Digital Commons Network^™

The Roots Of Collapse: Imposing Constitutional Governance, Catherine Baylin Duryea

Faculty Publications

The foundational assumption of constitutional governance poses a conundrum for contemporary state-builders: a constitution heavily influenced by foreigners does not represent the views of the governed. Can a modern state-building effort foster democratic institutions when the new government reflects foreign? Nowhere was this tension more apparent than in Afghanistan, where the United States and the United Nations were heavily involved in drafting the 2004 Constitution. They shaped the process from the initial framework to the final, frenzied approval. Foreigners were engaged at both the procedural level—determining how the negotiations would occur and who would participate—and at the substantive level—providing input …

Precedent, Non-Universal Injunctions, And Judicial Departmentalism: A Model Of Constitutional Adjudication, Howard Wasserman

Faculty Publications

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:

1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;

2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;

3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” …

Profound Sophistication Or Legal Sophistry, Ediberto Román, Katryna Santa Cruz, Melissa Gonzalez, Dianet Torres

Faculty Publications

No abstract provided.

Carpenter Privacy Case Vexes Justices, While Tech Giant Microsoft Battles Government In Second U.S. Supreme Court Privacy Case With International Implications, Richard J. Peltz-Steele

Faculty Publications

Fall 2017 saw a major privacy case with international implications reach the U.S. Supreme Court this term, Carpenter v. United States. Now a second such case pits the Government against Big Tech in United States v. Microsoft. Carpenter is a criminal case involving federal seizure of cell phone location data from service providers. Arising under the “reasonable grounds” provision of the Stored Communications Act (SCA), the case accentuates Americans’ lack of constitutional protection for personal data in third-party hands, in contrast with emerging global privacy norms. The second major privacy case headed for Supreme Court decision in 2018 also arises …

Holmes And Brennan, Howard Wasserman

Faculty Publications

This article jointly examines two legal biographies of two landmark First Amendment decisions and the justices who produced them. In The Great Dissent (Henry Holt and Co. 2013), Thomas Healy explores Oliver Wendell Holmes’s dissent in Abrams v. United States (1919), which arguably laid the cornerstone for modern American free speech jurisprudence. In The Progeny (ABA 2014), Stephen Wermiel and Lee Levine explore William J. Brennan’s majority opinion in New York Times v. Sullivan (1964) and the development and evolution of its progeny over Brennan’s remaining twenty-five years on the Court. The article then explores three ideas: 1) the connections …

Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbulling Laws, Emily Suski

Faculty Publications

For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This …

The Constitutional Limit Of Zero Tolerance In Schools, Derek W. Black

Faculty Publications

With the introduction of modern zero tolerance policies, schools now punish much more behavior than they ever have before. But not all the behavior is bad. Schools have expelled the student who brings aspirin or fingernail clippers to campus, who does not know that a keychain knife in his backpack, or who reports having taken away a knife from another student in order to keep everyone safe. Despite challenges to these examples, courts have upheld the suspension and expulsion of this good-faith, innocuous behavior. With little explanation, courts have opined that the Constitution places no meaningful limit on the application …

Pre-Constitutional Law And Constitutions: Spanish Colonial Law And The Constitution Of Cádiz, M C. Mirow

Faculty Publications

This article contributes to the intellectual and legal history of this constitutional document. It also provides a close study of how pre-constitutional laws are employed in writing constitutions. It examines the way Spanish colonial law, known as "derecho indiano" in Spanish, was used in the process of drafting the Constitution and particularly the way these constitutional activities and provisions related to the Americas. The article asserts that this pre-constitutional law was used in three distinct ways: as general knowledge related to the Americas and their institutions; as a source for providing a particular answer to a specific legal question; and …

Eyes In The Sky: Constitutional And Regulatory Approaches To Domestic Drone Deployment, Hillary B. Farber

Faculty Publications

This article begins with a current look at the deployment of drones domestically, both in terms of their use and the procedure for attaining approval for flight. Part II examines the capabilities of drones. Part III considers the Supreme Court's current Fourth Amendment jurisprudence and its application to law enforcement's use of drones. Part IV reviews existing and proposed federal and state regulation of drones. Part V offers constitutional and legislative prescriptions for regulating drones.

The Meaning Of Science In The Copyright Clause, Ned Snow

Faculty Publications

The Constitution premises Congress’s copyright power on promoting “the Progress of Science.” The word Science therefore seems to define the scope of copyrightable subject matter. Modern courts and commentators have subscribed to an originalist view of Science, teaching that Science meant general knowledge at the time of the Framing. Under this interpretation, all subject matter may be copyrighted because expression about any subject increases society’s store of general knowledge. Science, however, did not originally mean general knowledge. In this Article, I examine evidence surrounding the Copyright Clause and conclude that at the Framing of the Constitution, Science meant a system …

Resistance To Constitutional Theory: The Supreme Court, Constitutional Change, And The "Pragmatic Moment", B. Jessie Hill

Faculty Publications

This Article approaches the law-politics divide from a new angle. Drawing on the insights of literary theory, this Article argues that every act of interpretation, including constitutional interpretation, inevitably draws not only on text but also on context, and that the relevant context extends beyond both the written document and the historical context of its origination. This understanding derives from speech-act theory and from postmodern literary theory. As Paul de Man argues in his seminal essay, The Resistance to Theory, moreover, the act of interpretation always encompasses a “pragmatic moment” that undermines the effort to attain perfect theoretical coherence. Applying …

Judicial Engagement, Written Constitutions, And The Value Of Preservation: The Case Of Individual Rights, Elizabeth Price Foley

Faculty Publications

When judges alter a written constitution because its original meaning is no longer convenient, useful or modern, they engage in judicial activism. They are actively seeking to modify the written social compact to suit their own, or their perception of society’s, current preferences. Judicial activism is a usurpation of the proper judicial role, and it undermines the proper role of We the People. Only the People may amend the written constitution when a sufficiently large number (i.e., a supermajority) believes strongly enough that a formal, written modification of the social charter is necessary. Judicial engagement refers to the need for …

The Constitution Of Cádiz In Florida, M C. Mirow

Faculty Publications

The article explores the vibrant constitutional community that existed in St. Augustine and the province of East Florida in the final decade of Spanish control of the area. Based on relatively unexplored primary sources, it reveals a great deal of unknown information about the importance of the Constitution in Florida immediately before the territory was transferred to the United States. The article provides full description of the Constitution's promulgation in 1812 and a second promulgation of the Constitution in 1820 (something unknown in the general literature). It also addresses the construction of the St. Augustine monument to the Constitution erected …

Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow

Faculty Publications

Issues of fair use in copyright cases are usually decided at summary judgment. But it was not always so. For well over a century, juries routinely decided these issues. The law recognized that fair use issues were highly subjective and thereby inherently factual — unfit for summary disposition by a judge. Today, however, all this has been forgotten. Judges are characterizing factual issues as purely legal so that fair use may be decided at summary judgment. Even while judges acknowledge that reasonable minds may disagree on these issues, they characterize the issues as legal, preventing them from ever reaching a …

The Constitutional Right To A Treaty Preemption Defense, David Sloss

Faculty Publications

The Constitution includes several provisions specifically designed to protect criminal defendants. For example, the Fourth Amendment prohibits "unreasonable searches and seizures," the Sixth Amendment guarantees that criminal defendants have a right to legal representation, and the Eighth Amendment prohibits cruel and unusual punishments. The Constitution' s Founders recognized that state power is at its apex when the state threatens individuals with criminal sanctions. Accordingly, they adopted special constitutional rules to protect "the individual defendant from the awesome power of the State."

The Due Process Clause provides critical protection for criminal defendants; it stipulates that no State shall "deprive any person …

Constitutional Referendum In The United States Of America, William B. Fisch

Faculty Publications

The United States of America, as a federation of now 50 states each with its own constitution and legal system still enjoying a large degree of governmental autonomy within the national legal framework, presents a strikingly mixed picture regarding the use of direct democracy--the submission of proposed governmental action to a popular vote--in law- and constitution-making processes. At the national level, direct democracy has never been used for either type of enactment. At the state and local level, however, its use dates back to colonial times and has been increasing gradually (though still not universal) ever since. Since the mid-19th …

The Imaginary Connection Between The Great Law Of Peace And The United States Constitution: A Reply To Professor Schaaf, Erik M. Jensen

Faculty Publications

This article challenges the politically correct theory advanced in a 1989 article by Gregory Schaaf, “From the Great Law of Peace to the Constitution of the United States: A Revision of America’s Democratic Roots.” Professor Schaaf argued that large parts of the U.S. Constitution were based on the Great Law of Peace, the founding document of the Iroquois Confederacy. This article points to the lack of primary authority supporting such a counterintuitive proposition and questions the likelihood that Iroquois principles could have silently influenced American founders. Finally, the article questions whether it is desirable to try to further the status …

The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski

Faculty Publications

This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8.

The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and …

Some Reflections On The Symposium: Judging, The Classical Legal Paradigm And The Possible Contributions Of Science, Christina E. Wells

Faculty Publications

One theme running through the many excellent contributions to this symposium involves the myriad influences on judicial decision-making. As Professor Wrightsman notes, Supreme Court Justices' personal characteristics may affect their ability to influence colleagues and, consequently, the outcome of Supreme Court decisions. Professor Ruger observes that judges have both attitudinal and jurisprudential preferences that may change over time, affecting legal outcomes differently as time passes. Professor Sisk similarly notes that judges' personal values and experiences influence their decision-making. These observations are consistent with those of numerous other scholars, who find wide-ranging and diverse influences on the judicial resolution of legal …

Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben

Faculty Publications

Scholars have approached arbitration, especially under the Federal Arbitration Act, from a variety of perspectives, including doctrinal, historical, empirical, and practical. One aspect that has not yet been fully considered, however, is the relationship between arbitration and constitutional democracy. Yet, as a dispute-resolution process that is often sanctioned by the government, that sometimes inextricably intertwines governmental and private conduct, and that derives its legitimacy from the government, it is appropriate--indeed, our responsibility--to ask whether arbitration furthers the goals of democratic governance. It is only sensible that state-supported dispute resolution in a democracy should strengthen, rather than diminish, democratic governance and …

The Constitutional Failing Of The Anticybersquatting Act, Ned Snow

Faculty Publications

Eminent domain and thought control are occurring in cyberspace. Through the Anticybersquatting Consumer Protection Act (ACPA), the government transfers domain names from domain-name owners to private parties based on the owners' bad-faith intent. The owners receive no just compensation. The private parties who are recipients of the domain names are trademark holders whose trademarks correspond with the domain names. Often the trademark holders have no property rights in those domain names: trademark law only allows mark holders to exclude others from making commercial use of their marks; it does not allow mark holders to reserve the marks for their own …

Encouraging Courage: Law's Response To Fear And Risk, William B. Fisch

Faculty Publications

Our three papers provide a helpful review of the many things that can go wrong with our system for the protection of civil liberties under the pressures of war or other emergencies. Professor Winfield focuses on the U.S. Attorney General, the non-judicial officer from whom the public might expect the highest fidelity to the law and the constitution. She offers a sobering perspective on the ways in which those expectations can be and have been disappointed. The star of her taxonomy, I take it, is the Leveler, who reaches an independent (and rights-protective!) view of the law and works to …

Constitutional Theory In A Nutshell, Thomas E. Baker

Faculty Publications

This article provides a nutshell description of the leading theories and identifies some of the leading theorists on the Constitution. The unit of currency here is the academic law review article, not the Supreme Court decision. The citations here provide illustrative examples of the vast body of literature. The discussion provides preliminary sketches of an intellectual landscape that is vast and often foreboding to the beginner. This article is organized around three basic interpretative questions: Who has the authority to interpret the Constitution? What are the legitimate sources of meaning for interpreting the Constitution? How is the Constitution interpreted within …

Hate Speech In The Constitutional Law Of The United States, William B. Fisch

Faculty Publications

Our general reporter, Professor Pizzorusso, has given us “incitement to hatred” - primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like--as the working definition of “hate speech”, and asks to what extent such speech is constitutionally protected in the reporting countries. The United States of America are known at least in recent times for providing exceptionally broad protection for otherwise objectionable speech and expression, and hate speech is understood to be one of the areas in which they have positioned themselves further out on the speech-protective end of …

The Constitutional Implications Of A Cloning Society, Elizabeth Price Foley

Faculty Publications

This paper examines the social and legal implications of human cloning.

A Symposium Précis, Thomas E. Baker

Faculty Publications

This article is an introduction to and overview of the Drake University Law School symposium The Constitution and the Internet, held in February of 2001. It highlights important issues including the Constitution and the Internet, civil liberty and the application of a 200 year old document to the modern age of rapidly changing technology.

United States Supreme Court: 2001 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Constitutional Implications Of Human Cloning, Elizabeth Price Foley

Faculty Publications

Given the theoretical inevitability of human cloning, this Article attempts to fill a current intellectual void by providing an analysis of the most significant legal implications of cloning human beings. Part II sets forth the basic science behind cloning and how cloning differs from other, non-traditional forms of procreation such as in vitro fertilization and artificial insemination. Part III discusses the most commonly feared “science fiction” abuses associated with human cloning and current laws that may prevent such abuses from occurring. Part IV discusses the possible constitutional impediments to banning human cloning, including the First Amendment, the procreational liberty interest …

Simultaneous Copyright And Trade Secret Claims: Can The Copyright Misuse Defense Prevent Constitutional Doublethink?, Ralph D. Clifford

Faculty Publications

As the Constitution authorizes Congress to grant copyrights, it subjects the power to a public purpose requirement. Any monopoly Congress grants must be for the purpose of “promot[ing] the progress of science and useful arts.” But one result of Congress enacting the 1976 Act is a potential conflict between the Act and this public purpose requirement. An owner of intellectual property may believe that both copyright law – which mandates disclosure – and trade secret law – which mandates secrecy – can be used simultaneously. To believe that disclosure and secrecy can coexist is doublethink as both cannot be true. …

Towards A More Perfect Union: Some Thoughts On Amending The Constitution, Thomas E. Baker

Faculty Publications

No abstract provided.