Digital Commons Network^™

The Cost Of Good Intentions: Why The Supreme Court's Decision Upholding Affirmative Action Admission Programs Is Detrimental To The Cause, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

This article provides an overview of the Federal Courts’ interpretation of equal protection challenges to affirmative action admission policies beginning with University of California v. Bakke through the recent Supreme Court decisions of Grutter v. Bollinger and Gratz v. Bollinger. The article then identifies and outlines the appropriate elements of a constitutionally sound affirmative action admission policy. Finally, the article concludes that the permissible policy is almost unattainable for schools other than small institutions.

The Political Economy Of Education Federalism, Michael Heise

Cornell Law Faculty Publications

The No Child Left Behind Act represents the federal government's most significant foray into the nation's elementary and secondary public school policymaking terrain. Although the Act undertakes unassailable policy goals, its critics argue that it represents an unwarranted federal intrusion into education policymaking, generates unintended policy consequences, and amounts to an unfunded federal mandate. Constitutionalists dwell on the Act's threat to structural federalism as it plausibly strains Congress's conditional spending authority. The coercive force that federal education funds exert on local school districts and states attracts particular attention. The No Child Left Behind Act, however, safely navigates through an even …

Exploring The Myths About The Ninth Circuit, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Unintended Consequences Of The Fourteenth Amendment And What They Tell Us About Its Interpretation, Richard L. Aynes

Richard L. Aynes

The Fourteenth Amendment has been compared to “second American Constitution.” Indeed, it is said that more litigation is based upon the Fourteenth Amendment or its implementing statutes than any other provision of the Constitution. As one would imagine for such an important charter of government, there is a substantial—and some might say overwhelming—body of scholarship on the “intent,” “meaning,” and “understanding” of the Fourteenth Amendment. Much of the literature, understandably, seeks to find out what the framers of the amendment or the ratifiers of the amendment “intended.” What did they want to accomplish by adopting this amendment? This article treats …

Why The Catholic Majority On The Supreme Court May Be Unconstitutional, Symposium On Catholicism And The Court, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Supreme Constitutional Court Of Egypt On Islamic Law, Veiling And Civil Rights: An Annotated Translation Of Supreme Constitutional Court Of Egypt Case No. 8 Of Judicial Year 17, Clark B. Lombardi, Nathan J. Brown

Articles

The jurisprudence of the Supreme Constitutional Court of Egypt is creative and influential in the Arab world. Among its opinions, Case No. 8 of Judicial Year 17, decided on May 18, 1996, is particularly interesting. In this opinion, the SCC argues that a regulation on face-veiling in public schools is consistent not only with Islamic law, but with the Egyptian Constitution's guarantees of freedom of religion and freedom of expression. Not only does it illustrate the SCC's approach to Islamic legal reasoning, but it gives insight into the Court's views with respect to civil and political rights. The case also …

"Can You Hear Me Now?": Expectations Of Privacy, False Friends, And The Perils Of Speaking Under The Supreme Court's Fourth Amendment Jurisprudence, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

Part I of this article offers a brief history of the development of Fourth Amendment jurisprudence and the Court's articulation and application of what has come to be known as the exclusionary rule, which forbids some (but not all) government use of evidence seized in violation of the Fourth Amendment. Part II focuses on the false-friend cases, elaborating the Court's reasoning and showing why, although the most famous cases involve varying kinds of activity from electronic recording to eavesdropping to simple reporting of the false friend's observation, the Court's method has united these cases under a single analytical rubric. Part …

Federal Constitutional Restraints On Tax Competition Among The American States, Walter Hellerstein

Scholarly Works

This article examines the judicially developed rules limiting interstate tax competition in the United States and the constitutional framework out of which they arise.

The Constitutional Significance Of Forgotten Presedents, Michael J. Gerhardt

Faculty Publications

No abstract provided.

Alternative Career Resolution Ii: Changing The Tenure Of Supreme Court Justices, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen

Faculty Scholarship

This Note argues that Title VII doctrine both illuminates internal contradictions of Grutter v. Bollinger and provides a framework for reading the opinion. Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion's narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion's conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The …

Intelligent Design And The First Amendment: A Response, Jay D. Wexler

Faculty Scholarship

In September 2005, a federal district judge in Pennsylvania began presiding over the nation's first trial regarding the constitutionality of introducing the concept of "intelligent design" (ID), a purportedly scientific alternative to the theory of evolution, into the public schools. My previous work has argued that teaching ID in the public schools would raise serious constitutional problems. In a series of writings, including a full length book and several articles, Baylor University professor Francis Beckwith has argued that public schools may constitutionally teach ID. In doing so, Beckwith has critiqued a number of arguments I have previously advanced in my …

Palazzolo, The Public Trust, And The Property Owner’S Reasonable Expectations: Takings And The South Carolina Marsh Island Bridge Debate, Erin Ryan

Erin Ryan

South Carolina recently promulgated new guidelines regulating the State’s consideration of requests by private marsh island owners to build bridges for vehicular access through publicly owned marsh and tidelands. Many thousands of these islands hug the South Carolina coast, but they are surrounded by tidelands subject to South Carolina’s formidable public trust doctrine, which obligates the State to manage submerged lands and waterways for the benefit of the public. This piece evaluates the relationship between the public trust doctrine and the takings subtext to the debate over the new guidelines – a relationship that has become particularly interesting in the …

Changing Expectations Of Privacy And The Fourth Amendment, Robert Power

Robert C Power

Who's So Afraid Of The Eleventh Amendment, John C. Yoo, Jesse Choper

John C Yoo

This Article argues that critics have exaggerated the impact and importance of the Eleventh Amendment cases. This is not to deny that revived judicial security for states' rights has become the signature issue of the Rehnquist Court. We examine whether the subject deserves the enormous importance that many, including a number of commentators and several Justices, have given it. We conclude that it does not. A series of doctrines, both internal and external to the Eleventh Amendment, allow the federal government to achieve its policy objectives. Preventing private plaintiffs from suing states for retrospective money damages poses at most a …

Unburdening The Constitution: What Has The Indian Constitution Got To Do With Private Universities, Modernity And Nation States?, Shubhankar Dam

Shubhankar Dam

This article critically analyses the decision of the Indian Supreme Court in Yashpal and another v. State of Chhattisgarh and others holding the establishment of private universities as unconstitutional. Swayed by the overwhelmingly irresponsible character of the respondent universities, the Supreme Court innovated constitutional arguments to uphold the claims of the petitioners. While intuitively correct in the context of the immediate facts, the judgment, when analysed in the abstract, reveals the self-inflicted harm it has the potential to cause. The judgment is technologically regressive: it fails to account for the emerging trends in education, especially those related to the use …

A Cultural Turn: Reflections On Recent Historical And Legal Writing On The Second Amendment

William G. Merkel

Rational War And Constitutional Design, John C. Yoo, Jide Nzelibe

John C Yoo

Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a purely functional or comparative institutional analysis of the relationship between Congress and the President on war powers. More specifically, we focus on the following question: Which war powers system would best enhance the effectiveness of the United States in making decisions on war and peace? Our answer draws on one of the few facts considered to be close …

Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald J. Kochan

Donald J. Kochan

The Uses Of History In The Supreme Court's Takings Clause Jurisprudence, Jonathan R. Lahn

Jonathan R Lahn

No abstract provided.