Digital Commons Network^™

Arbitration And Article Iii, Peter B. Rutledge

Scholarly Works

Does arbitration violate Article III? Despite the critical need for a coherent theory to answer this question, few commentators or courts have made serious attempts to provide one. For much of the country's history, federal courts conveniently could avoid this nettlesome question. Prior to the twentieth century, courts simply declined to enforce pre-dispute arbitration agreements as unenforceable attempts to appropriate their jurisdiction. From the early decades of the twentieth century (with the enactment of the Federal Arbitration Act (“FAA”) in 1925) through the 1960s, the non-arbitrability doctrine prevented arbitrators from resolving issues of federal statutory law. Notably, while both of …

Sanctionable Conduct: How The Supreme Court Stealthily Opened The Schoolhouse Gate, Sonja R. West

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The Supreme Court's decision in Morse v. Frederick signaled that public school authority over student expression extends beyond the schoolhouse gate. This authority may extend to any activity in which a student participates that the school has officially sanctioned. The author argues that this decision is unsupported by precedent, and could encourage schools to sanction more events in the future. Because the Court failed to limit or define the power of a school to sanction an activity, the decision could have a chilling effect on even protected student expression. The author commends the Court for taking up this issue after …

The "Foundations" Of Anti-Foundationalism — Or, Taking The Ninth Amendment Lightly: A Comment On Farber's Book On The Ninth Amendment, Thomas B. Mcaffee

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The Ninth Amendment has served two purposes in constitutional discourse - to refute textualists and originalists, and to supply the historical grounds for reading the Constitution as a rights-foundationalist document. Professor McAffee's review of Professor Farber's book on the amendment raises the question whether, given Farber's prior rejection of foundationalism, it is possible for him to reconcile these two ends. It also suggests that, even if the amendment did grow from the environment that gave us the Declaration of Independence, the history gives reason to doubt that its purpose was to provide for the legal enforcement of unstated moral claims, …

The Political Origins Of Secular Public Education: The New York School Controversy 1840-1842, Ian C. Bartrum

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As the title suggests, this article explores the historical origins of secular public education, with a particular focus on the controversy surrounding the Catholic petitions for school funding in nineteenth-century New York City. The article first examines the development of Protestant nonsectarian common schools in the northeast, then turns to the New York controversy in detail, and finally explores that controversy's legacy in state constitutions and the Supreme Court. It is particularly concerned with two ideas generated in New York: (1) Bishop John Hughes' objection to nonsectarianism as the 'sectarianism of infidelity'; and (2) New York Secretary of State John …

In The Trenches: Searches And The Misunderstood Common-Law History Of Suspicion And Probable Cause, Fabio Arcila

Scholarly Works

A detailed analysis of the common law during the Framers’ era, and of how it reflected the Fourth Amendment’s restrictions, shows that many judges believed they could issue search warrants without independently assessing the adequacy of probable cause, and that this view persisted even after the Fourth Amendment became effective. This conclusion challenges the leading originalist account of the Fourth Amendment, which Professor Thomas Davies published in the Michigan Law Review in 1999.

Learned treatises in particular, and to a lesser extent a few case decisions, had articulated a judicial duty to monitor probable cause. But it is a mistake …

An Analysis Of Death Penalty Decisions From The October 2006 Supreme Court Term (Nineteenth Annual Supreme Court Review, October 2006 Supreme Court Term), Richard Klein

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No abstract provided.

A Response To Professor Steinberg’S Fourth Amendment Chutzpah, Fabio Arcila

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Professor David Steinberg believes that the Fourth Amendment was intended only to provide some protection against physical searches of homes through imposition of a specific warrant requirement because the Framers' only object in promulgating the Fourth Amendment was to ban physical searches of homes under general warrants or no warrants at all. This response essay takes issue with his thesis by (1) discussing its implications, (2) reviewing some concerns with his methodology in reviewing the historical record, and (3) examining the theoretical implication underlying his thesis that, except as to homes, we have a majoritarian Fourth Amendment, and questioning whether …

The Automobile Exception In Nevada: A Critique Of The Harnisch Cases, Thomas B. Mcaffee, John P. Lukens, Thaddeus J. Yurek Iii

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This Article offers a critique of Nevada's Harnisch cases and calls for the Nevada Supreme Court to reconsider its ruling. The authors begin by examining the historical development of the automobile exception, beginning with Carroll v. United States. There the Supreme Court reasoned that both probable cause and the exigency of the mobility of automobiles justified a search without a warrant. But almost seventy-five years later, in Maryland v. Dyson, the Court clarified its conclusion that the automobile exception has no separate exigency requirement. In turn, the authors will then examine Nevada's application of the automobile exception prior to 1998's …

Metaphors And Modalities: Meditations On Bobbitt’S Theory Of The Constitution, Ian C. Bartrum

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This article builds on Philip Bobbitt's remarkable work in constitutional theory, which posits a practice-based constitution based in six accepted "modalities" of argument. I attempt to supplement Bobbitt's theory - which has a static and exclusive quality to it - with an account of interpretive evolution based in Max Black's interaction theory of metaphors. I suggest that we can (and do) create constitutional metaphors by deliberately overlapping Bobbitt's modalities of argument, and that through these creative acts we can grow the practice of American constitutionalism. I then present case studies of this metaphoric process at work in three fields of …

Accommodating Respectful Religious Expression In The Workplace, Nantiya Ruan

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This Article makes the case for judicial recognition of respectful religious expression in the workplace as more consistent with the Court's Establishment Clause jurisprudence and also more true to the legislative intent of the religious accommodation provisions of Title VII. Respectful religious pluralism in the workplace should become the norm through judicial requirements of best practices in the workplace. Such a view should be wholly supported by the majority of the Justices because it is consistent with their expressed views, in the Establishment Clause case law, that religion fosters moral good and that in a pluralistic society religious expression cannot …

Overcoming Lochner In The Twenty-First Century: Taking Both Rights And Popular Sovereignty Seriously As We Seek To Secure Equal Citizenship And Promote The Public Good, Thomas B. Mcaffee

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Professor McAffee reviews substantive due process as the textual basis for modern fundamental rights constitutional decision-making. He contends that we should avoid both the undue literalism that rejects the idea of implied rights, as well as the attempt to substitute someone’s preferred moral vision for the limits, and compromises, that are implicit in—and intended by—the Constitution’s text. He argues, moreover, that we can largely harmonize the various goals of our constitutional system by taking rights seriously and understanding that securing rights does not exhaust the Constitution’s purpose.