Law Commons^™

Nothing To Do With Personhood: Corporate Constitutional Rights And The Principle Of Confiscation, Paul Kens Dr.

Paul Kens Dr.

In its 2010 decision Citizens United v. Federal Election Commission the Supreme Court overruled a federal statute that limited a corporation’s ability to pay for political advertising out of its general treasury funds. Those limits, it ruled, violated the corporation’s right to freedom of speech. The case has since become notorious for the widely held belief that, in doing so, the Court declared that corporations are “persons,” possessing the same constitutional rights as flesh and blood human beings. Four years later the Court seemed to expand on this conclusion when it ruled in Burwell v. Hobby Lobby that a general …

Federalism, Mandates And Individual Liberty, John T. Valauri

John T. Valauri

FEDERALISM, MANDATES AND INDIVIDUAL LIBERTY ABSTRACT This article presents the missing federalism and individual liberty portion of Chief Justice Roberts’ health care case opinion. It illuminates and reinforces the commerce power and limited and enumerated powers arguments he makes there just as the Tenth Amendment and the doctrine of federalism more generally illuminate and reinforce the commerce power and the doctrine of limited and enumerated powers in constitutional law and doctrine. It also answers and explains the claims made by the Chief Justice’s critics on and off the bench that his opinion and similar arguments made by like-thinking lower court …

Full Faith And Conflict Of Law: The Peculiar Legacy Of Legal Federalism, Sheldon D. Pollack

Sheldon D Pollack

The new constitution crafted by the delegates to the Constitutional Convention of 1787 was a major improvement over its predecessor (the ill-fated Articles of Confederation), especially in concentrating greater political authority at the center of the confederation, it imposed a flawed constitutional structure on the new regime based on the same untenable proposition that undermined the national government of the Confederacy—namely, that it was possible to preserve the states as separate “sovereign” political organizations within the political union. In adopting a federal constitutional structure for the new republic (as opposed to a “consolidated” or “unitary” government), the Founders institutionalized a …

Jones, Lackey, And Teague, Richard Broughton

Richard Broughton

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane. By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making …

Calling Out Maryland V. King: Dna, Cell Phones, And The Fourth Amendment, Jennie Vee Silk

Jennie Vee Silk

In Maryland v. King, the Supreme Court narrowly upheld a Maryland statute that permits police to obtain a DNA sample from an arrestee without a search warrant. A year later, the Court drastically changed course and provided significantly more protection to an arrestee’s privacy. In a unanimous decision, the Court in Riley v. California held that police must obtain a search warrant before they can search the cell phone of an arrestee.

This article is the first to compare the Court’s conflicting decisions in Riley and King. Riley and King present the same issue: governmental invasion of privacy for …

Mother May I? No, You May Not! Parental Consent Requirements For Students To Participate In Student-Led Clubs At Public Schools, Kelly A. Sherrill Linkous

Kelly A. Sherrill Linkous

This article considers the constitutionality of laws or policies requiring parental consent for student participation in school-based clubs or organizations, along with their consistency with the language in the federal Equal Access Act. It weighs the dueling parental right to direct the upbringing of their children against students’ constitutional speech and religious exercise rights within the schoolhouse gate. As a vehicle to analyze the constitutionality of all similarly-worded state laws and school district policies, the article examines a Georgia statute mandating parental consent for student participation in clubs. The Georgia statute is similar to Oklahoma’s and Utah’s statutes, as well …

Free Exercise And The Definition Of Religion: Confusion In The Federal Courts, Mark Strasser

Mark Strasser

The United States Supreme Court has sent mixed messages about what constitutes religion for free exercise purposes. The Court’s failure to offer clear criteria has resulted in widely differing interpretations in the lower courts, resulting in dissimilar treatment of relevantly similar cases. Further, some of the circuit courts employ factors to determine what qualifies as religious that are much more restrictive than the factors employed by the Court.

This article describes some of the differing approaches to defining religion offered in the circuits, noting that one of the approaches adopted across a few circuits not only mischaracterizes the Supreme Court’s …

Definitions, Religion, And Free Exercise Guarantees, Mark Strasser

Mark Strasser

The First Amendment to the United States Constitution protects the free exercise of religion. Non-religious practices do not receive those same protections, which makes the ability to distinguish between religious and non-religious practices important. Regrettably, members of the Court have been unable to agree about how to distinguish the religious from the non-religious—sometimes, the implicit criteria focus on the sincerity of the beliefs, sometimes the strength of the beliefs or the role that they play in an individual’s life, and sometimes the kind of beliefs. In short, the Court has virtually guaranteed an incoherent jurisprudence by sending contradictory signals with …

Eliminating Undue Burdens To Women's Health: Reproductive Justice Under A “Contexual Intent” Standard, Katie L. Filous

Katie L. Filous

By examining Jackson Women’s Health Organization, et. al. v. Mary Currier, et. al., this article will advocate for the position that the Supreme Court should utilize a “contextual intent” standard in reproductive justice cases in which “undue burdens” and “substantial obstacles” are being evaluated. Part I of the article will discuss the shift from reproductive “rights” to reproductive “justice” by discussing various state legislatures’ attempts at restricting abortion in conjunction with Ian Haney Lopez’s “contextual intent” theory. Part II will discuss the historical roots of varying analyses of reproductive justice cases, from public health and safety to fetal viability to …

Executing On An Empty Tank: Protecting The Supply Of Lethal Injection Drugs From Public Records Requests, Ira K. Rushing

Ira K Rushing

With the US Supreme Court holding the death penalty and lethal injection as Constitutional, there has been a new strategy for condemned prisoners. Using public information requests to discover the identities of the suppliers of lethal injection drugs and others in ancillary roles, the media has broad range to publish this information. This has led to many suppliers and compounding pharmacies to withhold supplies of the drugs to states using them in executions. This paper lays out a history of the death penalty in Mississippi that has gotten us to this point. It then attempts to provide persuasive arguments on …

The Doctrine Of True Threats: Protecting Our Ever-Shrinking First Amendment Rights In The New Era Of Communication, Mary M. Roark

Mary M Roark

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Such protection has withstood the test of time and is heralded as one of our most precious rights as Americans. “The hallmark of the protection of free speech is to allow ‘free trade in ideas’—even ideas that the overwhelming majority of people might find distasteful or discomforting." However, “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem." One such proscribable form of speech is the “true …

Dogging Darwin: America's Revolt Against The Teaching Of Evolution, J. Herbie Difonzo, Ruth C. Stern

J. Herbie DiFonzo

Abstract

More than four in ten Americans believe that God created humans in their present form 10,000 years ago. American antagonism toward the teaching of evolution is deeply rooted in fundamentalist tradition and an aversion to intellectualism. These forces have combined to demonize Charles Darwin to such an extent that sectarian-based legal and political attacks on evolution show no signs of abating. Darwin’s day in court began in 1925 with the famous Scopes Monkey Trial. It continued into the 21^st century with Kitzmiller v. Dover Area Schools. Throughout, the core creationist agenda has remained the same, although an …

Does The Right To Elective Abortion Include The Right To Ensure The Death Of The Fetus?, Stephen G. Gilles

Stephen G Gilles

Is the right to an elective abortion limited to terminating the woman’s pregnancy, or does it also include the right to ensure the death of the fetus? Important as this question is in principle, in today’s world the conduct that would squarely raise it cannot occur in practice. The right to elective abortion applies only to fetuses that are not viable, which by definition means that they have been determined to have no realistic chance of surviving outside the uterus. Even if abortion providers used fetus-sparing methods rather than the fetus-killing methods they currently prefer, pre-viable fetuses would die within …

The Law Of Antigayism, Huhnkie Lee

Huhnkie Lee

No abstract provided.

Dog Whistling, The Color-Blind Jurisprudential Regime And The Constitutional Politics Of Race, Calvin J. Terbeek

Calvin J TerBeek

Ian Haney Lopez’s new book, "Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class", has a provocative thesis. Lopez contends that dog-whistling, that is, coded racial rhetoric, “explains how politicians backed by concentrated wealth manipulate racial appeals to win elections and also to win support for regressive policies that help corporations and the super-rich, and in the process wreck the middle class." Though this may seem plausible enough, the thesis cannot stand up to scrutiny; the relevant political science literature provides no support for this. What is more, Lopez's treatment of the Supreme Court's …

Venezuela Frente Al Constitucionalismo. Cuando Los Fines No Justifican Los Medios, Rodrigo A. Poyanco Bugueño

Rodrigo A. Poyanco Bugueño

En este capítulo del libro "Derechos Humanos y Juventud" se trata de evidenciar cómo los argumentos del "respaldo mayoritario" del gobierno venezolano, o la insuficiencia de la democracia constitucional y los derechos civiles y políticos frente a la necesidad de las personas de escasos recursos, no son suficientes para disimular la actual situación evidentemente anticonstitucional en Venezuela.

Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study, Todd E. Pettys

Todd E. Pettys

In a recent, widely publicized study, a prestigious team of political scientists concluded that there is strong evidence of ideological in-group bias among the Supreme Court’s members in First Amendment free-expression cases, with the current four most conservative justices being the Roberts Court’s worst offenders. Beneath the surface of the authors’ conclusions, however, one finds a surprisingly sizable combination of coding errors, superficial case readings, and questionable judgments about litigants’ ideological affiliations. Many of those problems likely flow either from shortcomings that reportedly afflict the Supreme Court Database (the data set that nearly always provides the starting point for empirical …

Originalism In Puerto Rico: Original Explication And Its Relation With Clear Text, Broad Purpose And Progressive Policy, Jorge Farinacci-Fernós

Jorge Farinacci-Fernós

Originalism is neither inherently conservative nor exclusive to the United States. Puerto Rico, a self-governing U.S. jurisdiction, has been using a particular form of originalism as its main methodological tool for constitutional interpretation and adjudication since 1952. Puerto Rican originalism has several key traits. First, it's politically progressive, due to the framers' explicit progressive agenda which is palpable from the historical sources. Second, their intent is empirically verifiable, due to the formality and transparency of constitutional creation that generated a formal and elaborate record. Third, the constitutional record is considered the authoritative source of constitutional meaning. Fourth, the textual characteristics …

Can A One Star Review Get You Sued? The Right To Anonymous Speech On The Internet And The Future Of Internet “Unmasking” Statutes, Jesse D. Lively

Jesse D Lively

This Comment argues that the Supreme Court of Virginia should first reverse the Virginia Court of Appeal’s decision when it hears the Yelp case later this year. Secondly, the court hold that the Virginia statute for identifying persons communicating anonymously over the Internet violates the First Amendment's required showing of merit on both law and facts before a subpoena duces tecum to identify an anonymous speaker can be enforced. Lastly, it should adopt a new “unveiling standard” similar to the standards used in either Dendrite or Cahill. Part II examines the jurisprudential history of identifying anonymous Internet speakers in defamation …

Taxes And Takings - And First Principles, George B. Hefferan Jr

George B Hefferan Jr

No abstract provided.

Taxes And Takings - And First Principles, George B. Hefferan Jr

George B Hefferan Jr

Public school property taxes are a verifiable violation of the takings clauses of the state and federal constitutions.

Rights, Privileges, And The Future Of Marriage, Adam Macleod

Adam MacLeod

On the eve of its final triumph, has the cause of marriage equality fallen short? This essay discusses persistent differences in the incidents that attach to same-sex marriages versus man-woman marriages. It examines these in light of the distinction between fundamental rights and concessions of privilege in marriage law, and in common law constitutionalism generally. The Obergefell majority's premise that the marriage right is created and conferred by positive law renders the rights and duties of same-sex marriage unstable. By contrast, the rights and duties of the natural family have proven surprisingly resilient, despite their incompatibility with full marriage equality, …

Jones, Lackey, And Teague, Richard Broughton

Richard Broughton

In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane. By comprehensively addressing the merits of the Teague bar as applied to Lackey claims, and making …

Searching For Equity Amid A System Of Schools: The View From New Orleans, Robert A. Garda Jr.

Robert A. Garda

Hurricane Katrina leveled both the buildings and governance structure of the New Orleans school system. The system was transformed from one elected school board controlling nearly all the schools to a system of schools with sixty-three school districts operating within the city’s geographic boundaries that are run by forty-four independent school boards. There is not a more decentralized school governance structure in the United States. This article discusses how this new system of schools is attempting to achieve equal educational opportunities for its most vulnerable and at-risk student populations: the poor, minorities, students with disabilities, and English Language Learners.

For …

The Lost Due Process Doctrines, Paul J. Larkin Jr.

Paul J Larkin Jr.

In order to render manageable the doctrinal development of the Due Process Clause, the Supreme Court over the last fifty years has attempted to fit its decisions into one of two distinct categories: procedural requirements that the government must satisfy before depriving someone of life, liberty, or property, and substantive limitations on exactly what deprivations the government may accomplish. Unfortunately, neither the law nor life can be so easily classified. The Court has decided numerous cases that defy its recent attempts to divide Gaul into two parts, not three (or more). Several due process doctrines seem to have been isolated …

2015 Update: Can I Bring My Gun? A Fifty State Survey Of Firearm Laws Impacting Policies Prohibiting Handguns In Public Libraries, Diana Gleason

diana gleason

In Capital Area District Library v. Michigan Open Carry, 826 N.W. 2d 736 (2012), the Michigan Court of Appeals concluded that state law preempted the library’s weapons policy prohibiting firearms in the library. My article, Can I Bring My Gun? A Fifty State Survey of Firearm Laws Impacting Policies Prohibiting Handguns in Public Libraries,* asked how laws in each state impact similar policies prohibiting handguns in public libraries. The article warned that many states and the federal government were in the process of amending laws to increase or decrease gun restrictions, and that ongoing change could be expected. In fact, …

The Posse Comitatus And The Office Of Sheriff: Armed Citizens Summoned To The Aid Of Law Enforcement, David B. Kopel

David B Kopel

Posse comitatus is the legal power of sheriffs and other officials to summon armed citizens to aid in keeping the peace. The posse comitatus can be traced back as least as far as the reign of Alfred the Great in ninth century England. The institution thrives today in the United States; a study of Colorado finds many county sheriffs have active posses. Like the law of the posse comitatus, the law of the office of sheriff has been remarkably stable for over a millennium. This Article presents the history and law of the posse comitatus and the office of sheriff …

Negotiating Federalism And The Structural Constitution: Navigating The Separation Of Powers Both Vertically And Horizontally (A Response To Aziz Huq), Erin Ryan

Erin Ryan

This essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution, 114 Colum. L. Rev. 1595 (2014). In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. He argues that constitutional ambiguities in the horizontal allocation of power are sometimes best resolved through legislative-executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal …

Environmental Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

Anyone paying attention has noticed that many of the most controversial issues in American governance—health care reform, marriage rights, immigration, drug law, and others—involve questions of federalism. The intensity of these disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world, where the answers to jurisdictional questions are less and less obvious. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy, and it is likely to do so for some time. From mining to nuclear waste …

New York Times V. Sullivan And The Rhetorics Of Race: A Look At The Briefs, Oral Arguments, And Opinions, Carlo A. Pedrioli

Carlo A. Pedrioli

Given the strife of the Civil Rights Movement that surrounded the case, this article looks back at the use of race in New York Times v. Sullivan. Specifically, the article examines how the advocates, led by Herbert Wechsler for the Times, I. H. Wachtel, William Rogers, and Samuel Pierce for the four ministers, and Roland Nachman for Sullivan, dealt with race in their rhetorics to the Court, both in their merits briefs and their oral arguments, and also how the justices used race in their opinions. Although Justice William Brennan did not explicitly focus on race in his opinion for …