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Fade To Black: The Formalization Of Jackson's Youngstown Taxonomy By Hamdan And Medellin, Michael J. Turner
Fade To Black: The Formalization Of Jackson's Youngstown Taxonomy By Hamdan And Medellin, Michael J. Turner
American University Law Review
This Comment argues that the Court’s holding in Medellin modifies Jackson’s tripartite taxonomy by effectively eliminating the “zone of twilight.” By requiring a “systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,” the Court is essentially extending the first category—executive action with the express or implied authorization of Congress—to cover the middle “zone of twilight,” at odds with the very purpose of the zone. Additionally, the Comment argues that Hamdan establishes Congress’s “disabling” power in the third category, which, combined with Medellin’s interpretation, crates a new standard for Jackson’s taxonomy, one moor similar …
Symposium: The Civil Rights Roots Of Tinker's Disruption Tests, Kristi L. Bowman
Symposium: The Civil Rights Roots Of Tinker's Disruption Tests, Kristi L. Bowman
American University Law Review
This past spring marked the fortieth anniversary of Tinker v. Des Moines Independent Community School District, the landmark student speech case in which the Supreme Court held that three students were protected by the First Amendment when they wore black armbands in their Des Moines, Iowa public schools to protest the Vietnam War. Looking at Supreme Court precedent alone, it would seem as though the Tinker tests were created out of whole cloth: the substantial or material disruption, reasonable anticipation of such disruption, and rights of others tests did not have much of a basis in earlier Supreme Court decisions. …
Symposium: Tinker's Midlife Crisis: Tattered And Transgressed But Still Standing, Clay Calvert
Symposium: Tinker's Midlife Crisis: Tattered And Transgressed But Still Standing, Clay Calvert
American University Law Review
This article examines the erosion of the strength of the Supreme Court’s 1969 opinion in Tinker v. Des Moines Independent Community School District. Indicators of decline range from Justice Thomas’ stunning call in Morse v. Frederick for overruling Tinker to recent lower-court opinions using Tinker to censor off-campus expression posted on the Internet. The article explores possible reasons for the decline and abuse of Tinker and it makes suggestions for its reinvigoration. Part I highlights and analyzes other indicators of the erosion, decline, and abuse of Tinker. Part II then explores some possible reasons and explanations for the midlife crisis …
Symposium: Foot In The Door - The Unwitting Move Towards A New Student Welfare Standard In Student Speech After Morse V. Frederick, Francisco M. Negron, Jr.
Symposium: Foot In The Door - The Unwitting Move Towards A New Student Welfare Standard In Student Speech After Morse V. Frederick, Francisco M. Negron, Jr.
American University Law Review
This article discusses an emerging legal trend that may expand schools’ abilities to protect their students. It focuses on Morse v. Frederick, a 2007 decision popularly known as the “Bong Hits 4 Jesus” case in which the court held that a school principal may restrict student speech that can be reasonably viewed as promoting illegal drug use. Negron argues that when read together, the majority opinion and Justice Alito and Justice Kennedy’s concurring opinion, permit schools to regulate student expression that may threaten student welfare. Justices Alito and Kennedy sought to limit the majority’s holding to speech involving illegal drug …
Symposium: Tinker At Forty: Defending The Right Of High School Students To Wear Controversial Religious And Pro-Life Clothing, Jay Alan Sekulow, Erik M. Zimmerman
Symposium: Tinker At Forty: Defending The Right Of High School Students To Wear Controversial Religious And Pro-Life Clothing, Jay Alan Sekulow, Erik M. Zimmerman
American University Law Review
This Article argues for broad First Amendment protection for “controversial” religious and pro-life student expression. The vast majority of religious and pro-life clothing is no more likely to create an actual disturbance that substantially disrupts school functions than a peace armband worn during Vietnam, the student expression upheld in the seminal case of Tinker v. Des Moines Independent Community School District. Section I of this Article discusses several Supreme Court student speech cases with an emphasis on their applicability to situations involving high school students who wear “controversial” religious and pro-life clothing. This section argues that Tinker’s substantial disruption test—not …
Symposium: Shrinking Tinker: Students Are Persons Under Our Constitution - Except When They Aren't , Frank D. Lomonte
Symposium: Shrinking Tinker: Students Are Persons Under Our Constitution - Except When They Aren't , Frank D. Lomonte
American University Law Review
The central proposition of this Article is that the school/student relationship is a distinctive one, and that student speakers on school property stand in a fundamentally different posture than do pamphleteers on the public sidewalk. This unique relationship has been recognized by the courts, but only selectively, where the uniqueness works to the disadvantage of the speaker. It is time that courts acknowledge that, because students are “captive” in school for the best hours of their day, and because students have a legally enforceable right to be on school grounds for purposes that expressly include the exchange of ideas, student …
Symposium: Oiling The Schoolhouse Gate: After Forty Years Of Tinkering With Teachers' First Amendment Rights, Time For A New Beginning , Alexander Wohl
Symposium: Oiling The Schoolhouse Gate: After Forty Years Of Tinkering With Teachers' First Amendment Rights, Time For A New Beginning , Alexander Wohl
American University Law Review
This Article will examine how (and how far) we have fallen from the legal precedent and educational principles behind Tinker, specifically the increasingly remote standards courts have used to chip away (and sometimes sledgehammer) the speech rights of teachers. To this end, the Article will consider some of the unique and fundamental characteristics associated with a profession that has at its core the mission of encouraging speech, raising questions, and teaching the ability to think—in short, “expressive activities.” It will also look at how the increasingly restrictive standards do not reflect fully the challenges posed by the advent of new …
Symposium: Reflections On Tinker, Tinker Turns 40: Freedom Of Expression At School And Its Meaning For American Democracy - April 16, 2009 - Symposium: Foreword , Mary Beth Tinker
Symposium: Reflections On Tinker, Tinker Turns 40: Freedom Of Expression At School And Its Meaning For American Democracy - April 16, 2009 - Symposium: Foreword , Mary Beth Tinker
American University Law Review
Mary Beth Tinker recounts her upbringing and her family’s involvement in important issues of their day. Tinker discusses how her family’s commitment to social justice was shaped by her parents religious values, and how this shaped their commitments to civil rights, ultimately leading to their protesting ongoing injustices. In particular, Tinker discusses how she, her siblings, and friends wore black armbands calling for a Christmas Truce in the Vietnam War and how the case that went before the Supreme Court was one of a series of events in her family’s journey for equality.
Symposium: No Enclaves Of Totalitarianism: The Triumph And Unrealized Promise Of The Tinker Decision , Jamin B. Raskin
Symposium: No Enclaves Of Totalitarianism: The Triumph And Unrealized Promise Of The Tinker Decision , Jamin B. Raskin
American University Law Review
The Supreme Court's decision in Tinker v. Des Moines Independent Community School District forty years ago did for the ideal of expressive freedom in America's public schools what Brown v. Board of Education did for the ideal of racial equality. It made a core value of the Bill of Rights spring to life for young people facing authoritarian treatment at the hands of adult officials running their school systems. By privileging the right of students to engage in passionate political communication over the school's interest in maintaining discipline or the community’s interest in maintaining pro-war consensus, the Tinker decision was …
Accuracy Or Fairness: The Meaning Of Habeas Corpus After Boumediene V. Bush And Its Implications On Alien Removal Orders, Jennifer Norako
Accuracy Or Fairness: The Meaning Of Habeas Corpus After Boumediene V. Bush And Its Implications On Alien Removal Orders, Jennifer Norako
American University Law Review
Part One of this Comment will examine the developments of the writ of habeas corpus throughout the history of the United States, beginning with the importance the Founding Fathers placed on the writ. This section will also examine the recent changes in federal court review of alien removal orders, beginning with the 1996 legislation and continuing with the REAL ID Act, along with the federal courts’ responses to those acts. Part Two will then examine the majority opinion in Boumediene v. Bush, addressing the meaning and purpose that Justice Kennedy attached to the writ of habeas corpus and the analytical …
Say Cheese! Examining The Constitutionality Of Photostops, Molly Bruder
Say Cheese! Examining The Constitutionality Of Photostops, Molly Bruder
American University Law Review
No abstract provided.
Enacting A Reasonable Federal Shield Law: A Reply To Professors Clymer And Eliason, James Thomas Tucker, Wermiel
Enacting A Reasonable Federal Shield Law: A Reply To Professors Clymer And Eliason, James Thomas Tucker, Wermiel
American University Law Review
No abstract provided.
The Problems With The Reporter's Privilege, Eliason D. Eliason
The Problems With The Reporter's Privilege, Eliason D. Eliason
American University Law Review
No abstract provided.
Foreword: Left Out In The Cold - Welcome Remarks, Nadine Strossen
Foreword: Left Out In The Cold - Welcome Remarks, Nadine Strossen
American University Law Review
No abstract provided.
Transcript: Left Out In The Cold? The Chilling Of Speech, Association, And The Press In Post-9/11 America , American University Law Review
Transcript: Left Out In The Cold? The Chilling Of Speech, Association, And The Press In Post-9/11 America , American University Law Review
American University Law Review
No abstract provided.
Reforming Fourth Amendment Privacy Doctrine, Jim Harper
Reforming Fourth Amendment Privacy Doctrine, Jim Harper
American University Law Review
No abstract provided.
Deep Background: Journalists, Sources, And The Perils Of Leaking, William E. Lee
Deep Background: Journalists, Sources, And The Perils Of Leaking, William E. Lee
American University Law Review
No abstract provided.
The Espionage Act And National Security Whistleblowing After Garcetti, Stephen I. Vladeck
The Espionage Act And National Security Whistleblowing After Garcetti, Stephen I. Vladeck
American University Law Review
Should government employees ever have a right to disseminate classified national security information to the public? As a general matter, of course, the answer is "no." It is necessarily tautological that the central purpose of classifying information is to keep that information secret. But what if the information pertains to what we might describe as "unlawful secrets," and the individual in question has exhausted all possible non-public remedies - and to no avail? Are there any circumstances in which the law enables the government employee to come forward? Should there be? As this Essay suggests, because of the broad language …
Does The Supreme Court Still Matter?, Timothy B. Dyk
Does The Supreme Court Still Matter?, Timothy B. Dyk
American University Law Review
No abstract provided.
Speaking Against Norms: Public Discourse And The Economy Of Racialization In The Workplace, Terry Smith
Speaking Against Norms: Public Discourse And The Economy Of Racialization In The Workplace, Terry Smith
American University Law Review
Free speech controversies erupt from reactions to outlier voices, and these voices are often those of subordinated citizens such as racial minorities. Employing the tools of narrative, interviews with litigants and subjects, and interdisciplinary analysis of case law, Professor Terry Smith probes whether the social inequality of government employees of color affects the rigor of the First Amendment protection afforded their speech. Professor Smith argues that all public sector employees lack sufficient protection because their speech typically does not receive the highest constitutional scrutiny and because of the Supreme Court's recent decision in Garcetti v. Ceballos, which stripped public sector …
Arbitrary And F^@#$*! Capricious: An Analysis Of The Second Circuit's Rejection Of The Fcc's Fleeting Expletive Regulation In Fox Television Stations, Inc. V. Fcc (2007), Justin Winquist
American University Law Review
No abstract provided.
Blocking Access To Assets: Compromising Civil Rights To Protect National Security Or Unconstitutional Infringement On Due Process And The Right To Hire An Attorney? , Danielle Stampley
Blocking Access To Assets: Compromising Civil Rights To Protect National Security Or Unconstitutional Infringement On Due Process And The Right To Hire An Attorney? , Danielle Stampley
American University Law Review
No abstract provided.
Big Boi, Dr. Seuss, And The King: Expanding The Constitutional Protections For The Satirical Use Of Famous Trademarks , Aaron Jaroff
Big Boi, Dr. Seuss, And The King: Expanding The Constitutional Protections For The Satirical Use Of Famous Trademarks , Aaron Jaroff
American University Law Review
No abstract provided.
Vicarious Criminal Liability And The Constitutional Dimensions Of Pinkerton, Alex Kreit
Vicarious Criminal Liability And The Constitutional Dimensions Of Pinkerton, Alex Kreit
American University Law Review
This article considers what limits the constitution places on holding someone criminally liable for another's conduct. While vicarious criminal liability is often criticized, there is no doubt that it is constitutionally permissible as a general matter. Under the long-standing felony murder doctrine, for example, if A and B rob a bank and B shoots and kills a security guard, A can be held criminally liable for the murder. What if, however, A was not involved in the robbery but instead had a completely separate conspiracy with B to distribute cocaine? What relationship, if any, does the constitution require between A's …
The "High-Crime Area" Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis [Pdf], Andrew Guthrie Ferguson, Damien Bernache
The "High-Crime Area" Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis [Pdf], Andrew Guthrie Ferguson, Damien Bernache
American University Law Review
This article proposes a legal framework to analyze the "high crime area" concept in Fourth Amendment reasonable suspicion challenges. Under existing Supreme Court precedent, reviewing courts are allowed to consider that an area is a "high crime area" as a factor to evaluate the reasonableness of a Fourth Amendment stop. See Illinois v. Wardlow, 528 U.S. 119 (2000). However, the Supreme Court has never defined a "high crime area" and lower courts have not reached consensus on a definition. There is no agreement on what a "high-crime area" is, whether it has geographic boundaries, whether it changes over time, whether …
Resolved, Or Is It? The First Amendment And Giving Money To Terrorists, Jeff Breinholt
Resolved, Or Is It? The First Amendment And Giving Money To Terrorists, Jeff Breinholt
American University Law Review
No abstract provided.
Extraordinary Rendition: The Price Of Secrecy, Louis Fisher
Extraordinary Rendition: The Price Of Secrecy, Louis Fisher
American University Law Review
No abstract provided.
The Constitutional Right To Watch Television: Analyzing The Digital Switchover In The Context Of The First Amendment , Eugene Ho
American University Law Review
No abstract provided.
Envisioning The Constitution , Thomas P. Crocker
Envisioning The Constitution , Thomas P. Crocker
American University Law Review
If one of the more persistent problems of constitutional interpretation, particularly of the Bill of Rights, is that we lack a clear view of it, then it would appear that how we see the Constitution is as important as how we read it. What clauses we see as connected in order to form comprehensive values, such as federalism or rights protections, are not so much products of constitutional interpretation as constitutional vision. To obtain a view of the Constitution, we have to do more than derive semantic meaning from diverse articles and clauses. To have a vision of the Constitution …
Final Salute To Lost Soldiers: Preserving The Freedom Of Speech At Military Funerals, Andrea Cornwell
Final Salute To Lost Soldiers: Preserving The Freedom Of Speech At Military Funerals, Andrea Cornwell
American University Law Review
This Comment argues that RAFHA, as currently written, cannot stand in light of First Amendment jurisprudence. Part I reviews the history and development of relevant free speech case law and restrictions on expression, including the recent trend in the states of passing legislation similar to RAFHA. Part II assesses the Act’s constitutionality against this background. First, Part II contends that the statute is a content-based restriction of free speech and is thus subject to strict scrutiny. Second, even if deemed content neutral, the Act could not survive the courts’ intermediate scrutiny. Finally, this Comment reasons that even if able to …