Constitutional Law Commons^™

The Protection Accorded Picketing By The First Amendment, Joseph J. Corso

Akron Law Review

In the context of labor law, the origin of the relationship between free speech and peaceful picketing is the case of Thornhill v. Alabama. The speech aspects of picketing and the necessarily accompanying First Amendment protections were stressed by the Supreme Court in holding unconstitutional a state statute which constituted a broad ban on all picketing. The Court expressly limited the holding by recognizing that a narrowly worded statute, such as one merely interdicting picketing en masse or picketing portending imminent danger may be valid. An additional limitation of the decision is the fact that it was reached under a …

Constitutional Rights Of Youthful Offenders; In The Matter Of Gault, Robert M. Kunczt

Akron Law Review

After the decisions in Gideon v. Wainwright, 372 U. S. 335 (1963), Miranda v. Arizona, 384 U. S. 436 (1966), and Escobedo v. Illinois, 378 U. S. 478 (1964), which revealed the Supreme Court's solicitude of the constitutional rights of adults, it seemed improbable that the lower courts would long be permitted to continue ignoring the constitutional rights of juveniles. Thus the decision in the principal case, which represents a breakthrough in the assurance of a fair hearing to minors, comes as no surprise. The case holds that under the Fourteenth Amendment a juvenile has a right to notice of …

August 19, 2015: “The Money Seems To Have Lost Its Knack For Hoodwinking The Voters.”, Bruce Ledewitz

Hallowed Secularism

Blog post, ““The money seems to have lost its knack for hoodwinking the voters.”“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Rights Of State Prisoners - Federal Court Intervention In State Prison Administration; Jones V. Wittenberg, Ronald L. Collins

Akron Law Review

The path to federal court intervention into state prison administration has been a tortuous and rocky one.... Jones v. Wittenberg carries federal court intervention into state prison administration to new lengths. Until more basic and lasting changes are made on the part of society and the states, such intervention seems to be the best chance for ameliorating conditions in our state penal systems.

The Reed Case: The Seed For Equal Protection From Sex-Based Discrimination, Or Polite Judicial Hedging?, John P. Murphy Jr.

Akron Law Review

Reed is yet another example of how the Equal Protection Clause may be used to strike down state statutes which embody arbitrary classifications that are neither fairly nor substantially related to the object of the statute, and which bring about the invidious discrimination that is repugnant to the Fourteenth Amendment. It must stressed that the outcome of Reed is clearly commendable in terms of justice. What is troublesome is the fact that one may contend that the Supreme Court hedged, perhaps avoided, an excellent opportunity in which to expand the constitutional scope of the Equal Protection Clause. Reed afforded the …

Constitutional Law - Flag Desecration Statutes - Freedom Of Expression; Parker V. Morgan, Bruce C. Heslop

Akron Law Review

Viewed in its broad perspective, Parker v. Morgan has further clarified and circumscribed the constitutional limits of the state's power to protect the American flag from public acts of desecration. In this respect it may be considered to provide further insight into the constitutional questions involved in this relatively untouched area of the law. However, until authoritative consideration has been given to the nature and source of those protective powers which are reserved to a state, Parker v. Morgan cannot be regarded to have drawn the ultimate lines of demarcation for the constitutional validity of flag desecration statutes. A meaningful …

House Bill 1219: A Study, Paul M. Scott

Akron Law Review

Because H.B. 1219 does raise certain constitutional questions which will soon come before the courts, and because of its potential impact on higher education in Ohio, a complete study of it is in order. This Comment seeks to do that by analysis of the background events leading up to the bill's introduction, its legislative history, a summary and explanation of the act's important provisions, an analysis of potential constitutional infirmities in view of current court decisions, and a discussion of relevant policy considerations. The purpose of this Comment is not to assess the wisdom or desirability of the statute, but …

Constitutional Law And Secured Transactions: State Action V. Private Action - Uniform Commercial Code Self-Help; Repossession Provisions - Do Not Violate Due Process Requirements; Adams V. Southern California First National Bank, David M. Hunter

Akron Law Review

Several years ago, the United States Supreme Court, in Sniadach v. Family Finance Corp.,' signaled what has been eventually interpreted in subsequent decisions as the strict measurement of creditors' rights against the requirements of due process set forth in the fourteenth amendment. What has since transpired has been an onslaught of litigation in this area of such magnitude that the due process requirements of prior notice and hearing found in Sniadach have been extended to virtually all forms of prejudgment remedies available to the aggrieved creditor. Despite all of this, the rationale of the Court of Appeals for the Ninth …

Ohio House Bill 869 And Similar Statutes: An Analysis Of Mandatory Deposits On Beverage Containers To Promote Recycling In Relation To Environmental Control, Gary R. Myers

Akron Law Review

Proposed House Bill 8691 requires that all soft drink and beer containers carry a mandatory five-cent deposit in order to promote their recycling. This would necessarily cause a reduction in the litter discarded along Ohio's highways, parks, beaches, etc. To Ohio environmentalists, the Bill represents a major legislative response to the growing litter and solid waste problem. However, to industry it represents a major curtailment of their production growth and profits, specifically those industries whose production is concentrated solely or substantially in the area of non-returnable cans and bottles. If the Bill becomes effective it will be a major victory …

Obscenity - New First Amendment Standards; Miller V. California, Stacy E. Wolfe

Akron Law Review

It has been over fifteen years since the Supreme Court embarked on its precarious course of determining the Constitutional boundaries for control of obscenity by the state and federal governments. The Court's first attempt to define the meaning of obscenity and ultimately determine the Constitutional protection afforded this expression was in Roth v. United States. What has followed can only be characterized as a series of irreconcilable conflicts and discrepancies that have left the law in this area in total confusion. Recently, the Court in Miller v. California has again attempted to provide "concrete guidelines to isolate 'hard core' pornography …

Fifth Amendment - Due Process Clause- Sex Discrimination - Sex: A Suspect Classification; Frontiero V. Richardson, John J. Cook

Akron Law Review

Sharon A. Frontiero, a lieutenant in the United States Air Force, sought increased benefits for her husband as a "dependent" under 37 U.S.C. Sections 401, 4031 and 10 U.S.C. Sections 1072, 10762 Those statutes provide that spouses of male members of the uniformed services are always dependents for purposes of obtaining increased quarters allowances and medical and dental benefits, but that spouses of female members are not dependents unless they are, in fact, dependent for over one-half of their support.3

Equal Protection - Property Taxes As A Method Of Funding Public Education; San Antonio Independent School District V. Rodriguez, Mark K. Croft

Akron Law Review

Suit was brought in U.S. District Court for the Western District of Texas challenging the constitutionality of the Texas school financing system on the theory that it discriminated on a basis of wealth, permitting provision of a higher quality of education to be offered the children in property-rich school districts while residents pay a lower tax rate, thus denying equal protection of the law.' The District Court found the laws forming this system unconstitutional on this basis. Appeal brought the case to the Supreme Court in October of 1972, where it was reversed.

Chipping Away At The First Amendment: Newspapermen Must Disclose Sources, Michael F. Buchicchio

Akron Law Review

This Comment will explore the background and history of the journalistic privilege in light of case law and early constitutional argument. It will analyze the recent Supreme Court decisions denying a privilege to newsmen to conceal their sources, and attempt to explain how this privilege can best be maintained.

Presidential Impoundment Of Funds: A Constitutional Crisis, Gerald A. Figurski

Akron Law Review

It seems that our maligned Congress, so docile at times in the face of presidential aggrandizement of power, is forging a constitutional crisis. The basic issue involved is whether the President has authority, either constitutional or statutory, to refuse to spend funds appropriated by Congress. The questions pursued in the following pages are basically four: does the President have the (1) statutory, (2) historical, (3) case, or (4) constitutional authority to continue to impound?

The Uneasy Partnership: The Balance Of Power Between Congress And The Supreme Court In Interpretation Of The Civil War Amendments, Emil Lippe Jr.

Akron Law Review

The basic thesis of this article is that the enforcement clauses of the thirteenth,' fourteenth, 2 and fifteenth 3 amendments have imposed strong affirmative duties upon the United States Congress and the Supreme Court. These duties, due to their very nature, must be exercised in tandem with each other toward the overall goal of the Civil War Amendments: the guarantee that the civil rights of no American be denied him on the basis of race, color, or previous condition of servitude. In addition, a special type of constitutional stare decisis operates to prevent both branches from contracting the rights guaranteed …

Obscenity - Liquor Regulations; California V. Larue, Richard Bernstein

Akron Law Review

The state has the power to regulate the distribution of liquor and enforce health and safety regulations, but the state may not broadly stifle First Amendment freedoms when doing so. "The breath of legislative abridgement must be viewed in the light of less drastic means for achieving the same basic purpose." s The Court has consistently held that only a compelling state interest in the regulation of a subject within the state's constitutional power to regulate can justify limiting First Amendment freedoms.

The "Compulsory School Attendance" Case: Wisconsin V. Yoder, Michael Buchicchio

Akron Law Review

It is an important constitutional doctrine that a law generally constitutional "on its face," may be unconstitutional "as applied" in specific instances. The Amish case marks the first occasion that the Court has clearly articulated that exception in favor of a minority religious group. It would appear that compulsory education laws are-"on their face"--within a state's constitutional powers, but under the facts of this case, the First Amendment requires that the Amish be exempt.

Search And Seizure - Warrantless Search- Allowable Extent Incident To Arrest; United States V. Robinson, John Nelson Childs

Akron Law Review

DISTRICT OF COLUMBIA Metropolitan Policeman Richard Jencks, on April 19, 1968, halted Willie Robinson for a "routine spot check."' While examining Robinson's driver's license, motor vehicle registration, and selective service card, Officer Jencks noticed an 11-year discrepancy between the two birthdates listed on his driver's license and his draft card. Upon a later check of police traffic records, Officer Jencks discovered that an operator's permit issued to "Willie Robinson, Jr.," born in 1927, had been revoked and that a temporary license had been issued to a "Willie Robinson," born in 1938. Four days later, the same officer observed Robinson operating …

August 15, 2015: No Religious Right To Refuse Government Service, Bruce Ledewitz

Hallowed Secularism

Blog post, “No Religious Right to Refuse Government Service“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Federalism As A Constitutional Principle, Ernest Young

University of Cincinnati Law Review

Justice O’Connor rightly called federalism “our oldest question of constitutional law.”1 But the constitutional balance between the nation and the states is hardly what the cool kids are talking about these days. My first-year con law students show up each Fall expecting to learn about same-sex marriage, flag burning, and abortion; they’re plainly disappointed when they pick up the syllabus and see how much of the course is going to be about government structure.

The first part of my talk resists that intuition. The notion that federalism is passé is so tragically wrongheaded that I can’t bear to leave it …

Desta V. Knesset, Miriam Naor, Salim Joubran, Esther Hayut, Yoram Danziger, Zvi Zylbertal, Uzi Vogelman, Isaac Amit, Hanan Melcer, Neal Hendel

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The petition challenged the constitutionality of sec. 30A and Chapter D of the Prevention of Infiltration (Offences and Jurisdiction) Law, 5714-1954 (hereinafter: the Law) as amended by the Prevention of Infiltration and Ensuring Departure of Infiltrators from Israel (Legislative Amendments and Temporary Provisions) Law, 5775-2014, which establish that infiltrators into Israel can be detained in custody for a period of up to three months, …

Raze The Debt Ceiling: A Test Case For State-Sovereign And Institutional Bondholder Litigation To Void The Debt Limit Statute, Victor Williams

Washington and Lee Law Review Online

In March 2015, the debt ceiling was hit again and sovereign default loomed. Refusing to timely raise the debt ceiling, congressional ideologues have four times pushed our nation to the brink of a catastrophic debt default in as many years. Our struggling economy is again threatened, financial institutions are again spending millions planning for default, and vulnerable citizens are once again worrying about their benefit payments. Enough is enough.

This Essay argues that nationwide bondholder litigation can void the unconstitutional debt ceiling, and it presents the first litigation in that effort. (Williams v. Lew, No. 15-1565, U.S. Court of Appeals …

August 9, 2015: The Need For Forgiveness, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Need for Forgiveness“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Wrongful Death: Fetal Rights - Cause Of Action Grated For Fetal Deaths Under Wrongful Death Statute; Eich V. Town Of Gulf Shores, Mary Ann Kovach

Akron Law Review

A WRONGFUL DEATH ACTION, Eich v. Town of Gulf Shores, was decided as a result of an automobile accident that occurred on March 2, 1974, near the small Alabama town of Gulf Shores. Although the facts of the incident were not fully recounted, it appears that the plaintiff, who was eight and one-half months pregnant at the time, was struck by a negligently operated city police car and severely injured. Although plaintiff recovered from her injuries, the child did not and was stillborn. Mrs. Eich then sued, seeking damages for the death of the unborn child and basing her action …

Student Rights Under The Due Process Clause . . . Suspensions From Public Schools; Goss V. Lopez, Glenn W. Soden

Akron Law Review

IN ADDRESSING ITSELF to the constitutionality of Section 3316.66 of the Ohio Revised Code,' the United States Supreme Court in Goss v. Lopez has ruled for the first time upon the extent to which the rights of students are to be protected under the due process clause of the fourteenth amendment in conjunction with any disciplinary removal from a public school. By its action the Court has tacitly undertaken to lift the cloud on student rights which has existed under the common law doctrine of in loco parentis, and interpose procedural safeguards upon any decision of school officials to deprive …

Corporations; First Amendment Rights; State Ex Rel Grant V. Brown, Theodore David Itzkowitz

Akron Law Review

IN AUGUST 9, 1972 the Relators, Greater Cincinnati Gay Society, tendered articles of incorporation for a non-profit corporation to the Secretary of State of Ohio, under provisions of the Ohio Revised Code. The Secretary of State refused to accept the incorporation papers, however, claiming that the purpose of the group, which was to promote acceptance of homosexuality as a valid life style, was contrary to public policy, since homosexuality was then a criminal act.

Marriage Rights; Homosexuals And Transsexuals; B. V. B.,, William D. Lentz

Akron Law Review

WHAT IS A MARRIAGE? Although there are several definitions, they all contain one common element: the union of one man and one woman. However, if a particular state had no statute which specifically required that marriage be between a man and a woman would the courts uphold a marriage between members of the same sex? The New York Supreme Court, in B. v. B., answered that question in the negative. In that case the wife brought an action for annulment on the ground that her husband was a female, and the husband attempted to amend his answer and counterclaim for …

Courts, Creditors' Rights; Debtors' Protection; Sequestration; Mitchell V. W.T. Grant Co., Sandra J. Pickut

Akron Law Review

SINCE 1969, AND TE DECISION in Sniadach v. Family Finance Corp.,' the confrontation between the creditor and the constitution has continued apace. Sniadach began an expansion of the measure of due process applicable to creditors' prejudgment remedies, and heralded a new era of protection for the property interests of vendee-debtors under the cloak of the fourteenth amendment. However, the most recent decision of the Supreme Court on summary prejudgment remedies, Mitchell v. W. T. Grant Co., appears to have abruptly halted that expansion and has returned judicial thinking to a concept of due process prevalent in the pre-Sniadach era. Accordingly, …

Executive Privilege: A Review Of Berger, R. H. Clark

Akron Law Review

RAOUL BERGER HAS ONCE AGAIN placed within a solidly professional framework an issue of considerable public interest and debate. As was the case with impeachment,' Berger's scholarly study on executive privilege brings to the controversy surrounding the issue a much needed analytical construct and massing of evidence which can only result in a greater level of general understanding. Although it is not accurate to suggest that Berger is neutral on the topic, since he published a significant study as far back as 1965 attacking the concept, 2 his method of massing every conceivable argument and piece of evidence on both …

Section 1983 - Eleventh Amendment - Executive Immunity; Scheuer V. Rhodes

Akron Law Review

0N APRIL 29, 1970, the Governor of Ohio called out elements of the Ohio National Guard in response to alleged civil disorders in the city of Kent, Ohio, and on the campus of Kent State University. In the course of the resulting confrontation between students and members of the Guard, four students were shot and killed. The personal representatives of the estates of three of the deceased students brought actions for damages under the Civil Rights Act of 18711 naming the Governor, the Adjutant General of the Ohio National Guard, various officers and members of the Guard, and the president …