Digital Commons Network^™

Echoes From The Segregationist Past At Oral Argument, Mary Ellen Maatman

Mary Ellen Maatman

Not All Black And White, Alan E. Garfield

Alan E Garfield

No abstract provided.

Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen

Mark P. Gergen

Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing. Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.” Statutory minimum recoveries for defendants’ violations of plaintiffs’ individual rights without proof …

The Impact Of “Standing” Is Anything But Boring, Alan E. Garfield

Alan E Garfield

No abstract provided.

Europe's Darker Legacies; Notes On Mirror Reflections, The Constitution As Fetish, And Other Such Linkages Between The Past And The Future Darker Legacies Of Law In Europe; The Shadow Of National Socialism And Fascism Over Europe And Its Legal Traditions Edited, By Christian Joerges And Navraj Singh Ghaleigh (Eds); European Constitutionalism Beyond The State, By J. H. H. Weiler And Marlene Wind (Eds), Peer Zumbansen

Peer Zumbansen

No abstract provided.

Is It Time To Stop Tinkering With The Machinery Of Death?, Alan E. Garfield

Alan E Garfield

No abstract provided.

Law's Religion: Rendering Culture, Benjamin L. Berger

Benjamin L. Berger

This article argues that constitutional law's inability to deal with religion in a satisfying way flows, in part, from its failure to understand religion as, in a robust sense, culture. Once one begins to understand the Canadian constitutional rule of law itself as a cultural form, it becomes apparent that law renders religion in a very particular fashion, and that this rendering is a product of law's symbolic categories and interpretive horizons. This article draws out the elements of Canadian constitutionalism's unique rendering of religion and argues that, although Canadian constitutionalism claims to understand religion as a culture, this is …

Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen

Doug Rendleman

Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing. Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.” Statutory minimum recoveries for defendants’ violations of plaintiffs’ individual rights without proof …

First Amendment; Freedom Of Speech; Broadcasting; Obscenity; Fcc V. Pacifica Foundation, James E. Moliterno

James E. Moliterno

“ ‘I was thinking about the curse words and the swear words, the cuss L words and the words you can't say . . .the words you couldn't say on the public, ah, airwaves... the ones that will curve your spine [and] grow hair on your hands ....’ While this is the satiric opinion of George Carlin, the Federal Communications Commission (FCC) and a bare majority of the United States Supreme Court have embraced it as their genuine opinion.' They have decided to protect the public from the fate of hearing Carlin's social criticism regarding seven ‘dirty’ words.”

Who’S The ‘We?’ Who’S ‘The People?’, Rodney A. Smolla

Rod Smolla

No abstract provided.

The Right To Contract: Use Of Domestic Partnership As A Strategic Alternative To The Right To Marry Same-Sex Partners, Dara Purvis

Dara Purvis

Shortly after the Civil War, a series of cases argued that the Civil Rights Act of 1866 gave black Americans the right to make contracts, including a marriage contract, with whomever they chose. While the cases were almost uniformly unsuccessful at that time, this paper argues that claims based on private contracts replicating some of marriage’s benefits, stripped of the social and religious freight of marriage, are more compelling. State constitutional amendments banning not only marriage, but any legal recognition of a marriage-like relationship, demonstrate that animus underlies the prohibitions and that the amendments violate the Equal Protection Clause even …

All American Citizens Fall Under ‘We The People,’ But Who Is Really Included?, Alan E. Garfield

Alan E Garfield

No abstract provided.

California Supreme Court Unanimously Upholds Inclusionary Zoning As Land Use Regulation And Not An Exaction, Tim Iglesias

Tim Iglesias

Local governments, housing advocates, and people who need affordable housing won a solid victory in the California Supreme Court's unanimous opinion in California Bldg. Indus. Ass'n v. City of San Jose. In a complex 64-page opinion that is clearly drafted and rigorously argued, the court held that inclusionary zoning is a constitutionally permissible strategy to produce affordable housing and to promote economic integration that is subject to rational basis review and not heightened scrutiny.

This article outlines the factual and legal background of the case and discusses the court's reasoning in reaching its decision, including the court's refusal to find …

The Conflict Of Laws In Armed Conflicts And Wars, John C. Dehn

John C. Dehn

After over thirteen years of continuous armed conflict, neither courts nor scholars are closer to a common understanding of whether, or how, international and U.S. law interact to regulate acts of belligerency by the United States. This Article articulates the first normative theory regarding the relationship of customary international law to U.S. domestic law that fully harmonizes Supreme Court precedent. It then applies this theory to customary international laws of war to better articulate the legal framework regulating the armed conflicts of the United States. It demonstrates that the relationship of customary international law to U.S. law differs in cases …

Is It Unconstitutional To Prohibit Faith-Based Schools From Becoming Charter Schools?, Stephen D. Sugarman

Stephen D Sugarman

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for …

The Emergence Of Classical American Patent Law, Herbert Hovenkamp

Herbert Hovenkamp

The Emergence of Classical Patent Law

Abstract

One enduring historical debate concerns whether the American Constitution was intended to be "classical" -- referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce …

All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet

Jud Mathews

This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how …

Taking Libel Reform Seriously, Rodney A. Smolla

Rod Smolla

Not available.

Integration Maintenance: The Unconstitutionality Of Benign Programs That Discourage Black Entry To Prevent White Flight, Rodney A. Smolla

Rod Smolla

Not available.

George Will’S Supreme Court History Is Dubious, Alan E. Garfield

Alan E Garfield

No abstract provided.

Will ‘Rule Of Five’ End Marriage Debate?, Alan E. Garfield

Alan E Garfield

No abstract provided.

An Other Christian Perspective On Lawrence V. Texas, Victor C. Romero

Victor C. Romero

The so-called Religious Right's reaction to Lawrence v. Texas has been both powerful and negative, characterizing the case as an assault on the traditional conception of marriage and family life. This essay is an attempt to present a different Christian view. Modeled on the life and teachings of Jesus, this perspective celebrates the Lawrence case as consistent with God's call to social justice for the oppressed. It also outlines a Christian sexual ethic that lifts up genuine, monogamous, committed love between two individuals, whether of the same or opposite sex.

"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson

Darren L Hutchinson

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective …

When Should The Supreme Court Justices ‘Decide’ A Right?, Alan E. Garfield

Alan E Garfield

No abstract provided.

Foreign Precedents In Constitutional Adjudication By The Supreme Court Of Singapore, 1963–2013, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

This article surveys the use of foreign precedents in constitutional adjudication by the Supreme Court of Singapore for over a half century during the terms of the first three Chief Justices—Wee Chong Jin (1963–1990), Yong Pung How (1990–2006), and Chan Sek Keong (2006–2012)—and the first year in office of the fourth Chief Justice, Sundaresh Menon (2012–2013). It concludes that while judges have always cited foreign case law, they have only actually applied foreign cases where the wording of the Constitution and the constitutional arrangements in Singapore are fairly analogous to the constitutional texts and arrangements upon which the cases were …

Second Thoughts About The First Amendment, Randy J. Kozel

Randy J Kozel

The U.S. Supreme Court has shown a notable willingness to reconsider — and depart from — its First Amendment precedents. In recent years the Court has marginalized its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech. Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis. This Article …

Are Vanity License Plates Considered Government Speech Or Public Speech?, Alan E. Garfield

Alan E Garfield

No abstract provided.

What The Constitution Means By “Duties, Imposts, And Excises”—And “Taxes” (Direct Or Otherwise), Robert G. Natelson

Robert G. Natelson

This Article recreates the original definitions of the U.S. Constitution’s terms “tax,” “direct tax,” “duty,” “impost,” “excise,” and “tonnage.” It draws on a greater range of Founding-Era sources than accessed heretofore, including eighteenth-century treatises, tax statutes, and literary source, and it corrects several errors made by courts and previous commentators. It concludes that the distinction between direct and indirect taxes was widely understood during the Founding Era, and that the term “direct tax” was more expansive than commonly realized. The Article identifies the reasons the Constitution required that direct taxes be apportioned among the states by population. It concludes that …

The Constitutive Paradox Of Modern Law: A Comment On Tully, Ruth Buchanan

Ruth Buchanan

This commentary draws out and elaborates upon some of the more challenging aspects of Professor Tully's sophisticated taxonomy of the relationship between modern constitutional forms and constituent powers. Tully's article reveals the historical particularities of these formations, and at the same time encourages the reader to think beyond them, towards the potentially uncategorizable realm of democratic constitutionalism. Yet, how is it possible to use a taxonomy of modern constitutional democracy as a means of understanding what ties in the uncharted territory beyond? This commentary further explores to what extent this paradoxical modern configuration of constituent powers and constitutional forms may …

Symbolic Counter-Speech, Howard M. Wasserman

Howard M Wasserman

No abstract provided.