Digital Commons Network^™

The Rehnquist Court And Criminal Procedure, Stephen F. Smith

Stephen F. Smith

No abstract provided.

The Last Days Of Erastianism: Forms In The American Church-State Nexus, Robert E. Rodes

Robert Rodes

In the long history of Christendom, an Erastian view of the relation between Church and State has existed in tension with a High Church view. This paper explores the current state of our current shopworn Erastian-like church-state nexus and considers what forces may bring a more relevant and effective institutional High Church witness into being. The fact that the United States has an Erastian-like church-state relation is borne out in a line of cases involving the judicial resolution of intra-church disputes and the effect to be given the mandates of ecclesiastical authority. It is also borne out in legislative and …

Religious Education And The Historical Method Of Constitution Interpretation - A Review Article, Robert Rodes

Robert Rodes

No abstract provided.

H. Jefferson Powell On The American Constitutional Tradition: A Conversation, Thomas L. Shaffer, John H. Robinson

John H. Robinson

No abstract provided.

Employment Discrimination: Recent Developments In The Supreme Court (Symposium: The Supreme Court And Local Government Law: The 1992-93 Term), Eileen Kaufman

Eileen Kaufman

At a symposium entitled, “The Supreme Court and Local Government Law; The 1992/93 Term”, Professor Eileen Kaufman spoke about the cases involving employment discrimination that were decided during that particular Term, Hazen Paper Company v. Biggins and St. Mary's Honor Center v. Hicks. While Hazen is an age discrimination case and St. Mary's is a Title VII case, they can be viewed as companion cases which serve to explain what an employment discrimination plaintiff must now establish when attempting to prove disparate treatment by indirect evidence. By way of preview, suffice it to say that plaintiff's task has been made …

November 13, 2013: Huffington Post Blog Entry On Legislative Prayer, Bruce Ledewitz

Hallowed Secularism

Blog post, “Huffington Post Blog Entry on Legislative Prayer“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

(In)Comunicação E Cidadania, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Há problemas complexos na comunicação social de um tempo regido por uma Constituição formal democrática e social e simultaneamente dominado na realidade, no plano da comunicação social, por poderosas máquinas informativas ou desinformativas, seja administradas pelo Estado, seja por grupos económicos privados. Emergem assim atores sociais e fazedores de opinião e temas de discussão (ou não) que têm muito tempo de antena, por razões que não são claras. Porquê esses e não outros? E ficam na penumbra pessoas e temas cuja importância aconselharia a que fosse dado espaço. O presente artigo aponta algumas das disfunções da comunicação que pode realmente …

Is Medicaid Constitutional?, Timothy Stoltzfus Jost

Timothy S. Jost

Not available.

The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter

Judith L Ritter

By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key portion …

Why Scalia Should Have Voted To Overturn Doma, Andrew Koppelman

NULR Online

No abstract provided.

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas

Joseph Thomas

Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.

Death is different as a punishment. But does discrimination …

A Deal Is A Deal: Plea Bargains And Double Jeopardy After Ohio V. Johnson, Philip Chinn

Seattle University Law Review

The Double Jeopardy Clause provides that no person will “be subject for the same offence to be twice put in jeopardy of life or limb.” On March 10, 2004, Pedro Cabrera made a statement that cost him fourteen years of his life: he proclaimed his innocence. The court accepted this plea and ordered a finding of guilty with a recommended sentence of six years. However, during an exchange that followed, Mr. Cabrera asserted that he was actually innocent but that he preferred “to take the time” instead of proceeding to trial. The judge then refused to accept Mr. Cabrera’s guilty …

State Session Freeze Laws—Potential Solution Or Unconstitutional Restriction?, Dru Swaim

Seattle University Law Review

Since the Citizens United decision in 2010 reduced Congress’s ability to constitutionally regulate money in elections, proponents of campaign finance reform have looked for alternative ways to achieve the goals of greater transparency and reduce the amount of money spent in federal elections. In the three years since Citizens United, the amount of money spent in federal campaigns has increased exponentially. In fact, the total amount of money spent in federal elections has nearly doubled since 2000. Citizens United represents a serious blow to the traditional methods used to restrict the amount of money in politics: limitations on the amounts …

The American Dream: Daca, Dreamers, And Comprehensive Immigration Reform, Heather Fathali

Seattle University Law Review

On June 15, 2012, President Obama made an announcement that changed the lives of millions. Effective immediately, the Obama administration would implement a new program—what would come to be known as Deferred Action for Child-hood Arrivals (DACA)—offering eligible undocumented young people both a two-year respite from the haunting possibility of deportation as well as the eligibility to apply for employment authorization. While millions were elated by the President’s announcement, he also faced harsh criticism. Many claimed that his action exceeded federal statutory limits, exceeded his Executive powers, and usurped congressional authority. Still others, anxious to see comprehensive immigration reform implemented, …

The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter

Seattle University Law Review

By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key portion …

Academic Freedom And Professorial Speech In The Post-Garcetti World, Oren R. Griffin

Seattle University Law Review

Academic freedom, a coveted feature of higher education, is the concept that faculty should be free to perform their essential functions as professors and scholars without the threat of retaliation or undue administrative influence. The central mission of an academic institution, teach-ing and research, is well served by academic freedom that allows the faculty to conduct its work in the absence of censorship or coercion. In support of this proposition, courts have long held that academic freedom is a special concern of the First Amendment, granting professors and faculty members cherished protections regarding academic speech. In Garcetti v. Ceballos, the …

Mania: The Lives, Literature, And Law Of The Beats, Ronald K.L. Collins, David M. Skover

Seattle University Law Review

The Beats introduced the counter-culture to twentieth century America. They were the first to break away from Eisenhower conformity, from the era of the Man in the Grey Flannel Suit. With them came an infusion of rebel spirit—a spirit that hearkened back to Walt Whitman—in their lives, literature, and law. Their literature spawned a remarkable chapter in American obscenity law. The prosecution of Allen Ginsberg’s epic poem, Howl, was the last of its kind in this nation; and the prosecution of William Burroughs’s Naked Lunch is one of the last times that a novel was charged as obscene. The First …

November 8, 2013: Legislative Prayer, Bruce Ledewitz

Hallowed Secularism

Blog post, “Legislative Prayer“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Hollingsworth V. Perry: Standing Over Constitutional Rights, Caitlin E. Borgmann

City University of New York Law Review

No abstract provided.

The Scope Of Congress's Thirteenth Amendment Enforcement Power After City Of Boerne V. Flores, Jennifer Mason Mcaward

Jennifer Mason McAward

Section Two of the Thirteenth Amendment grants Congress power “to enforce this article by appropriate legislation.” In Jones v. Alfred H. Mayer Co., the Supreme Court held that Section Two permits Congress to define the “badges and incidents of slavery” and pass “all laws necessary and proper” for their abolition. Congress has passed a number of civil rights laws under this understanding of its Section Two power. Several commentators have urged Congress to expansively define the “badges and incidents of slavery” and use Section Two to address everything from racial profiling to discrimination on the basis of gender and sexual …

Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward

Jennifer Mason McAward

This essay explores the proper scope of Congress’s power to enforce the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. It reviews the historical context surrounding the drafting of the Thirteenth Amendment enforcement power, and it points to structural constitutional considerations relevant to the understanding of that power. It concludes by suggesting some related topics that deserve further exploration.

Settled Versus Right: Constitutional Method And The Path Of Precedent, Randy J. Kozel

Randy J Kozel

No abstract provided.

Avoiding Constitutional Questions As A Three-Branch Problem, William K. Kelley

William K. Kelley

This article criticizes the cardinal rule of statutory construction known as the avoidance canon - that statutes must be interpreted to avoid raising serious constitutional questions - as failing to respect the proper constitutional roles of both Congress and the Executive. It argues that the avoidance canon in practice cannot be grounded in legislative supremacy, which is the common justification for it offered by the Supreme Court, because it assumes without foundation that Congress would always prefer not to come close to the constitutional line in enacting statutes. Instead, the avoidance canon creates pressure for courts to adopt statutory meanings …

The Export Clause And The Constitutionality Of A Cap And Trade Mitigation Policy For Carbon Dioxide, Ross Astoria

Ross Astoria

The Export Clause of the Constitution prohibits the taxing of “Articles exported from any State.” In this paper I examine the effect that Export Clause jurisprudence might have on the choice of national carbon dioxide mitigation policies. I conclude that it is unlikely that a “downstream” price on carbon dioxide emissions could include exported hydrocarbons. One corollary is that, since cap and trade policies are “downstream” pricing mechanism, it would be difficult, perhaps impossible, to craft cap and trade so as to cover exported hydrocarbons. In contrast, an “upstream” carbon tax does not suffer from this constitutional infirmity. I therefore …

Religion, Division, And The First Amendment, Richard W. Garnett

Richard W Garnett

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that …

Supreme Court Wrestles With Prayer At Public Meetings, Alan E. Garfield

Alan E Garfield

No abstract provided.

Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett

Richard W Garnett

What role do religious communities, groups, and associations play - and, what role should they play - in our thinking and conversations about religious freedom and church-state relations? These and related questions - that is, questions about the rights and responsibilities of religious institutions - are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if …

The New Federalism, The Spending Power, And Federal Criminal Law, Richard W. Garnett

Richard W Garnett

It is difficult in constitutional-law circles to avoid the observation that we are living through a revival of federalism. Certainly, the Rehnquist Court has brought back to the public-law table the notion that the Constitution is a charter for a government of limited and enumerated powers, one that is constrained both by that charter's text and by the structure of the government it creates. This allegedly revolutionary Court seems little inclined, however, to revise or revisit its Spending Power doctrine, and it remains settled law that Congress may disburse funds in pursuit of ends not authorized explicitly in Article I …

Judicial Enforcement Of The Establishment Clause, Richard W. Garnett

Richard W Garnett

This paper is the author’s contribution to a roundtable conference, held in October of 2008 at Notre Dame Law School, devoted to Prof. Kent Greenawalt’s book, Religion and the Constitution: Establishment and Fairness. It is suggested that Greenawalt’s admirably context-sensitive approach to church-and-state questions might lead us to think that the best course for judges is to find (somehow) some bright-line, on-off “rules” and “tests”, constructed to identify and forbid the most obvious violations of the Religion Clause’s core (whatever that is), and to give up on -- or, perhaps, “underenforce” -- the rest.