Law Commons^™

'"You Have Been In Afghanistan": A Discourse On The Van Alstyne Method, Garrett Epps

All Faculty Scholarship

This essay pays tribute to William Van Alstyne, one of our foremost constitutional scholars, by applying the methods of textual interpretation he laid out in a classic essay, "Interpreting This Constitution: On the Unhelpful Contribution of Special Theories of Judicial Review." I make use of the graphical methods Van Alstyne has applied to the general study of the First Amendment to examine the Supreme Court's recent decisions in the context of the Free Exercise Clause, in particular the landmark case of "Employment Division v. Smith". The application of Van Alstyne's use of the burden of proof as an interpretive tool …

Presidential Elections - The Right To Vote And Access To The Ballot, John B. Anderson, Mitchell W. Berger, Grace E. Robson

Faculty Scholarship

The following article is a tripartite effort by Mitchell Berger and Grace E. Robson, members of the Florida Bar; John B. Anderson, a member of the Nova Southeastern University's Shepard Broad Law Center faculty; and a team of two of the students at that law school, Jason Blank and Tom Brogan, to examine the subject of ballot access for non-major party candidates in presidential elections in the wake of the recent decision of the Supreme Court of Florida in Reform Party of Florida v. Black.' Mr. Berger has furnished a critical analysis of that decision. Our team of students has …

Taking History Seriously: Municipal Liability Under 42 U.S.C. §1983 And The Debate Over Respondeat Superior, David J. Achtenberg

Faculty Works

The Monell doctrine - the most important obstacle to municipal § 1983 liability for constitutional wrongs - hangs by a thread. Four Justices of the United States Supreme Court have called for reexamination of Monell's conclusion that cities are exempt from respondeat superior liability for their employees' unconstitutional conduct. Plaintiffs' civil rights lawyers wait only for the right case and a single change in the Court's personnel before urging the Court to overturn Monell.

This Article is intended to provide those lawyers - and those who will oppose them - with a comprehensive, accurate examination of the relevant historical background, …

The Disability Integration Presumption: Thirty Years Later, Ruth Colker

The Ohio State University Moritz College of Law Working Paper Series

The fiftieth anniversary of the Brown v. Board of Education decision has spurred a lively debate about the merits of “integration.” This article brings that debate to a new context – the integration presumption under the Individuals with Disabilities Education Act (“IDEA”). The IDEA has contained an “integration presumption” for more than thirty years under which school districts should presumptively educate disabled children with children who are not disabled in a fully inclusive educational environment. This article traces the history of this presumption and argues that it was borrowed from the racial civil rights movement without any empirical justification. In …

Overcoming Poletown: County Of Wayne V. Hathcock, Economic Development Takings, And The Future Of Public Use, Ilya Somin

George Mason University School of Law Working Papers Series

County of Wayne v. Hathcock is an important step forward in public use takings law. The Michigan Supreme Court was right to overturn its notorious 1981 Poletown decision and forbid condemnations that transfer property to private parties solely on the grounds that the new owners will contribute to “economic development.” Poletown was the best known and most widely criticized decision justifying a nearly unlimited condemnation power.

As the Poletown case dramatically demonstrates, the economic development rationale is a virtual blank check for eminent domain abuse for the benefit of private parties. Poletown upheld a condemnation as a result of which …

A Brief History Of The Fifth Amendment Guarantee Against Double Jeopardy, David S. Rudstein

All Faculty Scholarship

No abstract provided.

Belton Redux: Re-Evaluating Belton's Per Se Rule Governing The Search Of An Automobile Incident To An Arrest, David S. Rudstein

All Faculty Scholarship

No abstract provided.

The Surprisingly Strong Case For Tailoring Constitutional Principles, Mark D. Rosen

All Faculty Scholarship

Many constitutional principles apply to more than one level of government. This is true not only of Bill of Rights guarantees that have been incorporated against the States, but of many constitutional principles whose source lies outside of the Bill of Rights. The conventional wisdom is that such multi-level constitutional principles apply identically to all levels of government. The Article's thesis is that this One-Size-Fits-All approach is problematic because the different levels of government - federal, state, and local - sometimes are sufficiently different that a given constitutional principle may apply differently to each level. This Article critically examines an …

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

All Faculty Scholarship

Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

Judicial Review Without Judicial Supremacy: Taking The Constitution Seriously Outside The Courts, James E. Fleming

Faculty Scholarship

Larry Sager and Larry Kramer have written important books that, in quite different ways, call for taking the Constitution seriously outside the courts. Sager's Justice in Plainclothes' and Kramer's The People Themselves2 nonetheless join issue in significant ways, and therefore it is illuminating to analyze them as a pair.

To get a handle on the differences between the two Larrys' books, I have concocted the following fanciful hypothetical. Imagine a law school with a faculty that includes Ronald Dworkin: court-centered constitutional theorist extraordinaire and proponent of a liberal moral reading of the American Constitution.3 Further imagine that the faculty includes …

Court Reviews: The Takings Doctrine And Exactions, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Exactions occur when applications to develop parcels of land require governmental permission, and that permission is conditioned upon dedicating part of the land to public use. Exactions have long been challenged as regulatory takings, and both federal and state courts look at these types of regulations with a heightened level of scrutiny due to the nature of exactions to remove a crucial element from the bundle of property rights associated with ownership of real property: the right to exclude. This column discusses a recent example of exactions jurisprudence applied in New York and goes on to compare that decision in …

Does Obscenity Cause Moral Harm?, Andrew Koppelman

Public Law and Legal Theory Papers

This essay will reconsider the fundamentals of obscenity law: the harm that the law addresses and the means by which the law tries to prevent that harm. Strangely, even though an enormous amount of scholarship examines this doctrine, these fundamentals have not been adequately addressed. The harm that the doctrine seeks to prevent is not offense to unwilling viewers. It is not incitement to violence against women. It is not promotion of sexism. Rather, it is moral harm - a concept that modern scholarship finds hard to grasp. Liberals have not even understood the concept of moral harm, and so …

Interstate Recognition Of Same-Sex Marriages And Civil Unions: A Handbook For Judges, Andrew Koppelman

Public Law and Legal Theory Papers

Same-sex marriage is here. Massachusetts now recognizes such marriages, and increasing numbers of same-sex couples have married. Other states have virtually the same status: Vermont recognizes "civil unions," and California recognizes "domestic partnerships," that have virtually all the rights of marriage. Are these statuses exportable? Will same-sex unions be recognized in other states? The answer should not be mysterious. There is a well developed body of law on the question of whether and when to recognize extraterritorial marriages that are contrary to the forum's public policy. Assuming that courts decide to follow that law, the answer is, it depends. This …

The Pledge As Sacred Political Ritual, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

The Section 5 Power And The Rational Basis Standard Of Equal Protection, William D. Araiza

Faculty Scholarship

No abstract provided.

Whose Constitution Is It? Why Federalism And Constitutional Positivism Don't Mix, James A. Gardner

Journal Articles

It is frequently argued that state constitutions ought to be interpreted using a methodology of constitutional positivism, a familiar and commonplace theory of interpretational legitimacy that requires courts to treat a constitution as an authoritative expression of the will of the people who made it. I argue, contrary to this view, that orthodox constitutional positivism is not a viable interpretational methodology for subnational constitutions in a federal system. Although constitutional positivism makes sense for national constitutions, which furnish the paradigm case, subnational constitutions pose important problems for the political theory upon which constitutional positivism relies. According to that theory, the …

Foreword: The New Frontier Of State Constitutional Law, James A. Gardner, Jim Rossi

Journal Articles

In the past decade, a new frontier of constitutional discourse has begun to emerge, adding a fresh perspective to state constitutional law. Instead of treating states as jurisdictional islands in a sea under reign of the federal government, this new approach sees states as co-equals among themselves and between them and the federal government in a collective enterprise of democratic self-governance. This Symposium, organized around the theme of Dual Enforcement of Constitutional Norms, provides the occasion for leading scholars on state constitutional law to take a fresh look at their subject by adopting a vantage point outside of the individualized …

War, Crisis, And The Constitution, Sotirios A. Barber, James E. Fleming

Faculty Scholarship

Most recent discussion of the United States Constitution and war--both the war on terrorism and the war in Iraq--has been dominated by two diametrically opposed views: the alarmism of those who see many current policies as portending gross restrictions on American civil liberties, and the complacency of those who see these same policies as entirely reasonable accommodations to the new realities of national security. Whatever their contributions to the public discussion and policy-making processes, these voices contribute little to an understanding of the real constitutional issues raised by war. Providing the historical and legal context needed to assess competing claims, …

The Lost Jurisprudence Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

It is widely assumed that the Ninth Amendment languished in constitutional obscurity until it was resurrected in Griswold v. Connecticut by Justice Arthur Goldberg. In fact, the Ninth Amendment played a significant role in some of the most important constitutional disputes in our nation's history, including the scope of exclusive versus concurrent federal power, the authority of the federal government to regulate slavery, the constitutionality of the New Deal, and the legitimacy and scope of incorporation of the Bill of Rights into the Fourteenth Amendment. The second of two articles addressing the Lost History of the Ninth Amendment, The Lost …

2003-2004 Supreme Court Term: Another Losing Season For The First Amendment, Joel Gora

Faculty Scholarship

No abstract provided.

Cheers, Profanity, And Free Speech, Howard M. Wasserman

Faculty Publications

No abstract provided.

A Troubling Equation In Contracts For Government Funded Scientific Research: "Sensitive But Unclassified" = Secret But Unconstitutional, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

No abstract provided.

Is There A "Religious Question" Doctrine?: Judicial Authority To Examine Religious Practices And Beliefs, Jared Goldstein

Law Faculty Scholarship

No abstract provided.

The Demise Of The First Amendment As A Guarantor Of Religious Freedom, Ivan E. Bodensteiner

Law Faculty Publications

No abstract provided.

Superimposing Title Vii's Adverse Action Requirement On First Amendment Retaliation Claims: A Chilling Prospect For Government Employee Speech, Rosalie Berger Levinson

Law Faculty Publications

No abstract provided.

La Vida Considerada Como Cosa: Un Error Norteamericano Fundamental, Richard Stith

Law Faculty Publications

El autor explica un error fundamental que puede subyacer a la aprobación, por el Tribunal Supremo norteamericano en el año 2000, del aborto durante el parto. Este error consiste en concebir la vida física como una mera cosa, como algo que puede existir sin que haya un ser humano que la viva. En cuanto al aborto, el error radica en la confusión entre desarrollo y construcción (del feto), confusión debida en parte a ciertas creencias medievales ya superadas por la ciencia moderna. En la segunda mitad del artículo, el autor sostiene que un error semejante puede proporcionar fácilmente un argumento …

The Powers That Be: A Reexamination Of The Federal Courts' Rulemaking And Adjudicatory Powers In The Context Of A Clash Of A Congressional Statute And A Supreme Court Rule, Bernadette Bollas Genetin

Con Law Center Articles and Publications

No abstract provided.

Settling The West: The Annexation Of Texas, The Louisiana Purchase, And Bush V. Gore, Mark A. Graber

Faculty Scholarship

No abstract provided.

Toward Flawlessness, Peter E. Quint

Faculty Scholarship

No abstract provided.

Are Filipina/Os Asians Or Latina/Os?: Reclaiming The Anti-Subordination Objective Of Equal Protection After Grutter And Gratz, Victor C. Romero

Journal Articles

In this piece, I explore two avenues of political action - self-identification for affirmative action purposes and longer-term solutions to educational inequity - in an attempt to develop a coherent and effective post-Grutter and Gratz strategy for promoting equal educational opportunities consistent with the demands of equal protection. I use the experiences of Filipina/o-Americans as a vehicle for exploring these issues. I hope to show that diversity as the underlying goal of affirmative action fails to capture the core of modern equal protection jurisprudence implicit in Brown v. Board of Education and Loving v. Virginia: that treating all …