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State Action Problems, Christian Turner
State Action Problems, Christian Turner
Florida Law Review
The state action doctrine is a mess. Explanations for why federal courts sometimes treat the private actions of private parties as public actions subject to the Constitution, as the Supreme Court did in Shelley v. Kraemer, are either vastly over-inclusive or fail to explain our law and values. A better approach is to understand the state action doctrine in institutional terms. I introduce a two-step, institutionally focused state action theory that is a natural consequence of a broader public–private theory of legal systems. In the first step, a court identifies a “state action problem,” meaning a privately made law that …
The First Amendment, Equal Protection And Felon Disenfranchisement: A New Viewpoint, Janai S. Nelson
The First Amendment, Equal Protection And Felon Disenfranchisement: A New Viewpoint, Janai S. Nelson
Florida Law Review
This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen‘s ideas are worthy of inclusion in the electorate. Relying on a series of cases involving state interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disenfranchisement is open to attack under the Supreme Court‘s fundamental rights jurisprudence when it is motivated by a desire to …
Constitutional Authority Statements In Congress, Hanah Metchis Volokh
Constitutional Authority Statements In Congress, Hanah Metchis Volokh
Florida Law Review
“Congress has the power to enact this legislation pursuant to the following: This bill is enacted pursuant to the power granted to Congress under Article I, Section 8, Clause 2 of the United States Constitution.” “Congress has the power to enact this legislation pursuant to the following: The Katie Sepich Enhanced DNA Collection Act is constitutionally authorized under Article I, Section 8, Clause 18, the Necessary and Proper Clause. The Necessary and Proper Clause supports the expansion of congressional authority beyond the explicit authorities that are directly discernible from the text. Additionally, the Preamble to the Constitution provides support of …
Imagining The Open Road, Brooks Holland
Imagining The Open Road, Brooks Holland
Florida Law Review
I first read a draft of Nancy Leong’s Article, The Open Road and the Traffic Stop: Narratives and Counter-Narratives of the American Dream (“Open Road”), while my law school was preparing to host a conference on race and criminal justice. To our great fortune, Professor Leong accepted our invitation to present this thoughtful paper. I now have re-read the Open Road to write this response paper while additionally considering Articles by David Segal, Stanley Fish, and others debating aspects of legal education—in particular, the role of faculty scholarship. My repeated engagements with the Open Road confirm that it contributes beautifully …
The End Of An Era: The Supreme Court (Finally) Butts Out Of Punitive Damages For Good, Jim Gash
The End Of An Era: The Supreme Court (Finally) Butts Out Of Punitive Damages For Good, Jim Gash
Florida Law Review
It is finally over. The Supreme Court’s incursion into punitive damages jurisprudence has unceremoniously ended, but not before the Court, under the guise of substantive due process, erected a complex and constitutionally dubious set of rules in an effort to fix the heretofore-intractable multiple punishments problem. As is often the case, the incrementalist approach taken by the Court allowed this conquest to occur somewhat quietly. Professor Pamela Karlan observes that “most constitutional law scholars have hardly noticed that the most significant innovation in substantive due process during the Rehnquist and Roberts Court years” has been the Court’s punitive damages jurisprudence. …
Two Faces Of Judicial Restraint (Or Are There More?) In Mcdonald V. City Of Chicago, Nelson Lund
Two Faces Of Judicial Restraint (Or Are There More?) In Mcdonald V. City Of Chicago, Nelson Lund
Florida Law Review
Since the days of the Warren Court, conservatives have attacked “judicial activism.” Beginning with Judge Robert Bork’s Supreme Court nomination hearings, and lately with increasing frequency, liberals have sought to turn the tables. Critics now charge that conservative judges are activists, especially when they undermine liberal precedents or strike down liberal legislation. Defenders of judicial activism have all but disappeared. One sign of this apparent consensus is that all Supreme Court nominees now promise to be paragons of judicial restraint. Any of the following quotes, for example, could easily have been uttered by any of the four most recent nominees: …
Student Speech And The First Amendment: A Comprehensive Approach, Lee Goldman
Student Speech And The First Amendment: A Comprehensive Approach, Lee Goldman
Florida Law Review
Can a school discipline a student for creating a vulgar parody profile of the school principal or another student on the website MySpace? Can it preclude a student from wearing at school a T-shirt that reads, “Homosexuality is shameful”? These are some of the difficult issues raised when students’ First Amendment rights clash with schools’ operational needs and custodial responsibilities. The Supreme Court has addressed students’ First Amendment speech rights on several occasions, most recently in Morse v. Frederick. Lower courts, however, have had great difficulty applying these precedents, particularly when the speech involves the Internet or other new media. …
Civil Rights, Charter Schools, And Lessons To Be Learned, Derek W. Black
Civil Rights, Charter Schools, And Lessons To Be Learned, Derek W. Black
Florida Law Review
Two major structural shifts have occurred in education reform in the past two decades: the decline of civil rights reforms and the rise of charter schools. Courts and policy makers have relegated traditional civil rights reforms that address segregation, poverty, disability, and language barriers to near irrelevance, while charter schools and policies supporting their creation and expansion have rapidly increased and now dominate federal policy. Advocates of traditional civil rights reforms interpret the success of charter schools as a threat to their cause, and, consequently, have fought the expansion of charter schools. This Article argues that the civil rights community …
Seeing Red: The Legal Backlash Against Red-Light Cameras In Florida, Nicole Kuncl
Seeing Red: The Legal Backlash Against Red-Light Cameras In Florida, Nicole Kuncl
Florida Law Review
This Note will examine Florida’s Mark Wandall Traffic Safety Act, which authorizes the use of traffic infraction detectors (red-light cameras) to enforce traffic laws. Florida, like many other states, currently finds itself in the midst of a heated debate over the use of red-light cameras to issue traffic citations. Strong arguments can be made both for and against this policy, but there are some who absolutely refuse to accept it, for both constitutional and practical reasons. If opponents hope to end all use of red-light cameras in the state, however, they will need to acknowledge that judicial opinion is overwhelmingly …
Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben Trachtenberg
Confronting Coventurers: Coconspirator Hearsay, Sir Walter Raleigh, And The Sixth Amendment Confrontation Clause, Ben Trachtenberg
Florida Law Review
Using the example of a recent major terrorism prosecution, this Article addresses “coventurer hearsay” in the context of the ongoing Confrontation Clause debate concerning the United States Supreme Court’s decision in Crawford v. Washington. Courts have recently begun admitting hearsay evidence pursuant to a revisionist interpretation of the coconspirator statement exception to the hearsay rule. Under the new “lawful joint venture” theory, a hearsay statement may be admitted as a coconspirator statement if made in furtherance of a “joint undertaking”—defined as pretty much any cooperative activity—even if the “conspiracy” is not illegal. Because this new interpretation of an old hearsay …
No History, No Certainty, No Legitimacy . . . No Problem: Originalism And The Limits Of Legal Theory, Gary Lawson
No History, No Certainty, No Legitimacy . . . No Problem: Originalism And The Limits Of Legal Theory, Gary Lawson
Florida Law Review
Professor Martin H. Redish is on the warpath. Like General Sherman marching toward Atlanta (or Justin Tuck marching toward Tom Brady), Professor Redish, together with Matthew Arnould, lays waste to every constitutional theory that he encounters. Originalism, with its “belief that constitutional interpretation should be characterized exclusively by an effort to determine the Constitution’s meaning by means of some form of historical inquiry,” generates “an often contrived and opaque veil of historical inquiry” that provides “an ideal smokescreen behind which judges may pursue their personal[,] moral, political[,] or economic goals with relative impunity.” Nontextual theories, for their part, “permit[] selective …
Judicial Review, Constitutional Interpretation, And The Democratic Dilemma: Proposing A “Controlled Activism” Alternative, Martin H. Redish, Matthew B. Arnould
Judicial Review, Constitutional Interpretation, And The Democratic Dilemma: Proposing A “Controlled Activism” Alternative, Martin H. Redish, Matthew B. Arnould
Florida Law Review
No problem generates more debate among constitutional scholars than how to approach constitutional interpretation. This Article critiques two representative theories (or families of theories), originalism and nontextualism, and offers a principled alternative, which we call “controlled activism.” By candidly acknowledging the judge’s creative role in constitutional lawmaking, controlled activism promises real limits on judicial discretion.
The Elusive Quest For Value Neutral Judging: A Response To Redish And Arnould, Erwin Chemerinsky
The Elusive Quest For Value Neutral Judging: A Response To Redish And Arnould, Erwin Chemerinsky
Florida Law Review
In October 2012, the United States Supreme Court heard oral arguments in Fisher v. University of Texas at Austin and again faced the question of whether colleges and universities can consider race as a factor in admissions decisions to benefit minorities and enhance diversity. As was true when the Court last considered this issue in Grutter v. Bollinger in 2003, the central question for the Justices was whether colleges and universities have a compelling interest in having a diverse student body. As I read the paper by Martin Redish and Mathew Arnould, I wondered how they would have the Court …