Law Commons^™

The New Maternity, Courtney Megan Cahill

Scholarly Publications

Constitutional law has long assumed that mothers andfathers are fundamentally different. Maternity, that law posits, is certain, obvious, and monolithic - consolidated in an easily identifiable person who is at once a biological, social, and legal parent. Paternity, in contrast, is construed as uncertain, nonobvious, relative, and often unclear. Over time, constitutional law has grown more insistent about the obviousness of motherhood. It also has cemented its idea of maternity into a fundamental principle of sex equality law that applies in settings - like transgender rights - that have nothing to do with certain mothers and uncertain fathers.

Constitutional law's …

The Devil In The Detail: Mitigating The Constitutional & Rule Of Law Risks Associated With The Use Of Artificial Intelligence In The Legal Domain, Catrina Denvir, Tristan Fletcher, Jonathan Hay, Pascoe Pleasence

Florida State University Law Review

No abstract provided.

The Takings Keepings Clause: An Analysis Of Framing Effects From Labelling Constitutional Rights, Donald J. Kochan

Florida State University Law Review

Did you know that the "Takings Clause" was not called the "Takings Clause" by any court before 1955? That was the first time that any court of any jurisdiction referred to the provisions regarding takings of private property in either the federal or state constitutions under the label "Takings Clause." Did you know that justices of the U.S. Supreme Court did not use the moniker "Takings Clause" in any opinion before 1978? Given this history, the phrase "Takings Clause," whether an apt descriptor or not, certainly cannot be justified as the dominant way to refer to these provisions by contemporaneous …

Prophylactic Redistricting? Congress's Section 5 Power And The New Equal Protection Right To Vote, Michael T. Morley

Scholarly Publications

No abstract provided.

The Disparate Impact Canon, Michael T. Morley

Scholarly Publications

No abstract provided.

The New Elections Clause, Michael T. Morley

Scholarly Publications

No abstract provided.

Contingent Constitutionality, Legislative Facts, And Campaign Finance Law, Michael T. Morley

Scholarly Publications

Many of the Supreme Court's important holdings concerning campaign finance law are not pure matters of constitutional interpretation. Rather, they are "contingent" constitution- al determinations: the Court's conclusions rest in substantial part on legislative facts about the world that the Court finds, intuits, or assumes to be true. While earlier commentators have recognized the need to improve legislative factfinding by the Supreme Court, other aspects of its treatment of legislative facts-particularly in the realm of campaign finance- require reform as well. Stare decisis purportedly insulates the Court's purely legal holdings and interpretations from future challenge. Factually contingent constitutional rulings should, …

Reverse Nullification And Executive Discretion, Michael T. Morley

Scholarly Publications

The President has broad discretion to refrain from enforcing many civil and criminal laws, either in general or under certain circumstances. The Supreme Court has not only affirmed the constitutionality of such under-enforcement, but extolled its virtues. Most recently, in Arizona v. United States, it deployed the judicially created doctrines of obstacle and field preemption to invalidate state restrictions on illegal immigrants that mirrored federal law, in large part to ensure that states do not undermine the effects of the President’s decision to refrain from fully enforcing federal immigration provisions.

Such a broad application of obstacle and field preemption is …

The Intratextual Independent "Legislature" And The Elections Clause, Michael T. Morley

Scholarly Publications

Many states have delegated substantial authority to regulate federal elections to entities other than their institutional legislatures, such as independent redistricting commissions empowered to determine the boundaries of congressional districts. Article I’s Elections Clause and Article II’s Presidential Electors Clause, however, confer authority to regulate federal elections specifically upon State “legislatures,” rather than granting it to States as a whole. An intratextual analysis of the Constitution reveals that the term “legislature” is best understood as referring solely to the entity within each state comprised of representatives that has the general authority to pass laws. Thus, state constitutional provisions or laws …

Public Law At The Cathedral: Enjoining The Government, Michael T. Morley

Scholarly Publications

Conventional wisdom provides that injunctive relief in public law cases is generally unnecessary, because a declaratory judgment and the threat of damages are enough to induce the government to comply with a court’s ruling (except, perhaps, in the institutional reform context). Consistent with this prevailing understanding, most scholars to apply Calabresi and Melamed’s Cathedral framework to public law have concluded that nearly all constitutional rights are protected by property rules, regardless of whether a rightholder actually is protected by an injunction, or instead merely has a substantial likelihood of obtaining one if she goes to court.

This Article challenges this …

Rethinking The Right To Vote Under State Constitutions, Michael T. Morley

Scholarly Publications

No abstract provided.

The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley

Scholarly Publications

No abstract provided.

The Constitutional Development Of Religious Freedom In Spain: An Historical Analysis, Daniel B. Montserrat

Florida State University Journal of Transnational Law & Policy

Religious freedom has always constituted a problem in Spain. It can be said that over the centuries, there has only existed intolerance and even on several occasions, persecution. Clearly, the times in which respect and peaceful coexistence occurred in Spain among the three principal religions were limited and fleeting. Unfortunately, even Spanish constitutional history is replete with examples of religious intolerance. From the Cddiz Constitution of 1808, liberal in its politics, but tremendously repressive with respect to religion up until the present day, there have been scarcely twentyfive years of "religious freedom." Recalling the period prior to the first constitution, …

Department Of Health And Rehabilitative Services V. Herzog, 317 So. 2d 865 (Fla. 2d Dist. Ct. App. 1975), M. Catherine Lannon

Florida State University Law Review

Constitutional Law- ADOPTION- FATHER OF AN ILLEGITIMATE CHILD IS NOT NECESSARILY ENTITLED TO NOTICE IN ADOPTION PROCEEDINGS.

Nelson V. State, 319 So. 2d 154 (Fla. 2d Dist. Ct. App. 1975), Randall O. Reder

Florida State University Law Review

Constitutional Law- SEARCH AND SEIZURE- SCHOOL OFFICIALS' AUTHORITY TO SEARCH STUDENTS IS AUGMENTED BY THE In Loco Parentis DOCTRINE.

State V. Ecker, 311 So. 2d 104 (Fla. 1975), Deborah Miller

Florida State University Law Review

Constitutional Law- VAGRANCY- FLORIDA'S LOITERING STATUTE UPHELD AS CONSTITUTIONAL WHEN CONSTRUED TO PROHIBIT LOITERING WHICH THREATENS PUBLIC SAFETY OR A BREACH OF THE PEACE.

Brown V. Liberty Loan Corp., 392 F. Supp. 1023 (M.D. Fla. 1974), J. Elizabeth Middlebrooks

Florida State University Law Review

Constitutional Law- DUE PROCESS- POSTJUDGMENT WAGE GARNISHMENT PROCEDURE THAT GIVES DEBTOR NO NOTICE OR OPPORTUNITY TO ASSERT STATUTORY EXEMPTION PRIOR TO GARNISHMENT IS UNCONSTITUTIONAL.

Weinberger V. Wiesenfeld, 95 S. Ct. 1225 (1975), Barbara Cozad Biddle

Florida State University Law Review

Constitutional Law- EQUAL PROTECTION- DENYING SOCIAL SECURITY "MOTHER'S INSURANCE BENEFITS" TO FATHERS VIOLATES EQUAL PROTECTION COMPONENT OF FIFTH AMENDMENT DUE PROCESS CLAUSE.

Goss V. Lopez, 95 S. Ct. 729 (1975), Stephen J. Kubik

Florida State University Law Review

Constitutional Law- FOURTEENTH AMENDMENT- STUDENTS FACING SUSPENSION HAVE PROPERTY AND LIBERTY INTERESTS THAT QUALIFY FOR DUE PROCESS PROTECTION.

Gagnon V. Scarpelli, 411 U.S. 778 (1973), Florida State University Law Review

Florida State University Law Review

Constitutional Law-DUE PROCESS-REVOCATION OF PROBATION WITHOUT PRIOR HEARING VIOLATES PROBATIONER'S FOURTEENTH AMENDMENT RIGHT TO DUE PROCESS; NEED FOR APPOINTED COUNSEL AT REVOCATION HEARING TO BE DETERMINED ON CASE-BY-CASE BASIS.