Law Commons^™

The Debate Over An Economic Interpretation Of The Constitution: Where Has Beard Taken Us And Where Are We After Mcguire’S “New” Interpretation?, Joseph Silvia

Joseph Silvia

The Debate over an Economic Interpretation of the Constitution: Where has Beard taken us and where are we after McGuire’s “New” Interpretation? Since 1913, developing a complete analysis on the creation of the American Constitution necessarily requires a thorough consideration of economics. Until Charles A. Beard published his An Economic Interpretation of the Constitution of the United States (1913), the standard account of the Founding Era was that the Framers acted out of idealism – a disinterested, public-regarding impulse to promote democratic ideals for which the Revolution was fought and the American Republic was founded. Beard challenged this idealistic view …

Commentary: Justice Carter's Dissent In Hughes V. Superior Court Of Contra Costa County: Harbingers Of The 60'S Civil Rights Movement And Affirmative Action?, Frederic P. White

Frederic P. White Jr.

Commentary Abstract: Justice Jesse Carter, known as "The Great Dissenter" on the California Supreme Court for 20 years, wrote a dissent in opposition to allowing black workers to picket for employment in Richmond, California in the 1940's. The commentary explores how some of the language used in Justice Carter's dissent eventually adapted to the rhetoric used in the 1960's Civil Rights Movement and as in the continuing Affirmative Action debate.

Let's Talk About Sex (Education): A Novel Interpretation Of The Meyer-Pierce Standard Governing Parental Control In Public Schools, Jacqueline Webb

Jacqueline Webb

This Comment addresses the importance of parental control with regard to sex education in public schools and provides a workable middle of the road standard which balances the Constitutionally-granted rights of parents to control the upbringing of their children with the State’s interest in the education of its youngest citizens.

This Comment argues that the Meyer-Pierce standard has been incorrectly interpreted as creating two polar opposite views with regard to parental control in public schools, and a middle of the road standard is a more suitable application which protects both the parents’ Constitutionally-granted rights and the States’ interest. Part II …

Changes In Modern Military Codes And The Role Of The Military Commander: What Should The United States Learn From This Revolution?, Victor M. Hansen

Victor M. Hansen

This article examines the renewed interest which legal scholars, courts, and practitioners are giving to military justice. In light of this heightened interest, there have been a number of calls to reform the Uniform Code of Military Justice. Specifically, there is pressure to change and reduce the role of the military commander in the justice system. This pressure for change comes in part due to the changes made in the military codes of the United Kingdom and Canada, two countries which share a common tradition with the United States. The overall effect of these changes has been to significantly reduce …

“We The People” Through Young Eyes, Alan E. Garfield

Alan E Garfield

No abstract provided.

Section 4: Individual Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The People Out Of Doors — In Trees, Timothy Zick

Popular Media

No abstract provided.

Constitutional Displacement, Timothy Zick

Popular Media

No abstract provided.

The Contemporary Protest Movement, Timothy Zick

Popular Media

No abstract provided.

September 8, 2007: Hallowed Secularism And Constitutional Law, Bruce Ledewitz

Hallowed Secularism

Hallowed Secularism and Constitutional Law

Does Due Process Have An Original Meaning? On Originalism, Due Process, Procedural Innovation . . . And Parking Tickets, Lawrence Rosenthal

Lawrence Rosenthal

Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems …

Public Protest, Militarization, And Critical Democratic Moments, Timothy Zick

Popular Media

No abstract provided.

The Story Of San Antonio Independent School Dist. V. Rodriguez: School Finance, Local Control, And Constitutional Limits, Michael Heise

Cornell Law Faculty Publications

Part of the Education Law Stories, this book chapter tells the story behind San Antonio Independent School Dist. v. Rodriguez. Mindful of the challenges incident to the federal courts' effort to dismantle de jure and de facto school segregation, the Rodriguez decision evidences reluctance by some of the Justices to become ensnarled in an effort to dismantle school finance systems in way that would affect an overwhelming majority of the nation's public schools. By side-stepping such a confrontation, Rodriguez implicitly reveals important aspects about the federal courts and, in particular, how the Justices view their role in our federal system …

The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric B. Easton

Eric B Easton

This paper documents the collaboration between The Chicago Tribune’s Robert McCormick and attorney Weymouth Kirkland to mobilize the press to carry Near v. Minnesota to the Supreme Court. In an earlier paper, I demonstrated how the press acts as “strategic litigator” to shape the legal environment in which reporters and editors practice their craft. The collaboration discussed in this article established the precedent for monitoring litigation that implicates First Amendment values and deciding whether, when, and how to intervene.

A Wolf In Sheep's Clothing: The Unilateral Executive And The Separation Of Powers, Thomas J. Cleary

Thomas J Cleary

This article considers executive power relative to the implied confines of the separation of powers doctrine. The goal of this article is to consider whether the separation of powers may surreptitiously veil the true extent of executive power. More specifically, this article considers the sources and legitimacy of unilateral executive action. In doing so five sources of support for such action are identified. These five sources include: (1) the unitary nature of the executive office, (2) implied executive powers under the Constitution, (3) executive tools such as signing statements, executive orders, and executive agreements, (4) supportive legislation, and (5) the …

Presidential Power In Comparative Perspective: The Puzzling Persistence Of Imperial Presidency In Post-Authoritarian Africa, Kwasi H. Prempeh

H. Kwasi Prempeh

One of the paradoxes of modern democratic government is the phenomenon of the chief executive who rules without regard to formal checks and balances. As democratic institutions and constitutional government have spread to regions of the world once dominated by authoritarian regimes, a longstanding feature of the ancien régime—the imperial presidency—has persisted. While constitutional scholars have shown a great deal of interest in new constitutional courts in the world’s newest democracies, the contemporaneous phenomenon of persistent imperial presidency has been largely ignored. Although relatively little attention has been paid to it in comparative constitutional discourse, Africa, too, has witnessed, since …

Presidential Power In Comparative Perspective: The Puzzling Persistence Of Imperial Presidency Of Post-Authoritarian Africa, H. Kwasi Prempeh

H. Kwasi Prempeh

ABSTRACT One of the paradoxes of modern democratic government is the phenomenon of the chief executive who rules without regard to formal checks and balances. As democratic institutions and constitutional government have spread to regions of the world once dominated by authoritarian regimes, a longstanding feature of the ancien régime—the imperial presidency—has persisted. While constitutional scholars have shown a great deal of interest in new constitutional courts in the world’s newest democracies, the contemporaneous phenomenon of persistent imperial presidency has been largely ignored. Although relatively little attention has been paid to it in comparative constitutional discourse, Africa, too, has witnessed, …

"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner

William B Turner

This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …

When The Immovable Object Meets The Unstoppable Force: Search And Seizure In The Age Of Terrorism, Anthony C. Coveny

Anthony C Coveny Ph.D.,J.D.,MA.

Abstract In 2001, the airborne attack on the World Trade Center, unlike any other in U.S. History, shook America to her core. In the process, the hand of government was strengthened at the expense of the constitutional liberties afforded by the Fourth Amendment. MacWade v. Kelly is just one more example of the increasing governmental interest in securing this nation from another terrorist attack, and in so doing, subjecting Americans to more “big brother” government. In MacWade, the New York Police Department faced down a 42 U.S.C 1983 challenge to its Container Inspection Program (CIP) in the name of security. …

The Insanity Of Mens Rea: Due Process And The Abolition Of The Insanity Defense, Jean K. Phillips, Rebecca E. Woodman

Jean K Phillips

The Insanity of the Mens Rea Model:

Due Process and the Abolition of the Insanity Defense.

Jean K. Gilles Phillips and Rebecca E. Woodman

Abstract

In the last 15 years a flurry of legislative activity has taken place as states have attempted to redefine the insanity defense. This article focuses on those states who chose not just to refine the definition of insanity, but to completely abolish it as an affirmative defense.

During the 2006 Supreme Court term many believed that the Court would answer the question of whether the Due Process Clause protects the right of the accused to …

The Future Of School Finance Litigation, James E. Ryan

james e. ryan

Just about everyone who writes on the topic agrees that school finance litigation, going forward, will be inextricably linked with the standards and testing movement. The basic idea is that state constitutions can and should be read to protect the right to an adequate education. Academic standards, in turn, define what counts as an adequate education. This leaves to courts in school finance cases the task of determining if schools have sufficient resources to meet the standards -- and thus provide an adequate education. Linking school finance litigation to standards and testing, so everyone also seems to agree, will benefit …

Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman

James L. Huffman

Abstract

The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.

Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of …

Originalism And The Problem Of Fundament Fairness, R. George Wright

R. George Wright Professor

Originalism is perhaps the most prominent theory of how to interpret the Constitution. Originalism, however, rests upon a process of constitutional drafting and ratification that systematically excluded important demographic groups. Originalism thus rests on a fundamental injustice. Crucially, this fundamental injustice is not confined to the past once the various excluded groups gain the franchise. Originalist theories remain crucially tainted and skewed, particularly with respect to constitutional questions on which originally excluded groups had interests diverging from those of non-excluded groups. The continuing effects of the fundamental unfairness of the constitutional drafting and ratifying process are explored through considering the …

Post-Trauma: Cambodian Refugees And Social Security's Disability Fraud Investigations, Theodore A.B. Mccombs

Theodore A.B. McCombs

Since 2003, the Oakland unit of Social Security’s Cooperative Disability Investigations (“CDI”) program has targeted certain Cambodian refugee applicants with Post-Traumatic Stress Disorder and Depression for fraud investigations. The practices of Social Security’s anti-fraud program in Oakland reveal disturbing disadvantages to Cambodian refugee applicants in particular, including institutional prejudices in Social Security’s rules and CDI agents’ gross insensitivity to claimants’ impairments and cultural realities. This Note examines these disadvantages under the legal norms of national origin discrimination, disability discrimination, and due process, and concludes with a policy proposal on how Social Security might better protect claimants’ rights and interests while …

Of Remedy, Juries, And State Regulation Of Punitive Damages: The Significance Of Philip Morris V. Williams, Michael P. Allen

Michael P Allen

On February 20, 2007, the United States Supreme Court announced an important decision further limiting punitive damage awards. That decision, Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007), is the latest in the Court’s decade-plus long project to explain in what respects the United States Constitution limits this particular remedy. While apparently modest, the ruling is a highly significant step in the Court’s development of constitutional doctrine in an area of great public interest.

This Article considers the implications of Philip Morris on the Court’s recently-developed constitutional jurisprudence concerning punitive damages. It has four parts in addition to …

Deliberate Indifference, Professional Judgment, And The Constitution: On Liberty Interests In The Child Placement Context, Mark Strasser

Mark Strasser

Courts and commentators often argue that because adoption is created by state law, there can neither be a constitutional right to adopt nor to be adopted. They sometimes suggest that the major Supreme Court case in this area--Smith v. Organization of Foster Families For Equality and Reform (OFFER)—expressly rejects that there can be rights in the adoption context. Yet, the relevant constitutional jurisprudence is much more nuanced than these courts and commentators suggest, because the issue has not been correctly framed. The focus of discussion should be on whether there is a constitutionally protected liberty interest in the state’s not …

Preaching, Fundraising And The Constitution: On Proselytizing And The First Amendment , Mark Strasser

Mark Strasser

In a series of cases, the Court has suggested that proselytizing, whether or not including solicitation of donations, is entitled to robust constitutional protection. The Court recently affirmed that view in Watchtower Bible and Tract Society of New York, Incorporated v. Village of Stratton. Yet, the relevant jurisprudence is much less clear than either the Court or commentators seem willing to admit. When one considers the cases involving the International Society for Krishna Consciousness (ISKCON), one sees that the protections for proselytizing, especially when involving solicitation, are much weaker than might first be thought. This Article explores the proselytizing cases, …

The Often Illusory Protections Of “Biology Plus:” On The Supreme Court’S Parental Rights Jurisprudence, Mark Strasser

Mark Strasser

Over the past several decades, state supreme courts have been forced to analyze the degree to which the United States Constitution protects the parental rights of unwed fathers. Basically, some courts suggest that an unwed father will retain his parental rights as long as he does not culpably act or fail to act in a way which deprives him of his rights, while others suggest that an unwed father will acquire parental rights only if he affirmatively avails himself of the opportunity to establish a relationship with his child. The difference between these views can have important implications for the …

Confronting The “Ongoing Emergency”: A Pragmatic Approach To Hearsay Evidence In The Context Of The Sixth Amendment, Ellen Liang Yee

ellen yee

The Supreme Court’s path breaking decision in Crawford v. Washington, 541 U.S 36 (2004), held that admission of an extrajudicial testimonial statement by an unavailable declarant-witness violates the Confrontation Clause unless the defendant has an opportunity to cross-examine the declarant. Unfortunately, the determination of admissibility for the trial court judge has not been simplified after Crawford. The role of the trial court judge has now shifted from determining the reliability of the hearsay evidence (as was required before Crawford) to a determination of the testimonial nature of the declarant’s statement. However, with some small exceptions, the Court in Crawford explicitly …

When Obscenity Discriminates, Elizabeth M. Glazer

Elizabeth M Glazer

When public indecency statutes outlaw gender nonconformity, obscenity discriminates; when movie ratings censor representations of sexual minorities, obscenity discriminates, and discriminates on the basis of their status as sexual minorities. This Article addresses obscenity doctrine’s infliction of first generation, or status discrimination against sexual minorities by conflating “sex” – and the prurient representation of sex that constitutes obscenity – and “sexual orientation.” Civil rights lawyers and scholars have turned their attentions away from “first generation” discrimination,” where groups experience discrimination on the basis of their status, and toward “second generation” discrimination, where groups experience discrimination for failing to downplay or …