Volume 22, Issue 2
Volume 22, Number 2 Winter 1995
STATISTICAL ABSTRACT
Supreme Court Voting Behavior: 1993 Term (page 269)
By Richard G. Wilkins, James L. Kimball III, Scott M. Petersen
This Article attempts, through statistical analysis, to identify the ideological leanings of the United States Supreme Court during the October 1993 Term. The Court adopted a more liberal approach to civil litigation involving state and federal governments, but it remained relatively conservative in its approach to criminal cases a statutory civil rights issues. Justice Kennedy emerged as the Term's most influential member in cases that were decided by a one-Justice majority; he was a member of the majority in all but one of the cases so decided. Justice Souter continued his gravitate to the liberal pole of the Court, and Justice Ginsburg, in her first Tenn on the Court generally aligned herself with the more liberal members of the Court. The Term also saw some members of the Court reorient themselves in First Amendment and civil litigation issues. This was probably due, at least in part, to the nature of the agenda pursued by the new Solicitor General under President Clinton.
ESSAY
Exercising the Amendment Power to Disapprove of Supreme Court Decisions: A Proposal for a "Republican Veto" (page 325)
By Thomas E. Baker
Supreme Court Justices, in their role as interpreters of the Constitution, have often determined public policy. Professor Baker, however, suggests that Congress should have a "veto" over Supreme Court decisions where the Court sets public policy contrary to congressional intent.
By using the process to amend the Constitution delineated in Article V, Congress and the state legislatures can overrule Supreme Court decisions. Through the use of veto, Congress, and not the Supreme Court, would have the final say in the interpretation of a statute and ultimately in setting public policy.
Safeguards are already in place to ensure that this power would not be overused the process of amending the Constitution is so difficult that of the thousands of proposed amendments over the past two hundred years, only twenty seven have succeeded.
This proposed "republican veto" would be consistent with the intent of the Founding Fathers. Congress would use the veto to regain the power to set public policy, while the power of interpreting the Constitution would remain in the hands of the Supreme Court.
ARTICLES
REINTERROGATION (page 359)
By Marcy Strauss
There is no clear delineation under Miranda and Edwards of when the police may reinterrogate a suspect after ordinarily invoking the right to counsel. Logically, the prohibition cannot be indefinite. This would violate the public policy of enabling law enforcement personnel to control crime. The goals of Miranda, Edwards, and related cases establish several factors to be weighed in determining when the prohibition against reinterrogation should end. These include the length of time since the right to counsel was invoked, whether the new crime is related to the one for which the right to counsel was invoked, whether the suspect was released from custody in good faith, and whether the offense for which the suspect invoked his right to counsel has been resolved. This Article suggests that only when there is a break in custody and sufficient time has passed should the police be allowed to reinterrogate.
When Juries Meet the Press: Rethinking the Jury's Representative Function in Highly Publicized Cases (page 405)
By Kenneth B. Nunn
The increasing media saturation of society has altered the traditional roles and function of the jury in criminal trials. In severa recent highly-publicized trials, most notably the Reginald Denny beating case, the jurors have been asked to publicly defend and explain their verdicts. In the past, jury verdicts were accepted as legitimate if the jury was representative of their community. Now, however, it seems that a jury must also be representative to their communities.
This new representative function of the jury has profound implications for the more traditional functions of the jury. For example, what effect does the new representative function have on the jury's traditional fact-finding function? Moreover, how will the prospect of intense media-coverage affect the willingness of competent people to serve on a jury? Finally, what impact would requiring juries to explain their verdict have on the defendant's right to a fair trial?
Professor Kenneth Nunn examines both the traditional notions of jury representativeness and the emergence of the new representative function. Professor Nunn also analyzes the effects of the new representative function on the jury's other duties. Professor Nunn concludes that while the new representative functions may provide valuable educational benefits, it does so at the expense of the jury's fact-finding ability.
License to Sell: Constitutional Protection Against State or Local Government Regulation of Liquor Licensing (page 441)
By Shelley Ross Saxer
A liquor license is a valuable asset to the license holder, whether it be considered a privilege or a property interest. Liquor licenses are subject to extensive state and local regulation because they trade in a product which has historically been deemed harmful to the public health, safety, welfare, and morals. Constitutional protection against regulation is available to licensees, but the extent of this protection will depend on whether or not the liquor license is considered to be a property interest. This Article examines attributes, such as the right to obtain and the right to alienate, that are attached to a liquor license under various state regulatory schemes. An analysis of these attributes may help determine whether a license will be considered property purposes of procedural due process and regulatory "taking" challenges. This Article also examines substantive due process and equal protection issues that confront liquor licensees who are subject to state or local regulatory actions that they consider to be unreasonable or unfair.
From Extreme Hardship to Extreme Deference: United States Deportation of its Own Children (page 491)
By Edith Z. Friedler
United States citizens, who are children of aliens residing unlawfully in the country, are routinely deported with their parents. The courts, exercising an extreme deference to the decisions of the agency and to the acts of Congress in the area immigration law, have abdicated their responsibilities in their role as guardians of t constitutional rights of these children. Although the courts have not granted children the same constitutional rights as those granted adults, cases involving de facto deportation of these children do not acknowledge the existence of even a procedural right due process to protect the interest of these children. The unlimited disaction bestowed by the Immigration and Nationality Act on the Attorney General and his delegates, coupled with the traditional deference to the political branches of government applied by the courts, results in an empty notion of the American citizenship for the children. This Article identifies the constitutional rights that are violated and proposes solutions that will give meaning to the word "citizenship."
NOTE
Crisis in California: Constitutional Challenges to Inadequate Trial Court Funding (page 557)
By Gabrielle Tracey Letteau
Inadequate funding of government is neither a unique, nor a new problem. Recent and severe cuts made to court budgets, however, threaten to destroy one of the three sacred branches of government. In California and elsewhere, these budgetary pressures bring into question several constitutional issues, such as whether the legislative branch may withhold funding to the detriment of a co-equal branch of government, and whether individual rights to access the courts are guaranteed under state and federal constitutions. This Note attempts to address these issues by examining the nature of the current financial crisis in California and offering suggestions for ways in which to deal with this predicament.