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Constitutional Law

1998

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Comment: Redress, Progress And The Benchmark Problem, Aviam Soifer Dec 1998

Comment: Redress, Progress And The Benchmark Problem, Aviam Soifer

Boston College Third World Law Journal

No abstract provided.


Law And Human Dignity: The Judicial Soul Of Justice Brennan, Stephen J. Wermiel Dec 1998

Law And Human Dignity: The Judicial Soul Of Justice Brennan, Stephen J. Wermiel

William & Mary Bill of Rights Journal

The concept of human dignity has emerged in the United States in recent decades as an important theoretical and sometimes practical source of individual rights and liberties. Human dignity is cited in jurisprudential writings and discussed in some court opinions as a means of enhancing the broad phrases of the Bill of Rights and the Fourteenth Amendment. This Essay examines the pivotal role that the late Justice William J. Brennan, Jr., played on the United States Supreme Court in making concepts of human dignity a valued and essential part of rights formulation. This essay explores Justice Brennan 's vision of ...


Remarks By U.S. Senator Robert C. Byrd The Constitution In Peril, Robert C. Byrd Dec 1998

Remarks By U.S. Senator Robert C. Byrd The Constitution In Peril, Robert C. Byrd

West Virginia Law Review

No abstract provided.


Protecting The Fetus: The Criminalization Of Prenatal Drug Use, Kellam T. Parks Dec 1998

Protecting The Fetus: The Criminalization Of Prenatal Drug Use, Kellam T. Parks

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Lincoln, Vallandingham, And Anti-War Speech In The Civil War, Michael Kent Curtis Dec 1998

Lincoln, Vallandingham, And Anti-War Speech In The Civil War, Michael Kent Curtis

William & Mary Bill of Rights Journal

In the early morning hours of May 5, 1863, Union soldiers forcibly arrested Clement L. Vallandigham, a prominent Democratic politician and former congressman, for an anti-war speech which he had given a few days earlier in Mount Vernon, Ohio. Vallandigham's arrest ignited debate about freedom of speech in a democracy during a time of war and the First Amendment rights of critics of an administration. This Article is one in a series by Professor Curtis which examines episodes in the history of free speech before and during the Civil War.

In this Article, Professor Curtis explores the First Amendment ...


Overcoming Overbreadth: Facial Challenges And The Valid Rule Requirement , Marc E. Isserles Dec 1998

Overcoming Overbreadth: Facial Challenges And The Valid Rule Requirement , Marc E. Isserles

American University Law Review

No abstract provided.


State Sales & Use Tax On Internet Transactions, Sandi Owen Dec 1998

State Sales & Use Tax On Internet Transactions, Sandi Owen

Federal Communications Law Journal

The explosive growth of electronic commerce raises serious questions about the viability of the current state sales and use tax system. Sales via the Internet and other electronic means are changing both the form and substance of consumer transactions, and such sales often do not satisfy the traditional nexus requirement for state taxation because on-line vendors frequently lack physical presence in the purchaser’s home state. The inability to collect taxes on this growing segment of the retail sales market will impair states’ efforts to raise revenues and cause economically similar transactions to be treated differently. Consequently, Congress must act ...


An Original Model Of The Independent Counsel Statute, Ken Gormley Dec 1998

An Original Model Of The Independent Counsel Statute, Ken Gormley

Michigan Law Review

On Friday, October 19, 1973, President Richard M. Nixon took a risky step to de-fang the Watergate investigation that had become a "viper in the bosom" of his Presidency. The U.S. Court of Appeals had just directed him to tum over tape-recordings subpoenaed by Watergate Special Prosecutor Archibald Cox; these taperecordings might prove or disprove White House involvement in the Watergate cover-up. Rather than challenge this ruling, the President conceived a new plan. The White House would prepare summaries of the nine tape-recordings in question, which would be verified by Senator John Stennis, a seventy-two-year-old Democrat from Mississippi, working ...


Suspicionless Drug Testing And Chandler V. Miller: Is The Supreme Court Making The Right Decisions, Ross H. Parr Dec 1998

Suspicionless Drug Testing And Chandler V. Miller: Is The Supreme Court Making The Right Decisions, Ross H. Parr

William & Mary Bill of Rights Journal

During the last decade, the United States Supreme Court has rendered four major decisions regarding the validity of suspicionless drug testing policies. Such drug testing policies have become a common way for employers and other interested parties-including the government-both to deter the use of drugs and to determine who is acting under the influence of illegal narcotics. Because government officials often randomly select individuals for drug testing, some of these individuals have charged that a governmental drug testing policy violates the Fourth Amendment. The Supreme Court found this argument unconvincing in three cases decided between 1989 and 1997, but in ...


Physician-Assisted Suicide: State Legislation Teetering At The Pinnacle Of A Slippery Slope, Eunice Park Dec 1998

Physician-Assisted Suicide: State Legislation Teetering At The Pinnacle Of A Slippery Slope, Eunice Park

William & Mary Bill of Rights Journal

Physician-assisted suicide has become the subject of a hotly contested legal and political debate, both in the United States and abroad. In 1997, the United States Supreme Court rendered two decisions concerning physician-assisted suicide, and two states recently enacted legislation on this issue: Oregon in 1997 and Virginia in 1998. Nevertheless, the legality of physician-assisted suicide remains unclear as doctors, pharmacists, legal commentators, and a growing segment of the general population continue to argue over the line between "letting die" and "killing." This Note analyzes both the constitutional and political aspects of the right-to-die debate, focusing primarily on the political ...


The Qualitative Dimension Of Fourth Amendment "Reasonableness", Sherry F. Colb Nov 1998

The Qualitative Dimension Of Fourth Amendment "Reasonableness", Sherry F. Colb

Cornell Law Faculty Publications

Supreme Court doctrine protects two seemingly distinct kinds of interests under the heading of privacy rights: one "substantive," the other "procedural." The Fourth Amendment guarantee against "unreasonable searches and seizures" has been generally interpreted to protect procedural privacy. Searches are typically defined as governmental inspections of activities and locations in which an individual has a reasonable expectation of privacy from observation. In the typical case, this reasonable expectation of privacy may be breached only where the government has acquired a quantitatively substantial objective basis for believing that the search would uncover evidence of a crime. Substantive privacy rights have not ...


The Treaty Power And American Federalism, Curtis A. Bradley Nov 1998

The Treaty Power And American Federalism, Curtis A. Bradley

Michigan Law Review

For much of this century, American foreign affairs law has assumed that there is a sharp distinction between what is foreign and what is domestic, between what is external and what is internal. This assumption underlies a dual regime of constitutional law, in which federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional restraints than federal regulation of domestic affairs. In what is perhaps its most famous endorsement of this proposition, the Supreme Court stated in 1936 that "the federal power over external affairs [is] in origin and essential character different from ...


Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin Nov 1998

Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin

Michigan Law Review

Despite the continued belief held by most Americans that certain characteristics should not form the basis for adverse decisions about individuals in employment, housing, public accommodations, and the provision of a wide range of governmental and private services and opportunities, antidiscrimination laws have increasingly come under attack on the ground that they provide members of the group against whom discrimination is forbidden with "special rights." The "special rights" objection has been voiced most strongly, but not exclusively, against laws that seek to prohibit discrimination on the basis of sexual orientation. This line of attack has not always been effective, but ...


The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck Oct 1998

The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck

Faculty Publications

This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters "respecting an establishment of religion." Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.


A Loss Of Control: Privilege Cases Diminish Presidential Power, Neal Devins Oct 1998

A Loss Of Control: Privilege Cases Diminish Presidential Power, Neal Devins

Popular Media

No abstract provided.


The New American Caste System: The Supreme Court And Discrimination Among Civil Rights Plaintiffs, Melissa L. Koehn Oct 1998

The New American Caste System: The Supreme Court And Discrimination Among Civil Rights Plaintiffs, Melissa L. Koehn

University of Michigan Journal of Law Reform

Fifteen percent of the decisions issued by the Supreme Court during its 1996-97 Term centered around section 1983. Section 1983 provides civil rights plaintiffs with a procedural mechanism for vindicating their federally protected rights, including those enshrined in the Constitution. The Court's decisions from its 1996-97 Term reflect a continuation of the alarming trend that has permeated section 1983 for the last two decades-a movement to decrease the scope of section 1983, regardless of the impact on constitutional rights. The Supreme Court appears to be creating a hierarchy both of constitutional rights and of plaintiffs: free speech and takings ...


The Shifting Preemption Paradigm: Conceptual And Interpretive Issues, Karen A. Jordan Oct 1998

The Shifting Preemption Paradigm: Conceptual And Interpretive Issues, Karen A. Jordan

Vanderbilt Law Review

Recent decisions have signaled a subtle shift away from the Supreme Court's categorical approach to the issue of federal preemption of state law, and toward a preemption continuum in which the implied preemption theories may inform an express preemption analysis. Yet, the Court as a whole has avoided addressing the issues arising from the integration of the doctrines. In this Article, Professor Jordan explores some of these difficult issues. The conceptual issues concern when and how the implied theories should be used in an analysis involving an express preemption clause. She analyzes the Court's recent use of the ...


The "Dirty Little Secret": Why Class Actions Have Emerged As The Only Viable Option For Women Inmates Attempting To Satisfy The Subjective Prong Of The Eighth Amendment In Suits For Custodial Sexual Abuse, Amy Laderberg Oct 1998

The "Dirty Little Secret": Why Class Actions Have Emerged As The Only Viable Option For Women Inmates Attempting To Satisfy The Subjective Prong Of The Eighth Amendment In Suits For Custodial Sexual Abuse, Amy Laderberg

William & Mary Law Review

No abstract provided.


Undoing The New Deal Through The New Presidentialism, Cynthia R. Farina Oct 1998

Undoing The New Deal Through The New Presidentialism, Cynthia R. Farina

Cornell Law Faculty Publications


The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf Oct 1998

The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.


Separation Of Powers In State Constitutional Law - Introduction, Carl T. Bogus Oct 1998

Separation Of Powers In State Constitutional Law - Introduction, Carl T. Bogus

Law Faculty Scholarship

No abstract provided.


Rethinking The Clear And Present Danger Test, David R. Dow, R. Scott Shieldes Oct 1998

Rethinking The Clear And Present Danger Test, David R. Dow, R. Scott Shieldes

Indiana Law Journal

No abstract provided.


Challenging Defamatory Opinions As An Alternative To Media Self-Regulation, James F. Ponsoldt Oct 1998

Challenging Defamatory Opinions As An Alternative To Media Self-Regulation, James F. Ponsoldt

Scholarly Works

This Essay analyzes defamation law as it applies to the media. Part I summarizes the state of defamation law prior to the 1990 Supreme Court decision in Milkovich v. Lorain Journal Co., when opinion was presumed immune from liability. Part II examines the holding in Milkovich, which suggests the potential liability for recklessly defamatory statements couched as or in the context of opinion. Part III reviews post-Milkovich decisions during the 1990's. This Essay concludes that the predictions of Milkovich were accurate in many jurisdictions and could apply to televised allegations during the coverage of the Clinton affair. The ...


Formalism And State Sovereignty In Printz V. United States: Cooperation By Consent, Andrew S. Gold Oct 1998

Formalism And State Sovereignty In Printz V. United States: Cooperation By Consent, Andrew S. Gold

Faculty Scholarship

No abstract provided.


The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John Copeland Nagle Oct 1998

The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John Copeland Nagle

Michigan Law Review

The protagonist in our story has six legs, is one inch long, and dies two weeks after it emerges from the ground. To the untrained eye, the Delhi Sands Flower-Loving Fly looks like, well, a big fly. Entomologists know better. This particular fly can hover like a hummingbird as it uses its long tubular nose to extract nectar from flowers. It can only live in particular fine soils - the Delhi sands - that appear in patches over a forty square mile stretch from Colton to Ontario, California. Today only a few hundred Delhi Sands Flower-Loving Flies survive in less than a ...


Ultra Vires Takings, Matthew D. Zinn Oct 1998

Ultra Vires Takings, Matthew D. Zinn

Michigan Law Review

When does legislative or administrative regulatory action "go[] too far" and effectively amount to an .appropriation of private property for which the Fifth Amendment requires just compensation? This question has turned out to be one of the thorniest in American constitutional law. The Supreme Court has identified several circumstances in which one can expect to find a regulatory taking, but its numerous pronouncements on the subject give no clear rule to distinguish compensable takings from noncompensable interference with property rights. Notwithstanding its volume, the commentary on the Takings Clause by and large addresses only proper governmental action that rises to ...


Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler Oct 1998

Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler

Michigan Law Review

The Bill of Rights, by means of open-ended terms such as "freedom of speech," "equal protection," or "due process," refers to moral criteria, which take on constitutional status by virtue of being thus referenced. We can disagree about whether the proper methodology for judicial application of these criteria is originalist or nonoriginalist. The originalist looks, not to the true content of the moral criteria named by the Constitution, but to the framers' beliefs about that content; the nonoriginalist tries to determine what the criteria truly require, and ignores or gives less weight to the framers' views. Bracketing this disagreement, however ...


Choppy Waters Are Forecast For Academic Free Speech, Rachel E. Fugate Oct 1998

Choppy Waters Are Forecast For Academic Free Speech, Rachel E. Fugate

Florida State University Law Review

No abstract provided.


Trends. Clinton/Lewinsky, Star Chambers, The Starr Report: E Pluribus Unum Or E Uno Plures?, Ibpp Editor Sep 1998

Trends. Clinton/Lewinsky, Star Chambers, The Starr Report: E Pluribus Unum Or E Uno Plures?, Ibpp Editor

International Bulletin of Political Psychology

The author discusses the effect of lying on the presidency and impeachment.


Lie Detection: The Supreme Court's Polygraph Decision, Bennett L. Gershman Sep 1998

Lie Detection: The Supreme Court's Polygraph Decision, Bennett L. Gershman

Pace Law Faculty Publications

In United States v. Scheffer, decided this past Term, the Supreme Court considered for the first time the admissibility of polygraph evidence. The Court held that exclusion of such evidence on behalf of a criminal defendant was supported by valid justifications and offended no constitutional right to present a defense.