Law Commons^™

The Establishment Clause And The Free Exercise Clause Of The Washington Constitution—A Proposal To The Supreme Court, Frank J. Conklin, James M. Vaché

Seattle University Law Review

This Article traces the independent development in the case law interpreting the Washington Constitution and in the drafting of the document itself. It is the position of the authors that the strict approach and consequent rigorous, independent analysis by the Washington court is not a necessary or appropriate method of deciding church-state issues, at least in many contexts. When examining establishment clause issues under the state constitution, the Washington State Supreme Court should therefore modify its previous position and adopt a more common-sense approach in lieu of the doctrinaire rigidity that has characterized prior opinions.

Constitutional Law: Activating The Middle Tier After Plyler V. Doe: Cleburne Living Center V. City Of Cleburne, Philip D. Hart Jr.

Oklahoma Law Review

No abstract provided.

Constitutional Law: Roemhild V. State And State V. Popanz: Their Effect On The Constitutionality Of Oklahoma's Compulsory Education Statute, Robert B. Caput

Oklahoma Law Review

No abstract provided.

The Pathological Perspective And The First Amendment, Vincent A. Blasi

Faculty Scholarship

Constitutions are designed to control, or at least influence, future events – political events, adjudicative events, to some extent even interactions between private parties. Yet the future is unknowable, largely unpredictable, and inevitably variable. At any moment there exists a short-run future, a long-run future, and a future in between. The future is virtually certain to contain some progress, some regression, some stability, some volatility. How is a constitution supposed to operate upon this vast panoply?

That is a question that ought to loom large in the deliberations of persons who propose and ratify new constitutions and new constitutional amendments. …

The Development Of The Law Of Seditious Libel And The Control Of The Press, Philip A. Hamburger

Faculty Scholarship

This article presents a new account of the development of the law of seditious libel from the late sixteenth century to the early eighteenth. It also outlines a new version of the relationship between the government and the press during that period. The article argues that it was the gradual erosion, during the late sixteenth and seventeenth centuries, of the legal foundations of the government's policies toward the press that eventually made necessary a new policy based on the law of libel. In the midsixteenth century, the Crown possessed a wide variety of means for dealing with the printed press, …

Constitutional Fact Review, Henry Paul Monaghan

Faculty Scholarship

Bose Corp. v. Consumers Union of United States held that the clearly erroneous standard of Federal Rule of Civil Procedure 52(a) does not prescribe the scope of appellate review of a finding of actual malice in defamation cases governed by New York Times Co. v. Sullivan. Rather, as a matter of "federal constitutional law," appellate courts "must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity." Thus, in addition to the familiar judicial duty to "say what the law is," the first amendment imposes a special duty with respect to law application: both …

From Sovereignty To Process: The Jurisprudence Of Federalism After Garcia, Andrzej Rapaczynski

Faculty Scholarship

On February 19, 1985, the Supreme Court, in Garcia v. San Antonio Metropolitan Transit Authority, overruled its 1976 decision in National League of Cities v. Usery. Although the continued vitality of National League of Cities had been in question in recent years, the Court's abrupt repudiation of the very principle announced in that case is an event of considerable significance, beyond showing, one more time, that the rule of stare decisis has a limited application in the Court's modern constitutional adjudication. Garcia's importance lies, above all, in revealing the absence of anything approaching a well elaborated theory of federalism that …

Distrust Of Democracy, Richard Briffault

Faculty Scholarship

The current rediscovery of state constitutions has had a singular and curious feature: it has been focused largely on state constitutional provisions that are analogous, if not identical, to provisions of the United States Constitution. Scholars and jurists have devoted their attention to state protections of speech, state equal protection clauses, state privileges against self-incrimination, and state proscriptions of cruel and unusual punishments, and have developed interpretations of these texts that diverge from those adopted by the United States Supreme Court in construing comparable federal constitutional provisions. These attempts to play state variations on federal constitutional themes have not been …

State Sovereignty Under The Burger Court -- How The Eleventh Amendment Survived The Death Of The Tenth: Some Broader Implications Of Atascadero State Hospital V. Scanlon, George D. Brown

George D. Brown

No abstract provided.

The Competition Of Technologies In Markets For Ideas: Copyright And Fair Use In Evolutionary Perspective (With Steven Peretz), Richard Adelstein

Richard Adelstein

A theory of intellectual goods as distinct from public or private goods, and the rationale for copyright that flows from it.