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Untangling The Market-Participant Exemption To The Dormant Commerce Clause, Dan T. Coenen

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This article focuses on an important vehicle through which the modern Court has moved to protect local prerogatives: the market-participant exemption to the dormant commerce clause. The core of the Court's dormant commerce clause jurisprudence is well-settled: "The commerce clause, by its own force, prohibits discrimination against interstate commerce, whatever its form or method...” Over the past two decades, however, the Court has lifted this prohibition when states act as "market participants" rather than as "market regulators." Invoking this distinction, the Court has shielded from commerce clause attack blatant favoritism of local interests when a state or municipality buys printing …

Rhetoric And Reality In The Law Of Federal Courts: Professor Fallon's Faulty Premise, Michael L. Wells

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Richard Fallon's recent article, "The Ideologies of Federal Courts Law," [74 Va. L. Rev. 1141 (1988)] offers valuable insights into a bewildering body of Supreme Court doctrine. He effectively demonstrates the "substantial doctrinal instability" of this body of law, and also discerns a pattern amid the chaos. Fallon's treatment of the case law and the scholarship is fair-minded, meticulous, and incisive.

I disagree, however, with one aspect of Fallon's thesis. In my view, he falters when identifying sources of the discontinuity in the doctrine. In Part I of his article he argues that the decisions reflect "two sets of incompatible …

The Impact Of Substantive Interests On The Law Of Federal Courts, Michael L. Wells

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The thesis of this Article is that substantive factors exert a powerful and often unrecognized influence over the resolution of jurisdictional issues, and have done so throughout our history. The chief substantive factors at issue are the government's interest iin regulating behavior on the one hand, and the individual's interest in enforcing constitutional restraints upon government on the other. Part I of this Article examines the relationship between jurisdictional rules and substantive consequences, Part II describes the Court's conventional account of federal courts doctrine in terms of jurisdictional policy and institutional roles, and Part III shows that the reasons set …

Introduction (The Supreme Court & Local Government Law: The 1988-89 Term), Leon D. Lazer

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No abstract provided.

Terrorism, Law, And Our Constitutional Order, Christopher L. Blakesley

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We have all suffered moments of vicarious terror over the past few years as we watched news accounts of terrorist incidents, such as the downing of Pan Am Flight 103 over Lockerbie, Scotland. There, some institution, government, or group used innocent children, women, and men as fodder for their “war.” Some have claimed that the pusillanimous carnage was in retaliation for the slaughter of equivalent innocents aboard the Iranian Air Bus, similarly destroyed by American forces during the summer of 1988. Others suggested that it was committed by those interested in thwarting prospects of peace in the Middle East.

Combatting …

State Taxation And The Supreme Court, Walter Hellerstein

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The Supreme Court's outpouring of significant state tax decisions in recent years has elicited little more than a yawn from most constitutional scholars. The nation's preeminent law reviews, which once were filled with articles examining the Court's state tax opinions, pay scant attention to them today. Leading constitutional law casebooks make only passing reference to state taxation. Indeed, the Court itself has expressed ennui over the prospect of adjudicating a seemingly endless stream of state tax controversies. The lack of academic interest in the Court's state tax jurisprudence may be attributable to several factors. Matters of greater cosmic significance -- …

Section 1983, Martin A. Schwartz, Leon Lazer, George Pratt, Leon Friedman

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No abstract provided.

Is "Internal Consistency" Foolish?: Reflections On An Emerging Commerce Clause Restraint On State Taxation, Walter Hellerstein

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Before 1983, the Supreme Court had never uttered the phrase "internal consistency" in a state tax opinion. Since 1983, however, the Court has invoked the principle of "internal consistency" on four separate occasions in adjudicating the validity of state taxes under the commerce clause. Indeed, by 1987, the Court could refer almost casually to the "internal consistency" criterion as "the test ... we have applied in other contexts." The Court's talk of "internal consistency" cannot be dismissed as mere rhetoric. Three of the four taxes that have been put to the "internal consistency" test have flunked it; cases approving taxes …

The Preiser Puzzle: Continued Frustrating Conflict Between The Civil Rights And Habeas Corpus Remedies For State Prisoners, Martin A. Schwartz

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No abstract provided.

Exclusive Federal Jurisdiction For Implied Rule 10b-5 Actions: The Emperor Has No Clothes, Margaret V. Sachs

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Courts have long assumed the existence of exclusive federal jurisdiction over private actions implied from section 10(b) of the Securities Exchange Act of 1934 and rule 10b-5. The result is not only to restrict forum choice for rule 10b-5 claimants but also to generate a host of questions concerning the extent of federal authority: whether rule 10b-5 actions are exempt from the claim and issue preclusive effects of state court decisions; whether state courts can hear defenses and state-created claims that involve rule 10b-5; and whether federal courts can stay rule 10b-5 actions in deference to state court litigation. In …

Means, Ends And Original Intent: A Response To Charles Cooper, Michael Wells

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Charles Cooper believes that the ninth amendment should be read at once more broadly and more narrowly than it is today. In his view, the intent of the Framers was to cabin the power of the federal government. By taking note in the ninth amendment of rights other than those enumerated in the first eight, they sought to ensure that the national government would not exercise powers beyond those listed in the Constitution. Since the aim of the ninth amendment was to keep the federal government one of limited power, it is inappropriate to apply the amendment to the states, …

Commerce Clause Restraints On State Taxation: Purposeful Economic Protectionism And Beyond, Walter Hellerstein

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Few questions in recent years have spawned as much controversy and as little academic interest as the scope of commerce clause restraints on state tax power. The Supreme Court has handed down an extraordinary number of significant decisions addressed to the limitations the commerce clause imposes on state taxation. Yet these decisions have barely caught the eye of the nation's leading law reviews or constitutional scholars. Even those observers who have recognized the Court's renaissance of interest in the dormant commerce clause have largely confined their attention to state regulation, as distinguished from state taxation, of interstate commerce. If there …

Drugs And Small Arms: Can Law Stop The Traffic?, Christopher L. Blakesley

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Professor Blakesley presides over this panel discussion on laws combating the illegal importation of drugs and small arms, and their implications for international and domestic law.

Terrorism And The Constitution, Christopher L. Blakesley

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How do terrorism and the Iran-Contra hearings relate to the Constitution? My thesis is that there is a tendency for the executive of this or any nation to eschew even constitutionally mandated avenues of problem solving considered to be cumbersome, inefficient, or inimical to the executive’s vision of the national interest in foreign affairs. There is also a tendency to consider one’s own conduct and the conduct of one’s allies and friends to be justified when it is directed at goals deemed by the executive branch to be good. Constitutional provisions based on the checks and balances and separation of …

The Illinois Bill Of Rights And Our Independent Legal Tradition: A Critique Of The Illinois Lockstep Doctrine, Thomas B. Mcaffee

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Illinois’ highest court continues to follow the rule that courts of this state are strictly bound by Supreme Court decisions construing provisions that are substantially identical to provisions found in the Illinois Constitution. Increasingly, however, this rule has been challenged by dissenting justices who contend that it is contrary to the state’s independent legal tradition and rests upon an accurate view of the relationship between federal and state courts and their respective constitutions. These justices contend that the court may give independent attention to the provisions of the Illinois Constitution and need not slavishly adhere to decisions of the Supreme …

Shelly V. Kraemer: Herald Of Social Progress And Of The Coming Debate Over The Limits Of Constitutional Change, Thomas B. Mcaffee

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The Supreme Court's decision in Shelley v. Kraemer, the Supreme Court held unconstitutional judicial enforcement of racially restrictive covenants. If Shelley marks an important point in the progress of American race relations, it may be even more significant as a symbol of the vexing search for the boundaries between purely private and state action and, more specifically, the reach of the protections of the Fourteenth Amendment in a changing world. In this article, the author argues that Shelley can be read as a watershed decision that in a single stroke (1) eliminated the independent significance of the Supreme Court's long-adopted …

The Past And Future Of Constitutional Torts: From Statutory Interpretation To Common Law Rules, Michael L. Wells

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The cause of action for damages to redress violations of constitutional rights is now firmly established in our law. As recently as 1960, such constitutional tort suits were rare and attracted little attention from scholars. Today, they are a major part of the work of the federal courts and the academic literature is constantly growing. This change can be partly attributed to the expansion of constitutional rights in the 1960s and 1970s, and partly to the 1961 case of Monroe v. Pape. In Monroe, the Supreme Court revived a long-neglected, ninety-year-old statute, 42 U.S.C. 1983, making it the …

A Bicentennial Symposium--The Constitution And Human Values: The Unfinished Agenda, Milner S. Ball

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The participants in this Symposium share a commitment to explore the question whether law--constitutional law in particular--is one of the humanities and therefore subject to understanding, critique, conceptualization, and practice in freshly humanizing modes. These authors--lawyers, poets, philosophers, writers, activists--make no great claims for their individuals labors or their shared enterprise. They prefer instead to let the work speak for itself.

Employer And Consultant Reporting Under The Lmrda, J. Ralph Beaird

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In light of the criticisms of the House and recent constitutional objections, this article reevaluates the viability of the employer and consultant reporting provisions of the Labor Management Reporting and Disclosure Act (LMRDA). Section I discusses the legislative history and purpose of the LMRDA's reporting provisions. Section II examines the courts' treatment of the provisions when attacked on constitutional and statutory grounds.

Legal Perspectives On The Interstate Incidence And Shifting Of State And Local Taxes, Walter Hellerstein

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Lawyers, especially constitutional lawyers, have long been concerned with the problems associated with the interstate incidence and shifting of state and local taxes. The Constitution has frequently been invoked as a restraint on the states' power to levy taxes on persons, property, or activities outside their borders. Yet the lawyer's view of tax incidence embodied in these constitutional disputes often bears little resemblance to the economist's. In recent years, however, lawyers have sought to import economic concepts of shifting and incidence into the legal analysis of the constitutional limitations on the states' power to export tax burdens to residents of …

The Emperor Gideon Has No Clothes: The Empty Promise Of The Constitutional Right Of Effective Assistance Of Counsel, Richard Klein

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No abstract provided.

Constitutional Interpretation—The Uses And Limitations Of Original Intent, Thomas B. Mcaffee

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It is fitting that in the decade of the Bicentennial of the Constitution we have seen a renewal of debate over the meaning of the Constitution and what is required to remain true to it. An aspect of that debate has concerned constitutional interpretation and the role of “original intent”—or perhaps more broadly, “original context”—in any proper approach to the interpretive process. Unfortunately, the debate is frequently approached from virtually an either/or perspective, as though the intent of the Framers must either control all constitutional questions or be used as no more than window-dressing. While some advocates of original intent …

Conflicts Between Copyright And The First Amendment After Harper & Row, Publishers V. Nation Enterprises, David E. Shipley

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The relationship between copyright and the first amendment has been discussed repeatedly in the past fifteen years. A free speech privilege has been asserted as a defense in many copyright infringement actions, and the topic has been the subject of lively academic debate. Although no court has held an infringement claim to be defeated by a first amendment defense, considerable attention has been paid to the potential conflict between copyright and free speech interests. Commentators have speculated that in some situations copyright protection could impermissibly abridge the first amendment. The United States Supreme Court's decision in Harper & Row, Publishers …

A Race By Any Other Name: The Interplay Between Ethnicity, National Origin And Race For Purposes Of Section 1981, Eileen R. Kaufman

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No abstract provided.

Criminal Evidence And The Ear Of The Law, Daniel H. Derby

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No abstract provided.

The Abortion Controversey: A Study In Law And Politics, Albert M. Pearson, Paul M. Kurtz

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The Supreme Court's 1973 decision in Roe v. Wade, which held that women have a federal constitutional right to an abortion, has generated considerable controversy. The abortion issue became politically significant in the 1960's, when, emboldened by the Supreme court's recognition of a constitutionally based right of privacy, activists initiated a series of legal challenges to the validity of state abortion laws. Their efforts finally succeeded in 1973 when the Supreme Court in Roe and Doe v. Bolton struck down as unconstitutional the Texas and Georgia abortion laws. For those who objected to the result in Roe, however, …

Government–Owned Media: The Government As Speaker And Censor, Linda L. Berger

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When government operates a communications medium, it may either promote first amendment values, by ensuring a diverse marketplace of ideas, or hinder them, by censoring the information and ideas it conveys. This Note proposes a synthesis of government speech and government forum analyses which would provide first amendment limitations on government-operated media while still allowing government to exercise editorial discretion.

Substantive Due Process And The Scope Of Constitutional Torts, Michael L. Wells, Thomas A. Eaton

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The thesis of this Article is that both the Supreme Court and its critics have failed to identify and confront the central issue presented by these due process constitutional tort cases. That issue is neither procedural fairness nor the choice between state and federal courts. It is deciding whether a government-inflicted injury to life, liberty, or property violates the substantive protections of the due process clauses and thereby warrants a constitutionally derived tort remedy. In Part II of this Article we examine the Supreme Court's decisions in this area, focusing primarily on Parratt v. Taylor. We demonstrate that neither Parratt …

Berger V. The Supreme Court—The Implications Of His Exceptions-Clause Odyssey, Thomas B. Mcaffee

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In his 1969 Congress v. The Supreme Court, Raoul Berger evaluated the potential claims to supremacy of Congress and the Supreme Court under the exceptions clause of article III and found in favor of the Supreme Court. Berger explicated a narrow construction of Congress’ express power to make exceptions to the Court’s appellate jurisdiction, holding that Congress’ claimed power to curb judicial excess was at odds with the design of the Constitution and without historical foundation. From 1969 to 1980, Berger reaffirmed his initial reading of the legislative history of article III no less than four times, once in …

A Due Process Of Judicially-Authorized Presumptions In Federal Aggravated Bank Robbery Cases, James F. Ponsoldt

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Within the past fifteen years several broadly-focused articles have identified general constitutional limits, under the due process clause, on presumptions and inferences created by statute or applied by courts in trying criminal cases. Recently, in County Court of Ulster County, New York v. Allen , the Supreme Court affirmed the validity of the evidentiary devices of inference and presumptions and labeled them "a staple of our adversary system of factfinding." This suggest that to unreasonably curtail the use of circumstantial evidence in the factfinding process would place an intolerable burden on prosecutors in their efforts to prove guilt beyond a …