality I consider to be unlikely), the EU will already have been constitutionalised, albeit in a fashion unfamiliar to those who, like most of us, are accustomed to the constitutions of Nation States. To claim that the …

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The Inevitable Failure Of Nuisance-Based Theories Of The Takings Clause: A Reply To Professor Claeys, Stewart E. Sterk Jan 2004

The Inevitable Failure Of Nuisance-Based Theories Of The Takings Clause: A Reply To Professor Claeys, Stewart E. Sterk

Articles

Rejecting the proposition (advanced by Professor Eric Claeys) that the Rehnquist Court's conservatives have missed an opportunity to transform takings law, this commentary demonstrates that a nuisance-based theory cannot provide a comprehensive basis for takings clause jurisprudence. The commentary further establishes that no plausible vision of originalism supports a nuisance based theory, and concludes by arguing that judicial scrutiny of state and local land use practices is less deferential than it was at the inception of the Rehnquist Court.

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Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam Jan 2004

Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam

Articles

In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory …

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Justice Scalia On The Use Of Foreign Law In Constitutional Interpretation: Unidirectional Monologue Or Co-Constitutive Dialogue, Melissa A. Waters Jan 2004

Justice Scalia On The Use Of Foreign Law In Constitutional Interpretation: Unidirectional Monologue Or Co-Constitutive Dialogue, Melissa A. Waters

Scholarship@WashULaw

This short essay explores Justice Antonin Scalia's conservative alternative approach to recent efforts by other Justices to utilize foreign and international legal sources in the Supreme Court's jurisprudence. It discusses Justice Scalia's writings and remarks over the course of the 2003-2004 Supreme Court Term: On the one hand, Justice Scalia consistently denounced the use of foreign legal sources in constitutional interpretation, both in his concurring opinion in Sosa v. Alvarez-Machain and in his keynote address at the Annual Meeting of the American Society of International Law. On the other hand, in his dissent in Olympic Airways v. Husain, Justice Scalia …

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