Browsing Law Faculty Scholarship by Issue Date
Now showing 1 - 20 of 1583
Results Per Page
ItemThe Constitutionality of Sabbatarian Exemptions(Boston University Law Review, 1963) Loewy, Arnold H.On May 29, 1961, the Supreme Court in Gallagher v. Crown Kosher Super Market, and three companion cases, sustained the constitutionality of the Massachusetts Sunday Closing Laws. In so doing, it rejected the claim that the laws unreasonably prohibited the free exercise of religion by not containing a blanket Sabbatarian exemption. Subsequent to Gallagher, several bills have been introduced in the Massachusetts Senate and House of Representatives which would exempt Sabbatarians from all of the Sunday prohibitions embodied in Mass. Gen. Laws Ann. Ch. 136, § 5. It is the purpose of this note to consider the constitutionality of such an exemption. ItemThe Supreme Court Revisits Palko v. Connecticut(1966) Loewy, Arnold H.On April 4, 1966, the Supreme Court granted certiorari in Cichos v. Indiana to consider the following questions: 1. Is the Fifth Amendment’s protection against double jeopardy of such basic characteristic in law as to be immune, under the Fourteenth Amendment, from state encroachment? 2. Should Palko v. Connecticut be reconsidered and overruled? Inasmuch as Palko held that the Fifth Amendment’s protection against double jeopardy was not immune from state encroachment, the two questions are really one. The most important aspect of constitutional adjudication is not the ultimate disposition of the case, but the methodology employed to reach that disposition. The methodology herein advocated is that each state procedure alleged to be inconsistent with due process be adjudged on its merits rather than prejudged by a case involving another procedure no more than remotely related to the one under consideration. ItemThe Military "Search Warrant"(American University Law Review, 1966) Larkin, Murl A.Although it may be arguable that the guarantee of the Fourth Amendment to the federal constitution that people shall be secure against unreasonable searches and seizures is not a limitation upon the power granted to Congress to “make Rules for the Government and Regulation of the land and naval Forces,” current military law is relatively unconcerned with such a concept. Professor Larkin traces the history of this unconcern. ItemAfter-Acquired Title in Texas: Part One(Southwestern Law Journal, 1966) Hemingway, Richard W.The so-called "doctrine of after-acquired title" deals with the rights of a grantee (and his successors) who accepts a deed or other conveyance from a grantor then without title, but who thereafter acquires it. The problem asserts itself in many areas of the law: mortgages and other voluntary liens on real property, conveyances and voluntary liens by a married woman of her separate property, conveyances and liens on the homestead community property by the husband, rights of adverse possessors claiming through deeds, rights of creditors of the grantor, and the interrelation of rights of a purchaser as affected by the recording acts. Professor Hemingway explores this thorny problem, beginning with its origins in Texas, and covers the current trends in the case law. ItemAfter-Acquired Title in Texas: Part Two(Southwestern Law Journal, 1966) Hemingway, Richard W.The so-called "doctrine of after-acquired title" deals with the rights of a grantee (and his successors) who accepts a deed or other conveyance from a grantor then without title, but who thereafter acquires it. Professor Hemingway continues his survey of the topic and adds in some more complicated aspects of after-acquired title. ItemThe Old Order Changeth – But for Whom?(1967) Loewy, Arnold H.In this article discussing the prospective, partially prospective, and retroactive application of new criminal procedure rules, Professor Arnold H. Loewy discusses the various constitutional implications of applying new Court rules to past, present, and future factual situations. He analyzes the application of Miranda v. Arizona and Johnson v. New Jersey, pointing out the impact of each application timing decision on the balanced rights of the states and accused citizens. He also looks at the difficulties inherent in applying new rules at each stage of the criminal process. ItemImplied Warranties in Leases: The Need for Change(Denver Law Journal, 1967) Skillern, Frank F.“Caveat emptor” as it is applied to leases under which the lessee may use the demised premises for an express purpose is the focal point of this article. The rule denies the lessee relief, either as a defense or as a cause of action, for additional costs of repair or construction if the premises are structurally unfit for the expressed purpose or if changes must be made in the premises to conform to local codes relating to that purpose. Mr. Skillern discusses the development of the rule in these Situations, the limited remedies which are available to a lessee, and the inadequacies of these remedies in modern leasing transactions. He urges that changes in the nature of leasing transactions necessitate that courts or legislatures consider implying warranties of fitness for a particular purpose and of conformity to building codes in such leases. Mr. Skillern concludes by analyzing the nature of the proposed warranties, the prerequisites for their implication, and the new remedies which would be available if they were breached. ItemFree Speech: The "Missing Link" in the Law of Obscenity(Journal of Public Law, 1967) Loewy, Arnold H.Q: Aren’t you glad that the Supreme Court has recognized that obscenity is not speech within the meaning of the first amendment and as such is not constitutionally protected? A: I most certainly am not! It seems to me that the Court’s failure to recognize obscenity as free speech is the “missing link” in the law of obscenity. This article is a dialogue between these opposing positions on the wisdom of the Supreme Court’s refusal to classify obscenity as speech under the first amendment. The first section of the article proposes that “The Scales of Justice Will Not Balance with False Weights on Either Side.” Section two discusses potential state interests in banning obscene material, while section three discusses potential Constitutional interests in freedom of speech. Section four urges the Court to strike a proper balance between potential state interests in banning obscene material and freedom of speech. Professor Loewy concludes by urging the Supreme Court to recognize obscenity as speech. As a form of speech, Loewy contends that obscenity should be constitutionally protected unless some legitimate state interest justifies its infringement. ItemIntroduction to Symposium on the Individual and the Law(Denver Law Journal, 1967) Skillern, Frank F.Professor Skillern introduces the Denver University Sturm College of Law Symposium on Selected Problems on Law and the Individual. The Symposium articles discuss specific areas of law from the perspective of individuals affected by it. Emphasis is placed not upon what the law prescribes, but rather on how it affects the individual concerned. The areas of law discussed include child abuse legislation, the juvenile court system, aid to dependent children, unemployment compensation, administrative procedure, child custody, and the role of the personal injury attorney. ItemUse, Misuse, and Reuse of the Jury(Insurance Counsel Journal, 1967) Amandes, Richard B.Richard B. Amandes, dean of the Texas Tech University School of Law, discusses how proper interaction with a jury, beginning with the jury summons process, can lead to more favorable verdicts. To do so, Dean Amandes uses comparative experiences with Washington state and Texas juries, pointing out the strengths and weaknesses of each system. ItemCasenote, Constitutional Rights of Majority Not Violated by Action of Commissioner of Education to Reduce Racial Imbalance(Utah Law Review, 1967) Bohling, William B.Professor Bohling reviews the holding and significance of Olson v. Board of Educ., 250 F. Supp. 1000 (E.D.N.Y.), appeal dismissed on other grounds, 367 F.2d 565 (2d Cir. 1966). ItemUpgrading and In-Service Training for the Judiciary(Insurance Counsel Journal, 1967) Smith, Justin C.Professor Smith highlights the evolution of continuing judicial education and its impact on legal education in the U.S. ItemRecent Developments in Bankruptcy(Missouri Law Review, 1967) Bateman, Hal M.Although bankruptcy deals primarily with the interpretation and application of the Bankruptcy Act, which was enacted in 1898, significant new developments continue to occur which are of importance both to the bankruptcy specialist and to the general practitioner. This results from the interplay of repeated amendments to the Act by Congress, new authoritative decisions on points of previous uncertainty in the interpretation of the Act, and the steady evolution of new commercial forms and new factual situations. This article will review several of the more important recent developments which illustrate each of these factors. ItemSex Publication and Moral Corruption(William & Mary Law Review, 1967) Elias, Erwin A.“The danger of influencing a change in the current moral standards of the community, or of shocking or offending readers, or of stimulating sex thoughts or desires apart from objective conduct, can never justify the losses to society that result from interference with literary freedom.” The purpose of this article is to examine this proposition and its ramifications. If, in fact, the state does not have a legitimate interest in protecting its citizens from being shocked and offended, or sexually aroused, or morally corrupted, what conceivable purpose can the state have in attempting to regulate and suppress publications because of the manner in which they deal with sex? The relationship between publications and overt conduct has not been and probably can never be established, at least not in any clear and present danger sense. On the other hand if the state does have an interest in, for example, maintaining the moral standards of the community, how has this interest been accommodated by the Court with the First Amendment values involved? Has this accommodation been realistic? ItemPost-Bankruptcy Transfers: An Old Problem in Need of a New Solution(Cornell Law Review, 1968) Bateman, Hal M.In a perfect world, a notice of bankruptcy would reach each creditor instantaneously and prevent any further disposition of the debtor’s assets. Unfortunately, we do not live in a perfect world and instead Congress has enacted sections 70a, 70d, and 21g of the Bankruptcy Act. In this article, Professor Bateman evaluates the intended and unintended consequences of these sections and provides a solution to fix the problems of a well-intended statute. ItemAnnual Survey of Wills and Trusts(Southwestern Law Journal, 1968) Hemingway, Richard W.This Article is intended to survey cases in the wills and trusts area decided by the Texas courts since the last Annual Survey issue, and covers cases appearing in volumes 406 through 417 of the South Western Reporter, Second Series. No attempt has been made to report all the cases, and only those which are deemed significant or of special interest have been included. The two most significant cases of the preceding year were In the Matter of the Guardianship of Neal' concerning gifts by a guardian, and Thorman v. Carr dealing with allocation of trust income. ItemComment, State Preemption and the Exercise of Municipal General Welfare Powers : A City's Anti-Prostitution Ordinance(Utah Law Review, 1968) Bohling, William B.Utah Supreme Court Review -1967 will offer critical analyses of recent noteworthy cases. Prior to this issue, the Utah Law Review annually has surveyed decisions rendered by noting significant developments within a topical framework. Such an approach, which presented the most important opinions under each heading, demanded a broad, cursory treatment of supreme court case law. The Utah Supreme Court Review provides a more restrictive selection, but greater in-depth analysis of decisions representing timely legal problems and illustrating applications of the court's methods of reasoning which may bear on analogous cases arising in the future. Thus, a narrower focus has been substituted for an attempt to marshal the court's work into a survey. ItemReview of A Report on the Consumer Survey of New Serial Titles Made for the Joint Committee on the Union List of Serials, Inc., and the Library of Congress(Law Library Journal, 1968) Olm, Jane G.Professor Olm reviews A.F. Kuhlman’s A Report on the Consumer Survey of New Serial Titles Made for the Joint Committee on The Union List of Serials, Inc., and the Library of Congress. [n.p.] 1967. Pp. vii, 84.