Compelled Expression: Maynard v. Wooley

In 1969, the New Hampshire legislature enacted a law requiring that the state motto, Live Free or Die, be displayed on all license plates for noncommercial vehicles. Many individuals in New Hampshire objected to the motto for various religious or philosophical reasons, and several decided to obliterate the motto by placing tape or painting over it. After numerous prosecutions under the license plate defacement statute, the constitutionality of the law was challenged as it applied to the obliteration of the motto. In 1972, the New Hampshire Supreme Court in State v. Hoskin held that the law did not violate the first amendment freedom from compelled expression as set forth in Board of Education v. Barnette because the display of the motto on a motorist\u27s license plate was not an affirmation of his personal beliefs. Four years later, in Maynard v. Wooley, the constitutionality of the law was again examined. This time the three-member federal district court focused on the communicative aspect of the reflective red tape used by the Maynards to obliterate the motto, and held that the act of covering up the motto warranted first amendment protection as symbolic speech. After balancing first amendment considerations against countervailing state interests, the court issued an injuction against future enforcement of the statute against the Maynards. The court declined to pass on an argument similar to that raised in State v. Hoskin relating to the right to be free from compelled expression. The decisions reached in Hoskin and Maynard leave unsettled the right of individuals to be free from certain forms of compelled expression. This Note analyzes the scope of this right as it has been articulated in Barnette and the cases dealing with symbolic speech. It also analyzes the related question dealing with the validity of using state authority to compel individual expression

Bakke, Lochner, and Law School: The Nobility Clause Versus a Republican Form of Medicine

Alan Bakke, an unsuccessful medical school applicant, filed suit challenging the constitutionality of the minority admissions program administered by the Medical School of the University of California at Davis. The practice of reserving sixteen special places for minority students out of a total of 100 positions in the entering class, Bakke contended, constituted a denial of the equal protection of the laws guaranteed by the fourteenth amendment to the United States Constitution. Bakke\u27s suit afforded the justices of both the California Supreme Court and the United States Supreme Court a unique opportunity to examine the substantive nature of the equality guaranteed by the federal Constitution. Unfortunately, none of the justices accepted the invitation. The justices\u27 failure to analyze the substance of equality is a glaring one, but it is also a failure which can be put to a pedagogical use. The absence of substantive analysis illustrates the inadequacies of our law schools and the unthinking reliance upon black letter rules of law which the legal profession encourages. To a layman, the discussion of less restrictive alternatives, benign racial classifications, and remedial responses to findings of identified discrimination must seem curiously unrelated to the crucial questions of justice, equality, and fair representation which should have been the main topics of these opinions. The issue which should have been the focus of discussion in Bakke concerns the clash between the twin ideals of meritocracy and republicanism. It is not the purpose of this article to suggest how this conflict between meritocracy and republicanism should have been resolved in the Bakke case. Instead, this article focuses on the reasons why the California and United States Supreme Court justices declined to identify and discuss the underlying issues in the case. Bakke is merely one decision. But the judicial evasion of central issues of constitutional law is a recurring phenomenon. This article seeks to explain why this disturbing phenomenon is so common. It is suggested that these judicial evasions can be attributed to the legal profession\u27s practice of masking the human realities of legal conflicts with the use of camouflaging terminology and black letter formulas for case dispositions. The failure to confront the substantive nature of equality can be attributed to our law schools\u27 failure to train jurists to heed the emotional responses of the heart

The Development and Consequences of the Good Faith Exception to the Exclusionary Rule and the Qualified Good Faith Immunity from Liability Under Section 1983

The remedies fashioned to redress violations of the fourth amendment to the United States Constitution continue to be the subject of much judicial, legislative, and scholarly inquiry. In striking the balance between the need to protect individual freedom and the need to protect society from criminal activity, the Supreme Court and Congress have developed two principal remedies for fourth amendment violations: the exclusionary rule and civil actions under 42 U.S.C. § 1983 or under theories of constitutional tort. on the development of both of these remedies it is assumed that their effectiveness is the true measure of fourth amendment liberties. The fourth amendment is a nullity if there is no effective remedy for its violation. Hence, this Comment rejects the idea that fourth amendment liberties exist independently of remedies for their violation

The Administrative Discharge: Changes Needed?

At its annual convention in 1968 the American Bar Association adopted a resolution authorizing its Special Committee on Military Justice to urge congressional action with respect to the military administrative discharge and military due process of law. In response to this urging two bills were introduced in the 91st Congress dealing with the administrative discharge of members of the Armed Forces. One was sponsored by Congressman Charles E. Bennett, (D. Fla.). Another was introduced by Senator Sam J. Ervin, (D. N.C.). The Bennett bill proposes amendments to title 10 of the United States Code to limit the separation of members from the Armed Forces under conditions other than honorable, and the Ervin bill proposes extensive amendments to the same title of the United States Code to further insure due process in the administrative discharge procedure followed by the Armed Forces. The purpose of this article is to present a survey of the existing provisions of the various branches of the Armed Forces pertaining to the administrative discharge of military personnel, and to compare and evaluate the proposed legislation

A Survey of Eastern Indian Land Claims: 1970-1979

The eastern Indian land claims are a remarkable phenomenon of jurisprudence. Unmomentous at the time of their filing, the claims have given rise to litigation attracting nation-wide attention, judicial precedent directly affecting several dozen communities on the east coast, and debates in Congress raising political and constitutional questions that go to the heart of this nation\u27s policy toward Indian tribes. From a broad perspective, this essay surveys the eastern land claims cases and highlights some of the resulting significant legal and political developments

The Burden of Proof and the Insanity Defense After Mullaney v. Wilbur

In 1970, the Supreme Court of the United States in the case of In re Winship specified an evidentiary standard of proof for criminal prosecutions as a requirement of the due process clause of the 14th amendment: Lest there remain any doubt about the constitutional stature of the reasonable doubt-standard, we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged. Five years later, in Mullaney v. Wilbur, the Court extended Winship to invalidate Maine\u27s statutory scheme of felonious homicide which required the defendant to establish by a preponderance of evidence the mitigating factor of heat of passion on sudden provocation. Under Maine law, malice or the absence of heat of passion was not an element of the crime of felonious homicide. The Supreme Court, nevertheless, required Maine to prove beyond a reasonable doubt the absence of heat of passion because it was a fact critical to criminal culpability that affected the severity of the punishment imposed. Maine\u27s new criminal code represents a legislative effort to comply with the mandate of Winship, for it declares that no person may be convicted of a crime unless each element of the crime is proved beyond a reasonable doubt. Nevertheless, Maine, like most states, continues to designate certain issues as affirmative defenses which the defendant must prove by a preponderance of the evidence in order to prevail. This Comment examines the affirmative defense of insanity in light of Winship and Wilbur. Specifically, the thesis of this Comment is that Wilbur expanded the scope of the Winship holding. The reasonable doubt standard is no longer limited to the elements of a crime as formally defined by state law. After Wilbur, any affirmative defense which imposes a persuasion burden upon the defendant is constitutionally suspect. As the First Circuit recently acknowledged, there is substantial doubt whether the Constitution permits a state to impose upon a criminal defendant the burden of proving insanity

Beaulieu v. Beaulieu: An Obituary for Lex Loci and An Approach to Interest Analysis

Clifford Beaulieu, a guest in his father\u27s automobile, was injured when the vehicle struck a telephone pole in Massachusetts. Both parties were residents of Maine. The trip had originated in Maine and was to terminate there. The son filed an action against his father in the Maine Superior Court, alleging negligent operation of the vehicle. On an agreed statement of facts, the case was reported to the Maine Supreme Judicial Court where the defendant argued for dismissal of the action on the grounds that the doctrine of lex loci delictus, the law of the place of the tort, was applicable and that the Massachusetts guest statute barred recovery. Plaintiff argued that the lex loci doctrine should be abandoned and that the court should adopt an interest analysis approach to choice-of-law issues. The court accepted the plaintiff\u27s argument and held that in tort conflicts cases Maine courts must analyze the competing governmental interests of the involved states. By adopting interest analysis, the court recognized the necessity in every conflicts case of weighing and balancing the policies of the interested states, with the result that neither the law of the forum nor the law of the place of the tort will necessarily always apply. Thus, in Beaulieu v. Beaulieu, Maine law, which imposed a full due care duty on the host, had to be applied both because all relevant governmental interests were centered in Maine and because, correspondingly, Massachusetts had no interest in applying its law to the suit. The court, in finding this approach preferable to the more mechanical traditional doctrine, overruled Maine\u27s lex loci delictus precedents. In bringing Maine conflicts law into line with the interest analysis approach first adopted by the New York courts in Babcock v. Jackson, Beaulieu became an extremely important case in Maine jurisprudence. Beaulieu, however, was a relatively simple case, and the Maine courts must now confront the more difficult task of developing a workable methodology for solving complex conflicts problems in all areas of the law

Variable Life Insurance and the Federal Securities Laws

The Securities and Exchange Commission has recently ruled that variable life insurance contracts are securities within the meaning of the Securities Act of 1933 and the Securities Exchange Act of 1934 and, therefore, subject to the registration and disclosure requirements of those acts. Perhaps more significantly, the SEC also found the Investment Company Act of 1940 and the Investment Advisers Act of 1940 applicable to companies issuing variable life insurance, but decided to exempt insurance companies from the requirements of these statutes in deference to developing state regulation. This comment explores the legal issues raised by the SEC decision

State Action and Waiver Implications of Self-Help Repossession

In Adams v. Egley, a California federal district court held the repossession sections of the Uniform Commercial Code to be unconstitutional as a denial of due process. The Adams court relied on Sniadach v. Family Finance Co., in which the Supreme Court invalidated the Wisconsin prejudgment wage garnishment law as violative of due process because property was garnished under the statute without hearing or notice to the wage-earning debtor. When Adams was decided, the scope of Sniadach was the subject of extensive judicial dispute. Since then, the Supreme Court\u27s decision in Fuentes v. Shevin has clarified the meaning of Sniadach by answering some of the questions spawned by that case. Fuentes saw Sniadach as not limited to deprivation of necessities, but as a statement of due process principles applicable to all deprivations of property. Even if the Supreme Court adopts the Adams view that nonjudicial repossession is unconstitutional or if such repossession is statutorily proscribed, the issue of contractual waiver of due process or statutory rights remains. Fuentes discussed contractual waiver without arriving at a solution for the bulk of foreseeable cases. The resolution of this problem, too, may have a profound impact on the debtor-creditor relationship, for the probable alternatives are that either a waiver inserted in the standard form contract will suffice or that waiver will be impossible in the majority of transactions. The constitutional issues of state action and contractual waiver in nonjudicial repossession will provide the focus for this discussion

Enforcement of Money Judgments and Divorce Decrees in Maine

Until recently divorce decrees in Maine were frequently enforced by capias execution, a remedy at law by which the wife or her attorney could jail the ex-husband for failure to pay money overdue in alimony, support or litigation costs. Most states use contempt proceedings whenever imprisonment is deemed an appropriate sanction in a divorce action, but in Maine a capias execution gave the aggrieved party advantages not available in a contempt petition. First, even though issuance of the capias was a matter for the court\u27s discretion, there was no requirement either in statute or in common law that the court consider a husband\u27s inability to pay as a defense. Second, the capias was issued by the court directly to the wife\u27s attorney thus giving him power to decide when to arrest the husband rather than reserving that decision to the court. In Yoder v. County of Cumberland and its companion case, Lindsey v. County of Cumberland, the Maine Supreme Judicial Court declared the divorce capias unconstitutional because it failed to protect adequately the rights of indigent husbands subject to its process. Although this note will focus primarily on divorce decrees, recent developments in criminal fine and civil debt collection will also be discussed briefly because the issues raised affect policies of divorce decree enforcement. Developments in any one of the three areas may influence the other two