Digital Commons Network^™

Equal Sentences For Unequal Participation: Should The Eighth Amendment Allow All Juvenile Murder Accomplices To Receive Life Without Parole?, Brian Gallini

Brian Gallini

The Lecture Notes Of St. George Tucker; A Framing Period View Of The Bill Of Rights, David T. Hardy

David T. Hardy

This article reflects a transcription of the lecture notes of St. George Tucker, relevant to the newly ratified Bill of Rights. Tucker lectured law at the College of William and Mary from 1790 to 1804, and was well informed on the legal events of his day, with a brother in the first Senate and a friend in the First House. Tucker's notes reflect an astonishingly modern, and broad, view of the Bill of Rights' protections. His notes recently came to some prominence, being debated last term by majority and dissent in District of Columbia v. Heller.

Of Persons And Prenatal Humans: Why The Constitution Is Not Silent On Abortion, Lawrence Nelson

Lawrence J Nelson

Many jurists and legal commentators have concluded that the Constitution does not protect a woman’s right to terminate a pregnancy because nothing in the Constitution’s text and no principle or rule derived from its structure, internal logic, or propositions supports striking down restrictive legislation on abortion. In short, Roe v. Wade, Casey v. Planned Parenthood, and their progeny have been wrongly decided because the Constitution has absolutely no bearing on abortion other than to leave it to the legislative branch.

The conclusion that the Constitution is silent on abortion is false because the Constitution, in the text of the Fourteenth …

Conditional Rules In Criminal Procedure: Alice In Wonderland Meets The Constitution., David Rossman

David Rossman

Without recognizing that it has done so, the Supreme Court has created a category of constitutional rules of criminal procedure that are all in a peculiar format, conditional rules. A conditional rule depends on some future event to determine whether one has failed to honor it. In a wide variety of contexts, if a police officer, prosecutor, judge or defense attorney does something that the Constitution regulates, one cannot determine if the constitutional rule has been violated or not until some point in the future.

The Court has used three methods to create these rules. One looks to prejudice, and …

State Courts, State Territory, State Power: Reflections On The Extraterritoriality Principle In Choice Of Law And Legislation, Katherine J. Florey

Katherine J. Florey

An important (if sometimes poorly understood) extraterritoriality principle constrains the reach of the laws state legislatures may constitutionally enact. Indeed, the Supreme Court has at times suggested that this principle serves to invalidate any “application of a state statute to commerce that takes place wholly outside of the State’s borders.” In the choice-of-law context, however, state courts make the decision to apply state law (including state statutory law) to out-of-state activities (including commercial activities) constantly and routinely. Yet because state courts’ choice-of-law decisions are subject only to the very minimal constraints of the Due Process Clause, the application of forum …

The Second Amendment: Scope And Criminological Considerations, Clayton E. Cramer

Clayton E Cramer

The recent decision D.C. v. Heller (2008) has opened up the question of what the Second Amendment protects. What “arms” are protected? What classes of persons may be properly prohibited from being armed?

The Wages Of Originalist Sin: District Of Columbia V. Heller, Jeffrey M. Shaman

Jeffrey M. Shaman

This essay analyzes and critiques the Supreme Court’s recent decision in District of Columbia v. Heller, which ruled that that the Second Amendment protects an individual right to possess firearms unconnected with service in a militia. The focus of the essay is on Justice Scalia’s majority opinion in Heller, which adheres strictly to an extreme view of originalism holding that the Constitution should be interpreted by ascertaining its original meaning at the time it was adopted. Justice Scalia believes that the Constitution has a static meaning, and that changes in the world around us are of no relevance to constitutional …

False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber

Mark Graber

Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices “when they have tried to impose intensely contested visions of the Constitution on a divided nation.” This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in …

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Mark Graber

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …

The Wages Of Originalist Sin: District Of Columbia V. Heller, Jeffrey M. Shaman

Jeffrey M. Shaman

This article analyzes and critiques the Supreme Court’s recent decision in District of Columbia v. Heller, which ruled that that the Second Amendment protects an individual right to possess firearms unconnected with service in a militia. The focus of the article is on Justice Scalia’s majority opinion in Heller, which adheres strictly to an extreme view of originalism holding that the Constitution should be interpreted by ascertaining its original meaning at the time it was adopted. Justice Scalia believes that the Constitution has a static meaning, and that changes in the world around us are of no relevance to constitutional …

Ensuring A Right Of Access To The Courts For Bias Crime Victims: A Section 5 Defense Of The Matthew Shepard Act, Jordan Woods

Jordan Blair Woods

“The Longest Journey, With A First Step”: Bringing Coherence To Sovereignty And Jurisdictional Issues In Global Employee Benefits Law, Paul Secunda

Paul M. Secunda

One of the most neglected areas of employee benefits law in the United States today is the extraterritorial application of ERISA to U.S. employees in other countries. Additionally, the courts and legislature have not spent the necessary time to discuss ERISA coverage issues for foreign employees, both legal and illegal and both working for foreign government and non-government employers, in the United States. These are increasingly crucial areas of U.S. employee benefits law as the globalization of the world's workplaces continues apace.

After surveying the tangled web of ERISA law in this context, the article proposes two statutory fixes and …

Free Speech And Human Dignity, Steven J. Heyman

Steven J. Heyman

No abstract provided.

Digitus Impudicus: The Middle Finger And The Law, Ira P. Robbins

Ira P. Robbins

"Necessity Hath No Law": Executive Power And The Posse Comitatus Act, Candidus Dougherty

Candidus Dougherty

In this article, I comment on the debate over whether the Posse Comitatus Act, which criminalizes the use of the military for domestic law enforcement, should be tightened to restrict Executive action. In Part I, I catalog the historical context in which the Posse Comitatus Act was passed and describe the military events that are most commonly used to support the case for sharply divided civilian and military authorities. In Part II, I discuss the true purpose and intent of the Posse Comitatus Act: to prohibit civilian marshals from calling forth active duty military to enforce domestic law. I also …

Holocaust Denial And Governmentally Declared "Truth": French And American Perspectives, Russell L. Weaver

Russell L. Weaver

Brandenburg In A Time Of Terror, Thomas Healy

Thomas Healy

No abstract provided.

Brandenburg In A Time Of Terror, Thomas Healy

Thomas Healy

No abstract provided.

Originalism & Early Civil Search Statutes: Searches & The Misunderstood History Of Suspicion & Probable Cause, Fabio Arcila

Fabio Arcila Jr.

Originalist analyses of the Framers’ views about governmental search power have devoted insufficient attention to the civil search statutes they promulgated. What attention has been paid, primarily as part of what I term the “conventional account,” has it that the Framers were divided about how accessible search remedies should be. This article explains why this conventional account is mostly wrong, and explores the lessons to be learned from the statutory choices the Framers made with regard to search and seizure law.

In enacting civil search statutes, the Framers chose to depart from common law standards and instead largely followed the …

Of Sovereignty, States, And Standing, Calvin R. Massey

Calvin R Massey

Massachusetts v. EPA, the global warming case, created two tiers of an Article III case or controversy for purposes of ascertaining standing to sue in federal court. The constitutional core of standing requires a litigant to have an actual or immediately threatened injury in fact that is caused by the defendant’s actions and susceptible to judicial redress. In EPA the Court held that when Congress has created a procedural right a state may bring suit, as parens patriae, to vindicate a federal right that implicates the health or well being of the state’s citizens without the quantum of proof of …

Green-Lighting Brown: A Cumulative-Process Conception Of Judicial Impact, Vincent James Strickler

Vincent James Strickler

Disagreement over the meaning and power of Brown v. Board of Education is part of a larger debate about the capacity of the courts to influence social change. A “down with Brown” movement denies that the iconic case changed America. But, an examination of 68 United States Supreme Court cases (particularly the paradigm-shifting case of Green v. County School Board) and 414 Federal District Court cases, from 1944 through 1974, reveals a cumulative-judicial process that correlates well (and better than legislative efforts) with actual desegregation successes. Considering a “Green-lighted” Brown, rather than the historic case in isolation, better reveals the …

Hostile Public Accommodations Laws And The First Amendment, Daniel Koontz

Daniel Koontz

State and municipal Human Rights Commissions have recently begun aggressively interpreting public accommodations laws to punish the speech of proprietors of bars, restaurants, country clubs, and other public accommodations. The theory is that if a proprietor says something to a customer—or even displays artwork, decorations, or signs—that could potentially offend the customer based on race, religion, sex, or ancestry, the proprietor has created a “hostile environment” which denies the customer “full and equal enjoyment” of the public accommodation.

Proprietors can face liability even in the absence of allegations that they refused service to a customer. In one case, a human …

California's Dueling Harmless Error Standards: Approaches To Federal Constitutional Error In Civil Trials And Establishing The Proper Test For Dependency, Meehan Rasch

Meehan Rasch

For forty years, California appellate courts generally have applied one discrete harmless error test for federal constitutional error in criminal cases and another for civil proceedings. In appeals from convictions in California state criminal cases, errors rising to a federal constitutional dimension are governed by the standard of Chapman v. California, which requires that these errors be proven by the state to be harmless beyond any reasonable doubt. The more lenient standard (for the trial court) of People v. Watson, which holds errors of state law and procedure harmless unless there is a reasonable probability that such error prejudiced the …

Final Version: The Case For The Genetic Parent: Stanley, Quilloin, Caban, Lehr, And Michael H. Revisited, Anthony Miller

Anthony Miller

Does a genetic parent have right to exercise the fundamental rights which the United States Constitution affords parents? If a lesbian couple has a child with one woman donating the ova, which is artificially inseminated and implanted in the other woman, is the donor woman a mother under the Constitution? If sometime in the future a heterosexual couple has a child through the process if in vitro fertilization and through the use of an artificial womb, would the woman and man be the child’s mother and father for constitutional purposes? While the United States Supreme Court has recognized that parents …

“Regulating The Political Thicket: Congress, The Courts, And State Reapportionment Commissions", David A. Schultz

David A Schultz

No abstract provided.

Orwell Was An Optimist: The Evolution Of Privacy In The United States And Its De-Evolution For American Employees, Robert Sprague

Robert Sprague

This Article argues that the difficulties associated with understanding and applying rights to privacy in modern America, and its near extinction, particularly for employees, are a direct result of the conceptual approach used to determine whether a legal right to privacy exists. This approach was formally adopted in the latter part of the twentieth century and it makes privacy protection dependent upon any given situation, determined by whether there is a reasonable expectation of privacy for that given situation. This makes the current right to privacy in the United States contextual, fluid, and easily subject to elimination. One of the …

Judicial Independence: A Call For Reform, Terence Lau

Terence Lau

According to retired Justice Sandra Day O’Connor, judicial independence is threatened now more so than any other time throughout history. Attacks on the judiciary have crossed the line from legitimate criticism to partisan harangues that threaten the ability of judges to rule fairly and without bias. This Article begins with a historical look at judicial independence as it has shaped the Supreme Court, including the impeachment of Samuel Chase, Ex ParteMcCardle and the court-packing plan and concludes with a call for reform to the judicial appointment process to permit greater transparency in judicial selection.

Democracy On Trial: Terrorism, Crime, And National Security Policy In A Post 9-11 World, David A. Schultz

David A Schultz

Post 9-11 concerns in the United States, among the European Union (EU) members, and other western democracies regarding international terrorism forced convergence of the traditionally distinct policy areas of domestic criminal justice and national security. This convergence has produced several policy and institutional conflicts that pit individual rights against homeland security, domestic law and institutions against international norms and tribunals, and criminal justice agencies against national security organizations. This Article examines regime responses to international terrorism, principally in the United States, in comparison to the European Union, seeking to describe the consequences of the merger of criminal justice norms with …

The Right To Reproductive Choice Without The Myth Of Fundamentality: A Guide To Aborting Roe V. Wade And All Of Its Bastard Progeny, Nina C. Baccala

Nina C. Baccala

No abstract provided.

Religious Arguments And The United States Supreme Court: A Review Of Amicus Curiae Briefs Filed By Religious Organizations, Andrew S. Mansfield

Andrew S Mansfield

This paper analyzes forty-five amicus curiae briefs filed by religious organizations with the Supreme Court since Brown v. Board of Education, 348 U.S. 886, decided in 1954, through the decision in Ayotte v. Planned Parenthood, 546 U.S. 320, rendered in 2006. The forty-five amicus curiae briefs were filed in nineteen cases and concern issues that are often identified as “moral.” Analysis of the amicus curiae briefs filed with the Supreme Court by religious organizations provides at least three crucial insights. First, the legal arguments presented by religious organizations, as reflected in amicus curiae briefs filed with the Supreme Court, provide …