Law Commons^™

Putting The "Exercise" Back In Free Exercise, Eric J. Segall

Kentucky Law Journal

No abstract provided.

Religious Liberty Versus Rights Of Others, Arnold H. Loewy

Kentucky Law Journal

No abstract provided.

Religious Exemptions, Harm To Others, And The Indeterminacy Of A Common Law Baseline, Elizabeth Sepper

Kentucky Law Journal

No abstract provided.

Religious Accommodations And Third-Party Harms: Constitutional Values And Limits, Kathleen A. Brady

Kentucky Law Journal

No abstract provided.

The Costs Of Conscience, Micah Schwartzman, Nelson Tebbe, Richard Schragger

Kentucky Law Journal

No abstract provided.

Decentralizing Fourth Amendment Search Doctrine, Michael J. Zydney Mannheimer

Kentucky Law Journal

No abstract provided.

Equitable Mootness: Ignorance Is Bliss And Unconstitutional, Robert Miller

Kentucky Law Journal

No abstract provided.

The Constitutionality Of Claiming Jail, Paul E. Salamanca

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Constitutionality Of Claiming Jail, Paul E. Salamanca

Law Faculty Scholarly Articles

Most pari-mutuel horse races in the United States are claiming races.In such races, a track official stipulates a claim price, and any authorized person may buy any horse that runs in that race at that price. This device discourages owners from running overqualified horses, which tends to ensure competitive fields. Say, for example, an official set a price of $50,000 for a race. An owner who ran a $60,000 horse in that race would stand a fair chance of picking up a good part of the purse, but he or she would also run a high risk of losing the …

An Undetectable Constitutional Violation, Jill Wieber Lens

Kentucky Law Journal

In Philip Morris USA v. Williams, the Supreme Court mandated that lower courts implement procedural protections to ensure that the jury, when awarding punitive damages, properly considers evidence of the defendant's harming nonparties. The jury can consider that evidence when determining the level of the defendant's reprehensibility, but punishment for causing that nonparty harm would violate the defendant's constitutional rights. Ten years later, this Article is the first to examine lower courts' attempts to comply with Philip Morris. The Article first seeks to clarify how evidence of nonparty harm can demonstrate reprehensibility, a clarification necessary before courts can even begin …

Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray

Law Faculty Scholarly Articles

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

Another Look At Skelly Oil And Franchise Tax Board, Paul E. Salamanca

Law Faculty Scholarly Articles

In recent years, members of the Supreme Court of the United States have twice cited Skelly Oil Co. v. Phillips Petroleum Co. for the proposition that the federal Declaratory Judgment Act, which Congress enacted in 1934, is “procedural only” and does not enlarge the scope of federal jurisdiction. By this, they probably mean that Skelly allows no case into federal court in the presence of the act that could not find its way there in its absence. But whether this assertion is accurate today, or was accurate in 1950 when Justice Frankfurter wrote Skelly, is not entirely clear. Depending …

An Unconventional Approach To Reviewing The Judicially Unreviewable: Applying The Dormant Commerce Clause To Copyright, Donald P. Harris

Kentucky Law Journal

No abstract provided.

Governmental Acquiescence In Private Party Searches: The State Action Inquiry And Lessons From The Federal Circuits, Eugene L. Shapiro

Kentucky Law Journal

In an area characterized by a significant potential for governmental abuse, judicial examination of whether governmental acquiescence in a specific private party search constitutes state action, consequently subject to Fourth Amendment constraints, has often lacked appropriate focus and depth. An examination of the standards used among the federal circuits reveals prevalent approaches which identify the circumstances bearing upon the matter, but which address them under "multi-factored" totality of the circumstances standards. The result has too often been a lack of specificity in discussing the issues and a failure to provide needed clarity for law enforcement.

This article examines the analyses …

Tinker Tortured: The Scope Of Student Off-Campus Viral Speech Rights In The Federal Circuits, Kevin Nathaniel Troy Fowler

Kentucky Law Journal

No abstract provided.

Judgment Without Notice: The Unconstitutionality Of Constructive Notice Following Citizens United, Carliss N. Chatman

Kentucky Law Journal

Citizens United v. Federal Election Commission positions a corporation as an entity entitled to constitutional rights equal to the rights of natural persons. In many situations, this holding may be the impetus for reform and reconsideration of state restrictions on corporate rights that were problematic before the decision. The operation of corporate statutes on corporations chartered in one state but doing business in another state as a foreign corporation is an area in need of this Citizens United-inspired review. Although most corporations operate as foreign corporations outside of their state of incorporation, neither the constitutional validity of corporate withdrawal …

A Benign Prior Restraint Rule For Public School Classroom Speech, Scott R. Bauries

Law Faculty Scholarly Articles

This Article is a contribution to a symposium on schools and free speech. It advances the claim that the First Amendment doctrines that apply to the classroom should adopt a benign prior restraint rule. In the case of teacher classroom speech, the Garcetti rule should apply where the government’s action in interfering with the speech constitutes a prior restraint—the First Amendment should not reach such interference. In cases where a teacher first speaks and then is later punished for that speech, however, basic notions of due process and the dangers of arbitrary governmental decision making are far more pressing, and …

Eldred & The New Rationality, Brian L. Frye

Law Faculty Scholarly Articles

Historically, the rational basis test has been a constitutional rubber stamp. In Eldred v. Ashcroft and Golan v. Holder, the Supreme Court applied the rational basis test and respectively held that Congress could extend the copyright term of existing works and restore copyright protection of public domain works, despite evidence that Congress intended to benefit copyright owners at the expense of the public. But in Lawrence v. Texas and United States v. Windsor, the Supreme Court seems to have applied the rational basis test and held that state and federal laws were unconstitutional because they were motivated by …

Once We're Done Honeymooning: Obergefell V. Hodges, Incrementalism, And Advances For Sexual Orientation Anti-Discrimination, Jeremiah A. Ho

Kentucky Law Journal

Undoubtedly, the Supreme Court's marriage equality decision in Obergefell v. Hodges is the watershed civil rights decision of our time. Since United States v. Windsor, each recent victory for same-sex couples in the federal courts evidenced that the legal recognition of same-sex marriages in the United States was becoming increasingly secure. Meanwhile, momentum was growing for the visibility of sexual minorities nationally. Yet, is marriage equality the last stop in the pro-LGBTQmovement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality from Windsor to Obergefell can …

Horne V. Usda: The Takings Clause, The Commerce Clause, And The "World's Most Outdated Law", Thomas E. Travis

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

A Survey Of Constitutional Standing In State Courts, Wyatt Sassman

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Life, Liberty, And The Pursuit Of Hunting & Fishing: The Implications Of Kentucky's "Right To Hunt" Constitutional Amendment, Young-Eun Park

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Depth Of Endurance: A Critical Look At Prolonged Solitary Confinement In Light Of The Constitution And A Call To Reform, Shannon H. Church

Kentucky Law Journal

No abstract provided.

A Uniform Test Isn't Here Right Now, But Please Leave A Message: How Altering The Spence Symbolic Speech Test Can Better Meet The Needs Of An Expressive Society, Caitlin Housley

Kentucky Law Journal

No abstract provided.

A Common Law Constitutionalism For The Right To Education, Scott R. Bauries

Law Faculty Scholarly Articles

This Article makes two claims, one descriptive and the other normative. The descriptive claim is that individual rights to education have not been realized under state constitutions because the currently dominant structure of education reform litigation prevents such realization. In state constitutional education clause claims, both pleadings and adjudication generally focus on the equality or adequacy of the system as a whole, rather than on any particular student's educational resources or attainment. The Article traces the roots of the currently dominant systemic approach, and finds these roots in federal institutional reform litigation. This systemic focus leads to a systemic, rather …

How An Environmental Commerce Clause Challenge Presaged The Decision Of Chief Justice Roberts In Nfib V. Sebelius, M. Reed Hopper

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Bringing In The Sheaves: Home Grown Wheat, Weed, And Limits On The Commerce Clause, M. Reed Hopper

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

The Right To Vote Under State Constitutions, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article provides the first comprehensive look at state constitutional provisions explicitly granting the right to vote. We hear that the right to vote is "fundamental," the "essence of a democratic society," and "preservative of all rights." But courts and scholars are still searching for a solution to the puzzle of how best to protect voting rights, especially because the U.S. Supreme Court has underenforced the right to vote. The answer, however, is right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the right to vote, as contrasted with the U.S. Constitution, which …

The Dormant Commerce Clause, The Twenty-First Amendment, And A Freer Wine Market: Why Kentucky Must Wine-Down Its Protectionist Laws Restricting The Direct Shipment Of Wine From Out-Of-State Wineries, Aubrey K. Vaughan

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

"Hobby-Lobby"-Ing For Religious Freedom: Crafting The Religious Employer Exemption To The Ppaca, Emily Pitt Mattingly

Kentucky Law Journal

No abstract provided.