Open Access. Powered by Scholars. Published by Universities.®

Digital Commons Network

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 21 of 21

Full-Text Articles in Entire DC Network

Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy Nov 2006

Reconsidering Spousal Privileges After Crawford, R. Michael Cassidy

Boston College Law School Faculty Papers

In this article the author explores how domestic violence prevention efforts have been adversely impacted by the Supreme Court’s new “testimonial” approach to the confrontation clause. Examining the Court’s trilogy of cases from Crawford to Davis and Hammon, the author argues that the introduction of certain forms of hearsay in criminal cases has been drastically limited by the court’s new originalist approach to the Sixth Amendment. The author explains how state spousal privilege statutes often present a significant barrier to obtaining live testimony from victims of domestic violence. The author then argues that state legislatures should reconsider ...


A Complete Property Right Amendment, John H. Ryskamp Oct 2006

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.


Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults Sep 2006

Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults

ExpressO

The Article argues in favor of shifting the balance in federal sentencing toward a more indeterminate system. By exploring the post-Booker legal landscape at both the federal and state levels, the Article asserts that the judiciary's continued reliance on the “advisory" Guidelines has practically changed federal sentencing procedures very little in form or function. Accordingly, the Article proffers that, rather than insisting upon the Guidelines' immutability, federal sentencing would do well to reflect upon its own history, and the evolution of its state counterparts.


A New Clean Water Act, Paul Boudreaux Sep 2006

A New Clean Water Act, Paul Boudreaux

ExpressO

The Supreme Court’s new federalism has struck its strongest blows so far on the Clean Water Act. This summer, in Rapanos v. United States, a sharply divided Court nearly struck down a large chunk of the Act’s protection of wetlands and other small waterways – five years after an earlier decision had narrowed the reach of the Act because of its supposed overreaching into state prerogative. Why has the Clean Water Act been the Court’s favorite target? One reason is that the statute was fatally flawed when enacted. Congress chose to cover “navigable waters,” but its practical definition ...


Semper Disqualified: The Incongruity Between Federal And State Suffrage Protections For Certain Military Voters Seeking To Vote In State And Local Elections, And A Possible Legislative Remedy, Alexandra R. Harrington Aug 2006

Semper Disqualified: The Incongruity Between Federal And State Suffrage Protections For Certain Military Voters Seeking To Vote In State And Local Elections, And A Possible Legislative Remedy, Alexandra R. Harrington

ExpressO

It is axiomatic that members of the United States military forces at all levels and throughout the course of the nation’s history have fought for the essential freedoms which underlie the constitution – key among them the suffrage right. Over the course of its history, the suffrage right has seen controversy and change, which mirrored the social and political issues and changed realities of the country. As the right to vote has been extended to encompass more citizens, so too has the ability to serve one’s country as part of the military. In recognition of the importance of the ...


The Dual Path Initiative Framework, Elizabeth Garrett, Mathew Mccubbins Jul 2006

The Dual Path Initiative Framework, Elizabeth Garrett, Mathew Mccubbins

University of Southern California Legal Studies Working Paper Series

In this Article, we focus on two complaints about initiatives that can be addressed through a new legal framework. First, some have argued that the policy choices made through direct democracy are often not socially optimal, and the processes through which initiatives are passed may make welfare-reducing decisions inevitable. Second, initiatives, once enacted, often fail to be implemented by government officials. In response to these two problems, we propose a new comprehensive framework of postqualification reforms that keeps both the spirit and intent of the initiative process: the Dual Path Initiative Process with a Citizens’ Initiative Implementation Oversight Commission.

First ...


Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp Jun 2006

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.


A Modern Disaster: Agricultural Land, Urban Growth, And The Need For A Federally Organized Comprehensive Land Use Planning Model, Jess M. Krannich Jun 2006

A Modern Disaster: Agricultural Land, Urban Growth, And The Need For A Federally Organized Comprehensive Land Use Planning Model, Jess M. Krannich

ExpressO

No abstract provided.


Pharmacy Conscience Clause Statutes: Constitutional Religious "Accommodations" Or Unconstitutional "Substaintial Burdens" On Women?, Melissa Duvall Jun 2006

Pharmacy Conscience Clause Statutes: Constitutional Religious "Accommodations" Or Unconstitutional "Substaintial Burdens" On Women?, Melissa Duvall

American University Law Review

No abstract provided.


Review Essay: Using All Available Information, Max Huffman May 2006

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining ...


Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp May 2006

Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp

ExpressO

Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action.


Making Our Congressional Elections More Competitive: A Proposal For A Limited Number Of Statewide At Large Elections In Our More Populous States, Walter M. Frank May 2006

Making Our Congressional Elections More Competitive: A Proposal For A Limited Number Of Statewide At Large Elections In Our More Populous States, Walter M. Frank

ExpressO

Competitive elections for the House of Representatives are at an all time low. Law professors, political scientists and political analysts all along the political spectrum believe that the current situation not only makes for unaccountable legislators and an uneducated electorate but is also slowly poisoning our politics by making government needlessly ideological and partisan. Unfortunately, most of the proposed remedies call for reforms at the state level that in any event do not hold out the prospect of changing the current pattern in the future. This article proposes federal legislation to deal with this problem through the creation of statewide ...


Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau May 2006

Stealing What's Free: Exploring Compensation To Body Parts Sources For Their Contribution To Profitable Biomedical Research, Jo-Anne Yau

ExpressO

It is undisputed in the biotechnology industry that human body parts play a vital role in research. The body parts donors, referred to as "Sources" in this article, are subjected to physical and financial exploitation. Forbidding the explosion of profits from trickling down to the Source presents an irrational inequity. Despite established law, it is evident from case analysis, prevailing social practices, and constitutional interpretation that Source compensation is a plausible solution.

This article proposes a model of compensation for Sources, whereby Sources are compensated based on a proportionate share of the research profits set aside for the Source as ...


Privacy And Access To Public Records In The Information Age, Sol Bermann May 2006

Privacy And Access To Public Records In The Information Age, Sol Bermann

ExpressO

Online public record access brings a wealth of benefits ranging from greater government access and accountability to increased cost-savings and efficiencies. However, due to the presence of highly sensitive, personal data, an increase in public records access also brings potential dangers, including heightened risk of identity theft and frivolous snooping into the affairs of others.

Historically, public records have had some measure of public accessibility in order to empower citizens with the ability to observe the goings-on of government, leading to greater government accountability. Until the rise of the internet, citizens have had their privacy protected through practical obscurity (the ...


The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez Mar 2006

The Children Of Science: Property, People, Or Something In Between?, Star Q. Lopez

ExpressO

How should states classify embryos? The war has often waged between two classifications, people versus property. But what if a state assumed something in between, finding the embryo to be a potential person entitled to special respect? If a state adopted this position, how would the law affect medical research?

Presuming embryos constitute potential persons, the debate would continue with how to define “special respect.” The status of a potential person runs along a spectrum between property and personhood. How one defines “special respect” determines where the potential person falls along this spectrum. Special respect would create a spectrum of ...


Backlash To Globalization In The Form Of State Legislation: Constitutional Implications, John R. Weber Mar 2006

Backlash To Globalization In The Form Of State Legislation: Constitutional Implications, John R. Weber

ExpressO

This paper will examine the Constitutional issues raised by the influx of state anti-outsourcing legislation using a recently enacted New Jersey statute. The New Jersey statute is very similar to, and contains many of the same features as, many other bills introduced in legislatures across the nation. Moreover, the political impetus for the introduction and enactment of the legislation reflects the struggle over the outsourcing issue that is occurring in communities nationwide.


Statutory Interpretation, Constitutional Limits, And The Dangers Of Collaboration: The Ironic Case Of The Voting Rights Act, Luis Fuentes-Rohwer Mar 2006

Statutory Interpretation, Constitutional Limits, And The Dangers Of Collaboration: The Ironic Case Of The Voting Rights Act, Luis Fuentes-Rohwer

ExpressO

The Voting Rights Act of 1965 is widely known as the most effective civil rights statute in history. This is an expected distinction, as President Johnson asked for and ultimately signed the “goddamnedest toughest” legislation possible. But the President and the 89th Congress could not do this important work alone. They knew that the substantive provisions of the statute presented a difficult challenge to established constitutional norms and for this reason they offered a broad and expansive statutory canvass. In so doing, and as this Article argues, they implicitly enlisted the U.S. Supreme Court as a key player in ...


Choice In Government Software Procurement: A Winning Combination, Mclean Sieverding Feb 2006

Choice In Government Software Procurement: A Winning Combination, Mclean Sieverding

ExpressO

Governments are such significant purchasers of IT products and services that their purchasing decisions have a substantial impact on the world’s IT marketplace. This fact calls into question the wisdom of decisions by a few policymakers (on national, state, and local levels) around the world that have sought to require that governmental procurement officials give varying degrees of preference to open source software (OSS) when evaluating competing software solutions, claiming, among other things, that such preferences are justified because OSS is cheaper and more interoperable than proprietary software and needs government handicapping in order to enter the market to ...


Transparency In The Budget Process, Elizabeth Garrett, Adrian Vermeule Jan 2006

Transparency In The Budget Process, Elizabeth Garrett, Adrian Vermeule

University of Southern California Legal Studies Working Paper Series

Budget procedures are often adopted or changed to improve “transparency” in budgeting. This phrase can refer to two different, although related, stages of the budget process. First, transparency may refer to the outputs of budgeting; here the ideal is that the tradeoffs inherent in a budget should be made clear, salient and understandable to policy makers and the public. Second, transparency may refer to the inputs of budgeting; here the ideal is to ensure that the decision-making process is itself conducted in public. This paper focuses on the second concept of budget transparency – the degree to which important budgeting decisions ...


Small V. United States: Defining "Any" As A Subset Of "Any", Lee G. Lester Jan 2006

Small V. United States: Defining "Any" As A Subset Of "Any", Lee G. Lester

University of Richmond Law Review

"It shall be unlawful for any person.., who has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year ... to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition ...." Although this statute, 18 U.S.C. § 922(g)(1), was enacted to keep firearms out of the hands of persons not entitled to possess them because of their criminal backgrounds, the scope of this statute has been controversial. Specifically, the federal circuits have disagreed as to whether the phrase "any court" applies to foreign ...


Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan Dec 2005

Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan

Donald J. Kochan

With increasing frequency and heightened debate, United States courts have been citing foreign and “international” law as authority for domestic decisions. This trend is inappropriate, undemocratic, and dangerous. The trend touches on fundamental concepts of sovereignty, democracy, the judicial role, and overall issues of effective governance. There are multiple problems with the judiciary’s reliance on extraterritorial and extra-constitutional foreign or international sources to guide their decisions. Perhaps the most fundamental flaw is its interference with rule of law values. To borrow from Judge Harold Levanthal, the use of international sources in judicial decision-making might be described as “the equivalent ...