Law Commons^™

The Majoritarian Difficulty: Affirmative Action, Sodomy, And Supreme Court Politics, Darren Lenard Hutchinson

UF Law Faculty Publications

Contemporary debates over recent Court decisions provide a rich context to weigh claims of judicial countermajoritarianism against the work of constitutional theorists, critical legal scholars, and political scientists who view the Court as a majoritarian body. In particular, the Court's decisions in Lawrence v. Texas, Gratz v. Bollinger, and Grutter v. Bollinger have reignited arguments concerning the propriety of judicial review. Prominent judicial commentators have described the decisions as important, and unexpected, civil rights victories from a markedly conservative Court. Liberal and conservative scholars and activists seem to agree with this description: mainline civil rights organizations and liberal scholars view …

A Constitutionalist Perspective, Elizabeth Dale

UF Law Faculty Publications

Intended as a sustained critique of modern communitarian thought written from a constitutionalist perspective, Beau Breslin'sCommunitarian Constitution is a handy primer on modern communitarian thought and a provoking consideration of the impact of communitarian thinking on contemporary politics.

The foundation for Breslin's fundamental argument--that constitutionalism provides a viable alternative to communitarianism, while liberalism cannot--is not laid as well as one might wish. There are other points where his logic ought to be more rigorously developed, most notably in his assessment of the role and power of the rule of law in a constitutionalist system. He rests his reliance on …

The Logic And Experience Of Law: Lawrence V. Texas And The Politics Of Privacy, Danaya C. Wright

UF Law Faculty Publications

The U.S. Supreme Court's June 2003 decision in Lawrence v. Texas may prove to be one of the most important civil rights cases of the twenty-first century. It may do for gay and lesbian people what Brown v. Board of Education did for African-Americans and Roe v. Wade did for women. While I certainly hope so, my enthusiasm is tempered by the fact that discrimination on the basis of race or gender has not disappeared. Will Lawrence signal meaningful change, or will its revolutionary possibilities be stifled by endless cycles of excuse and redefinition? The case is important, but I …

Is Yale Kamisar As Good As Joe Namath: A Look Back At Kamisar's Prediction Of Miranda V. Arizona, Tracey Maclin

UF Law Faculty Publications

No abstract provided.

The Environmental Commerce Clause, Christine A. Klein

UF Law Faculty Publications

This Article studies every commerce clause decision of the modem Supreme Court that involves the scope of governmental authority to regulate the use of natural resources. These decisions comprise what I will call the environmental commerce clause—the Court's interpretation of the limits mandated by the commerce clause upon federal and state legislation protecting natural resources. Overall, the Court has been limiting the scope of the affirmative commerce clause while simultaneously expanding the reach of the dormant commerce clause. As a result, both federal and state efforts to protect the natural environment have been rendered constitutionally suspect.

This study supports two …

Rehnquist's Vietnam: Constitutional Separatism And The Stealth Advance Of Martial Law, Diane H. Mazur

UF Law Faculty Publications

This Article argues that judicial deference to the military, at least as the principle is understood in contemporary decisions of the Court, is surprisingly recent and not at all constitutionally established. In fact, this deference departs from constitutional text and from a line of Supreme Court precedent concerning civilian-military relations extending back before the Civil War. Broad judicial deference to military discretion is only a creation of the post-Vietnam, all-volunteer military and, more specifically, only a creation of one single Justice of the Supreme Court, William H. Rehnquist.

In Greer v. Spock, First Amendment values were displaced narrowly in the …

Diversity: The Red Herring Of Equal Protection, Sharon E. Rush

UF Law Faculty Publications

Couching the constitutional inquiry in cases like Bakke and VMI in the context of integration also puts in perspective the diversity justification. Affirmative action policies are constitutional because they integrate state programs. Integration on the basis of race and sex also diversifies state programs. In contrast, attempts to justify sex-segregation in state programs by arguing the policy promotes diversity is irrelevant to an equal protection analysis. Voluntarily created all-female schools should be constitutional because they promote the equal citizenship of women without damaging the equal citizenship stature of men. This is true for voluntarily race-segregated programs for minorities; as well. …

Virtual Equality As Constitutional Reality: An Introduction, Berta E. Hernández-Truyol

UF Law Faculty Publications

Equality is, to be sure, an elusive concept. More often than not, we find it much easier to describe what is unequal (we know it when we see it) than affirmatively to explain equality. This definitional dilemma rises to new heights when courts, in exercising their interpretive legal functions, have to provide all persons the equal protection of the laws."

Over the course of American history and jurisprudence, the Supreme Court itself has a checkered past when it comes to judicial application of rights to equality. In the beginning, there was slavery - the quintessence of unequality - and the …

Contemplating The Successive Prosecution Phenomenon In The Federal System, Elizabeth T. Lear

UF Law Faculty Publications

Constitutional scholars have long debated the relative merits of a conduct-based compulsory joinder rule. The dialogue has centered on the meaning of the “same offence” language of the Double Jeopardy Clause, concentrating specifically on whether it includes the factual circumstances giving rise to criminal liability or applies only to the statutory offenses charged. However, the Supreme Court, in United States v. Dixon, abandoned as “unworkable” a limited conduct-based approach it had fashioned just three years before in Grady v. Corbin.

This Article does not assess the frequency with which federal authorities prosecute joinable offenses separately. While such information ultimately is …

Double Jeopardy, The Federal Sentencing Guidelines, And The Subsequent-Prosecution Dilemma, Elizabeth T. Lear

UF Law Faculty Publications

The choice to embrace a real-offense regime probably constitutes the single most controversial decision made by the Federal Sentencing Commission in drafting the Federal Sentencing Guidelines ("Guidelines"). Real-offense sentencing bases punishment on a defendant's actual conduct as opposed to the offense of conviction. The Guidelines sweep a variety of factors into the sentencing inquiry, including criminal offenses for which no conviction has been obtained. Under the Guidelines, therefore, prosecutorial charging decisions and even verdicts of acquittal after jury trial may have little impact at sentencing.

Long before the adoption of the Guidelines, courts bent on rationalizing the real-offense regime devised …

Seeing The Constitution From The Backseat Of A Police Squad Car, Tracey Maclin

UF Law Faculty Publications

A Book Review of Tempered Zeal, by H. Richard Uviller.