Digital Commons Network^™

Making War, John C. Yoo, Robert Delahunty

John C Yoo

We respond here to Unleashing the Dogs of War by Sai Prakash, which represents the latest originalist argument that war cannot be started by the executive without congressional authorization. First, we argue that Prakash's interpretive approach imposes an unexplained burden of proof that places little to no importance on the starting point for constitutional interpretation: the text. The best reading of the text rejects Prakash's claim about Congress's power to declare war. We supplement our textualist reading by exploring constitutional structure, which should not tolerate the redundancies created by Prakash's approach. The key point here is that the constitutional structure …

Neutral Principles, Jesse R. Merriam

Jesse R Merriam

No abstract provided.

State Habeas Relief For Federal Extrajudicial Detainees, Todd E. Pettys

Todd E. Pettys

I argue that the Court’s nineteenth-century rulings in Ableman v. Booth and Tarble’s Case marked a little-known but sharp break with state courts’ decades-long practice of granting habeas relief to federal extrajudicial detainees. I contend that the Court’s reasoning in those cases is unpersuasive, and that modern efforts to rationalize those cases’ outcomes fare no better. I also argue that the Suspension Clause bars Congress from stripping state courts of their power to grant habeas relief to persons being extrajudicially detained by federal authorities.

Symbolic Speech: A Message From Mind To Mind, James Mcgoldrick

James M McGoldrick Jr.

Some expressive conduct is treated as speech, and some as just conduct, but there is no clear way to tell them apart. A gesture of a middle finger thrust into the air, directed from one driver to another driver, seems to be speech at its purest form without either noise or tangible remains. The message moves effortlessly from enclosed metal and glass across lanes of traffic into the enclosed space of another, all with little difficulty, yet with great force and often psychic injury. Still, no one would think that all of the symptoms of road rage–tailgating, aggressive lane changes, …

Mississippi River Stories: Lessons From A Century Of Floods And Hurricanes, Sandra Zellmer, Christine Klein

Sandi Zellmer

n the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “manmade” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood …

Let's Talk About Sex (Education): A Novel Interpretation Of The Meyer-Pierce Standard Governing Parental Control In Public Schools, Jacqueline Webb

Jacqueline Webb

This Comment addresses the importance of parental control with regard to sex education in public schools and provides a workable middle of the road standard which balances the Constitutionally-granted rights of parents to control the upbringing of their children with the State’s interest in the education of its youngest citizens.

This Comment argues that the Meyer-Pierce standard has been incorrectly interpreted as creating two polar opposite views with regard to parental control in public schools, and a middle of the road standard is a more suitable application which protects both the parents’ Constitutionally-granted rights and the States’ interest. Part II …

Does Due Process Have An Original Meaning? On Originalism, Due Process, Procedural Innovation . . . And Parking Tickets, Lawrence Rosenthal

Lawrence Rosenthal

Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems …

Saving Savings Clauses From Judicial Preemption, Sandra Zellmer

Sandi Zellmer

Savings clauses can be found in an array of federal statutes governing public health, welfare, and environmental quality. Like explicit preemption provisions, the function of a savings clause is to differentiate the boundaries of federal and state authority. Unlike preemption clauses, however, savings clauses strike the balance in favor of the states and state law remedies. Despite the existence of savings clauses, many of the Supreme Court’s recent preemption opinions have invalidated state laws that are more stringent than the federal regulatory threshold, based on a crabbed interpretation of statutory language, a myopic view of congressional purposes, or both. Even …

Reforming Eyewitness Identification Procedures Under The Fourth Amendment, Sarah Anne Mourer

Sarah Mourer

This article proposes that the high probability of misidentification associated with unregulated eyewitness identification procedures requires Fourth Amendment protections. This risk of misidentification amounts to a significant privacy intrusion under the Fourth Amendment. The physical aspect of a lineup is recognized by courts as a privacy invasion pursuant to the Fourth Amendment. Courts, such as Davis. v. Mississippi, also suggest that the lack of reliability of pretrial investigatory procedures requires heightened Fourth Amendment protections. This article also examines the fact that a procedural due process analysis of eyewitness identifications alone fails to protect citizens from misidentification and should not be …

To Speak Or Not To Speak? Navigating The Treacherous Waters Of Parallel Investigations Following The Amendment Of Federal Rule Of Evidence 408, Mikah K. Story Thompson

Mikah K. Story Thompson

This article is the first to explore the true impact of the recently amended Fed. R. Evid. 408 on parallel proceedings. Parallel proceedings exist where the government conducts both a civil and criminal investigation against a defendant for single instance of alleged misconduct. Prior to the rule’s amendment, a defendant facing parallel proceedings had the ability to negotiate settlement of the civil suit without fear that any incriminating statements made during settlement talks would later re-surface in the criminal case. However, the amendment to Rule 408 singles out defendants facing parallel proceedings by stating that the government may use any …

Domestic Surveillance For International Terrorists: Presidential Power And Fourth Amendment Limits, Richard H. Seamon

Richard H Seamon

After 9/11, the President authorized the National Security Agency to conduct warrantless electronic surveillance of American residents. Critics of this so called “Terrorist Surveillance Program” (TSP) say it violates the Foreign Intelligence Surveillance Act of 1978 (FISA) and the Fourth Amendment. Defenders of the TSP counter that, regardless whether it violates FISA, it falls within the President's congressionally irreducible power to protect national security and within the relaxed Fourth Amendment governing national security searches. This article focuses on the overlooked connection between the issues of whether the TSP (1) falls within the President’s powers; or (2) violates the Fourth Amendment. …

What Would Harry Potter Say About Bong Hits 4 Jesus? , Andrea Kayne Kaufman

Andrea Kayne Kaufman

In Morse v. Frederick, the Supreme Court considered whether a high school principal, Morse, violated a student’s First Amendment right to free speech by suspending the student, Frederick, for refusing to take down a banner reading, “BONG HiTS 4 JESUS” while students were watching the Olympic torch relay pass in front of their school. In a divided decision, the Supreme Court held that the school officials did not violate the First Amendment by confiscating the banner and subsequently suspending the student. The majority’s reasoning, in large part, is based on the fact that “schools may take steps to safeguard those …

Reflections On The Technicolor Right To Association In American Labor And Employment Law, Paul M. Secunda

Paul M. Secunda

It is time to rethink how the United States enforces the right of association in the workplace. The proliferation of political associational rights, intimate association rights, and expressive association rights in the constitutional sphere over the last thirty years has made the scope of this fundamental civil liberty confusing and hard to enforce. Outside of the constitutional framework, which generally applies only to public employees, low union density and the lack of common law associational claims have made private-sector employees' associational rights vulnerable. The unfortunate consequence may be that American workers currently enjoy less associational freedoms than almost any other …

Wartime Process: A Dialogue On Congressional Power To Remove Issues From The Federal Courts, John C. Yoo, Jesse Choper

John C Yoo

Many have long debated whether Congress may strip the federal courts completely of jurisdiction over certain classes of cases. Until the last few years, these debates met the very definition of academic. Aside from two statutes, Congress had never engaged in clear removal of cases from the Supreme Court or the lower federal courts. That changed with the Court's decision in Rasul v. Bush, which extended the federal writ of habeas corpus to alien enemy combatants detained at the Guantanamo Bay, Cuba Naval Station. In response to Rasul, Congress enacted the Detainee Treatment Act of 2005 (DTA), which forbade any …

Valuing Integration: Lessons From Teachers, Wendy Marie Parker

Wendy Marie Parker

The Supreme Court ended its last term by making unconstitutional a choice Brown v. Board of Education once required – the voluntary, and race conscious, pursuit of integration – to little public outcry. As a society, we continue to find comfort in segregation. This Article argues that this acceptance is wrong, both educationally and constitutionally. It does so through the lens of teacher segregation, a topic all but ignored in the current literature. The first step of this argument is demonstrating, by an original empirical study, the segregation of teachers, thereby proving a more profound school segregation than is generally …

Lanard V. Gm , Malla Pollack

Malla Pollack

No abstract provided.

Wartime Process: A Dialogue On Congressional Power To Remove Issues From The Federal Courts, John C. Yoo, Jesse Choper

Jesse H Choper

Many have long debated whether Congress may strip the federal courts completely of jurisdiction over certain classes of cases. Until the last few years, these debates met the very definition of academic. Aside from two statutes, Congress had never engaged in clear removal of cases from the Supreme Court or the lower federal courts. That changed with the Court's decision in Rasul v. Bush, which extended the federal writ of habeas corpus to alien enemy combatants detained at the Guantanamo Bay, Cuba Naval Station. In response to Rasul, Congress enacted the Detainee Treatment Act of 2005 (DTA), which forbade any …

No Right To Respect: Dred Scott And The Southern Honor Culture, Cecil J. Hunt

Cecil J. Hunt II

Article Abstract: No Right to Respect: Dred Scott and the Southern Honor Culture; by Professor Cecil J. Hunt, II This article reflects on the 150th anniversary of the infamous decision in Dred Scott v. Sanford, 19 How. (60 U.S.) 393 (1857) in which the Supreme Court of the United States upheld the constitutionality of slavery. This essay is part of the considerable national effort by all of the constituencies in the American legal community to reflect on this infamous case and consider the distance the nation has come since it was decided as well as its continuing legacy on the …

Book Review: A Well Regulated Militia, David T. Hardy

David Hardy

Professor Saul Cornell's book "A Well-Regulated Militia" The Founding Fathers and the Origin of Gun Control in America" is the latest contribution to the continuing debate over the status of the American right to arms. While Prof. Cornell's work uncovers some new aspects of the history of that right, it suffers from a strongly one-sided approach to that history, omitting or re-interpreting evidence suggesting that many Framers' views did not fit within the thesis of the work.

Development And Problems Of Public Interest Litigation In Bangladesh: A Critical Analysis, Abu Noman Mohammad Atahar Ali, Zafrin Andaleeb

Abu Noman Mohammad Atahar Ali

No abstract provided.

The Expressive Workplace Doctrine: Protecting The Public Discourse From Hostile Work Environment Actions, Jonathan Segal

jonathan l. segal

No abstract provided.

Benefiting Society And Children Through Violent Media: As Evidenced By First Amendment Protection For Violent Video Games, Austin Nowakowski

Austin James Nowakowski

This article discusses the constitutional, psychological, and societal reasons for why the courts have never upheld any laws censoring violent video games.

Antisubordination Of Whom? What India’S Answer Tells Us About The Meaning Of Equality In Affirmative Action, Sean Pager

Seattle University

Who should be the beneficiaries of race-conscious affirmative action? Conspicuous by its absence in the US affirmative action debate, this question takes us beyond conventional majority/minority discourse and forces us to confront questions of comparative entitlement. Asking the “Who Question” serves to illuminate a much larger debate over the nature of equality itself. Two paradigms of equal protection compete in modern scholarship: antidiscrimination vs. antisubordination. Yet, neither offers a satisfactory method to select affirmative action beneficiaries on its own.

The Supreme Court’s current antidiscrimination approach to affirmative action remains incomplete. In focusing solely on remedying particularized underrepresentation, the Court tells …

Letting Katz Out Of The Bag: Cognitive Freedom And Fourth Amendment Fidelity, Christian Halliburton

Erin Espedal

Emerging surveillance technologies now allow operators to collect information located within the brain of an individual, allow the collection of forensic evidence regarding cerebral and cognitive processes, and are even beginning to be able to predict human intentions. While science has not yet produced a mind-reading machine per se, the devices referred to as “cognitive camera technologies” are substantial steps in the direction of that inevitable result. One such technique, a proprietary method called Brain Fingerprinting, is used as an example of the strong trend towards increasingly invasive and ever more powerful surveillance methods, and provides an entrée to a …

Antisubordination Of Whom? What India’S Answer Tells Us About The Meaning Of Equality In Affirmative Action, Sean Pager

Seattle University

Who should be the beneficiaries of race-conscious affirmative action? Conspicuous by its absence in the US affirmative action debate, this question takes us beyond conventional majority/minority discourse and forces us to confront questions of comparative entitlement. Asking the “Who Question” serves to illuminate a much larger debate over the nature of equality itself. Two paradigms of equal protection compete in modern scholarship: antidiscrimination vs. antisubordination. Yet, neither offers a satisfactory method to select affirmative action beneficiaries on its own.

The Supreme Court’s current antidiscrimination approach to affirmative action remains incomplete. In focusing solely on remedying particularized underrepresentation, the Court tells …

The Judicial Restraint Of The Warren Court (And Why It Matters), Rebecca E. Zietlow

Rebecca E Zietlow

Abstract: The Judicial Restraint of the Warren Court (and Why it Matters)

This article argues that the strongest contribution that the Warren Court made to expanding equality rights was not its judicial activism in protecting those rights, but its restraint in allowing Congress to protect those rights. This argument may seem counter-intuitive given that the Warren Court is practically synonymous with judicial activism. Indeed, the Warren Court’s activism in protecting individual rights provides the paradigm for those constitutional scholars who argue that an active judiciary is necessary for the adequate protection of those rights. However, this paradigm is relatively new. …

Was Shelley V. Kraemer Incorrectly Decided? Some New Answers (Winner Of The 2006 Outstanding Scholarly Paper Award From The Association Of American Law Schools), Mark D. Rosen

Mark D. Rosen

Shelley v. Kraemer, the 1948 decision that famously forbade state courts from enforcing racially restrictive covenants, has proven to be immensely difficult to justify. Under Shelley's attribution rationale, a contract's substantive provisions are to be attributed to the state when a court enforces the contract. Thus although Shelley ruled that racially restrictive covenants themselves were perfectly legal, it held that judicial enforcement of the covenants constituted state action that violated the Equal Protection Clause. Shelley's attribution rationale meant that courts could not enforce contracts with provisions that could not have been constitutionally enacted by a legislature. This Article shows, however, …

The Looming Collapse Of Restrictions On Judicial Campaign Speech, Nat S. Stern

Nat S Stern

In Republican Party of Minnesota v. White, the Supreme Court in 2002 struck down Minnesota’s ban on a judicial candidate’s “announc[ing] his or her views on disputed legal or political issues.” Since then, the American Bar Association and many states have revised their codes of judicial conduct to comply with White’s specific holding while seeking to retain other limitations on judicial campaign speech. Such efforts, however, ignore the broader implications of the Court’s opinion in White. Both the logic of that opinion and the ideological inclinations of the current Court point to the likely invalidation of major portions of these …

Prediction Markets And The First Amendment, Miriam A. Cherry

Miriam A. Cherry

What would happen if new laws banning on-line gambling were used to target prediction markets? The answer is a clash with the First Amendment. The continuing development of prediction markets is important because of their success at foretelling the future. Unfortunately, overly restrictive gambling laws could jeopardize the progress of prediction markets. In this Article, we identify the expressive elements inherent in prediction markets and explore how legislation such as the Unlawful Internet Gambling Enforcement Act of 2006 might harm such predictive speech. This Article is the first to explore First Amendment protections for prediction markets, and in so doing, …

Webmail At Work: The Case For Protection Against Employer Monitoring , Marc A. Sherman

Marc Adam Sherman

This paper is about privacy in the workplace. Specifically, I address the issue of employer monitoring of employee email. The law allows employers to monitor their workers’ email – even when messages contain private information. However, although the law is clear with respect to employer-provided email, it is not yet defined as to webmail. That is – this paper shows that relevant statutes and court decisions generally have not yet addressed the privacy issues that arise when an employer monitors email sent by an employee via the employee’s personal web-based email account.

After revealing this webmail gap in the law, …