most comprehensive articles (or notes) appears in 40 Notre Dame Law., P. 1 (Dec. 1964)[1] The article states:
"According to the opinion of Mr. Justice Brennan in Jacobellis v. Ohio, the Supreme Court itself must weigh and decide the issues in obscenity cases; it must decide whether the disputed material is obscene; and it must decide this according to the standards of the community, that is, the whole country—all 50 States. In other words, the Court must apply a national standard. This note is addressed primarily to that opinion."
After pointing out that, though critical, the writers intend nothing derogatory toward the court or its individual members, it is further stated:
"Indeed, it is precisely because of our respect that we venture to suggest what seems to promise a way out of the total confusion which envelopes the problem of obscenity as a result of the opinions in some recent Supreme Court cases and the entire absence of opinion in others."
The article then notes that Justice Brennan sets out in his opinion that the Supreme Court must ultimately decide when a particular work is obscene, and the article poses the question of the logic of the court itself deciding obscenity cases when it does not decide for itself matters of equal or greater importance; for instance, whether a convicted murderer, when firing a fatal shot, was capable of distinguishing right from wrong, or was under a compulsion so strong. that he was without power to resist it. These matters, of course, are determined by a jury. It is the opinion of the writers of the article that the Supreme Court, in deciding that it is the duty of the court to make its own independent decision of the issues in obscenity cases, has committed itself to an impossible task.
- ↑ The note was prepared by Joseph O'Meara, Dean of the Notre Dame Law School, and Thomas L. Shaffer, Assistant Professor of Law of the Notre Dame Law School.
