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Drawing The Line On Legislative Privilege: Interpreting State Speech Or Debate Clauses In Redistricting Litigation, J. Pierce Lamberson Jan 2017

Drawing The Line On Legislative Privilege: Interpreting State Speech Or Debate Clauses In Redistricting Litigation, J. Pierce Lamberson

Washington University Law Review

The United States Constitution and forty-three state constitutions include a Speech or Debate Clause granting legislators a legal privilege for their legislative work.1 Although there is a well-developed body of federal Speech or Debate Clause law granting an absolute privilege to legislators, case law interpreting many state Speech or Debate Clauses is undeveloped.2 One context in which state Speech or Debate Clauses are tested is redistricting litigation.3 State courts provide a desirable forum for challengers seeking to expose partisan gerrymandering in redistricting plans.4 Because the potential for exposing partisan gerrymandering increases if state legislators’ statements and ...


Gendered Due Process Of Juvenile Justice, Annette R. Appell Jan 2017

Gendered Due Process Of Juvenile Justice, Annette R. Appell

Washington University Journal of Law & Policy

This Essay illustrates how the United States Constitution has developed gendered jurisprudence for children and families that affords children a higher level of due process in juvenile courts than is afforded to their parents. Appell discusses this jurisprudence through the lens of child protection and delinquency cases, followed by the laws treatment of children outside of the familial context. Appell highlights the higher level of constitutional freedom afforded children who break the law versus their parents who raise them and ends with a discussion of the implications this has on juvenile jurisprudence.


The Battle For The Remote Control—Has The Fcc Indecency Policy Worn Out Its Welcome In America's Living Room?, Sarah Herman Jan 2012

The Battle For The Remote Control—Has The Fcc Indecency Policy Worn Out Its Welcome In America's Living Room?, Sarah Herman

Washington University Journal of Law & Policy

The Supreme Court granted certiorari to decide whether the Federal Communications Commission‘s (the "FCC" or the "Commission") indecency policy violates the First and Fifth Amendments (Fox IV). Oral argument was heard on January 10, 2012. The case is on appeal from the Second Circuit, which struck down the FCC's indecency policy in Fox Television Stations, Inc. v. Federal Communications Commission (Fox III) as impermissibly vague in violation of free speech. Part I of this Note traces the history of the FCC‘s indecency policy. It discusses relevant technological advances that are useful in filtering television programming to safeguard ...


J.D.B. And The Maturing Of Juvenile Confession Suppression Law, Martin Guggenheim, Randy Hertz Jan 2012

J.D.B. And The Maturing Of Juvenile Confession Suppression Law, Martin Guggenheim, Randy Hertz

Washington University Journal of Law & Policy

The Supreme Court‘s decision in J.D.B. v. North Carolina in 2011 marks a watershed moment in the jurisprudence of juvenile rights. Addressing a question left open in Miranda v. Arizona more than four decades ago, the Court made clear in J.D.B. that a judicial determination of whether a minor suspect is "in custody" for Miranda purposes must take into account the age of the suspect because juveniles cannot be held to the same standard as adults. When one considers the broader context of the Court's criminal law jurisprudence of recent years, it is apparent ...


Outside The Police Station: Dealing With The Potential For Self-Incrimination In Juvenile Court, Lourdes M. Rosado Jan 2012

Outside The Police Station: Dealing With The Potential For Self-Incrimination In Juvenile Court, Lourdes M. Rosado

Washington University Journal of Law & Policy

Youth in the justice system are at risk of self-incrimination, and the attendant consequence of prosecution, in ways that are distinct from those faced by adult criminal defendants. For example, the current trend to screen and assess court-involved youth (often before the youth are adjudicated delinquent) for mental health and substance abuse problems, using instruments that inquire about a wide range of offending behavior, raises the real possibility that youth will incriminate themselves. Under many states‘ transfer/waiver processes, juveniles facing prosecution as adults must submit to psychological or psychosocial evaluations in order to sustain their burden of showing that ...


Rationing Justice By Rationing Lawyers, Peter A. Joy Jan 2011

Rationing Justice By Rationing Lawyers, Peter A. Joy

Washington University Journal of Law & Policy

The number of lawyers in the United States continues to increase, but low and middle-income persons still find it difficult, if not impossible, to afford legal assistance. National and state surveys reveal that more than 80 percent of the civil legal needs of the poor go unmet, as do a majority of the needs of middle-income persons. Legal representation can often dramatically increase a person’s ability to win at trial or to negotiate a favorable outcome, and the lack of access to lawyers effectively closes the courthouse doors for millions. This Article focuses on the crisis in Missouri's ...


Missouri's Health Care Battle And Differential Judicial Review Of Popular Lawmaking, Raquel Frisardi Jan 2011

Missouri's Health Care Battle And Differential Judicial Review Of Popular Lawmaking, Raquel Frisardi

Washington University Law Review

No abstract provided.


Sex Offenders Are Different: Extending Graham To Categorically Protect The Less Culpable, Eric J. Buske Jan 2011

Sex Offenders Are Different: Extending Graham To Categorically Protect The Less Culpable, Eric J. Buske

Washington University Law Review

No abstract provided.


Taking The Ninth: A Victim's Right Of Privacy, Sarah Tupper Jan 2008

Taking The Ninth: A Victim's Right Of Privacy, Sarah Tupper

Washington University Journal of Law & Policy

No abstract provided.


Without A Leg To Stand On: The Merger Of Article Iii Standing And Merits In Environmental Cases, Nigel Cooney Jan 2007

Without A Leg To Stand On: The Merger Of Article Iii Standing And Merits In Environmental Cases, Nigel Cooney

Washington University Journal of Law & Policy

No abstract provided.


The Endorsement Court, Jay D. Wexler Jan 2006

The Endorsement Court, Jay D. Wexler

Washington University Journal of Law & Policy

The Rehnquist Court was the first to apply the so-called “endorsement test” to evaluate the constitutionality of government-sponsored religious symbols and displays. The test asks whether a “reasonable observer” would feel that the government has sent “a message to non-adherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community.” Although the Supreme Court itself has applied the endorsement test in only a handful of cases, the test has played an extremely important role in how courts throughout the country have evaluated government ...


Some Animals Are More Equal Than Others: The Rehnquist Court And “Majority Religion”, Garrett Epps Jan 2006

Some Animals Are More Equal Than Others: The Rehnquist Court And “Majority Religion”, Garrett Epps

Washington University Journal of Law & Policy

This Essay explores the evolution of the remarkable new view of religion and the Constitution during the Rehnquist Court era. Part II analyzes Justice Scalia’s dissent in Lee v. Weisman, which set out the agenda for the religious caucus of the Court in the early years. Part III shows how the rhetoric of equality and historical grievance has been used to dismantle the boundary—for old time’s sake, let us call it a “wall of separation”—that separated religious institutions from the public fisc. Part IV analyzes Justice Scalia’s dissent in McCreary County v. American Civil Liberties ...


Trumping The First Amendment?, Lee Epstein, Jeffrey A. Segal Jan 2006

Trumping The First Amendment?, Lee Epstein, Jeffrey A. Segal

Washington University Journal of Law & Policy

The primary goal of this Essay is to assess whether the relationship between the ideology of Supreme Court Justices and their support for the First Amendment guarantees of speech, press, assembly, and association has declined, such that left-of-center Justices no longer consistently support those guarantees, and right-of-center Justices no longer consistently support their regulation. Utilizing data drawn from the 1953 through 2004 terms of the Court, we show that, in disputes in which only First Amendment claims are at issue, the more liberal the Justice, the higher the likelihood that he or she will vote in favor of litigants alleging ...


Property And Speech, Robert Allen Sedler Jan 2006

Property And Speech, Robert Allen Sedler

Washington University Journal of Law & Policy

This Essay analyzes the impact of the First Amendment’s guarantee of freedom of speech on the use, enjoyment and control of property. The Essay analyzes this impact with reference to “The First Amendment as Sword” and “The First Amendment as Shield.” In “The First Amendment as Sword,” the Essay discusses how the First Amendment has been asserted to interfere with a property owner’s use or control of tangible property and to limit the protection of an owner’s property interests. The following areas will be covered: (1) Picketing and Protests; (2) Boycotts; (3) Governmental Economic Regulation; (4) Home ...


A Property Rights View: Commentary On “Property And Speech” By Robert A. Sedler, Shelley Ross Saxer Jan 2006

A Property Rights View: Commentary On “Property And Speech” By Robert A. Sedler, Shelley Ross Saxer

Washington University Journal of Law & Policy

I begin by exploring whether the First Amendment, as a sword, obscures the difference between state and private action by constitutionally preventing private property owners from interfering with an individual’s free expression rights. Thus, private property owners, who are not otherwise held to constitutional standards, cannot block activities of others that invade their property interests because these activities are protected by the First Amendment. This Commentary will address an additional category, not mentioned by Professor Sedler in his Essay—the government’s use of eminent domain, which can be used as a “sword” against land uses protected by the ...


The Apparent Consistency Of Religion Clause Doctrine, Abner S. Greene Jan 2006

The Apparent Consistency Of Religion Clause Doctrine, Abner S. Greene

Washington University Journal of Law & Policy

A hallmark of religion clause scholarship is the complaint that the doctrine is a hopeless muddle. However, the Rehnquist Court brought a considerable amount of consistency—well, apparent consistency— to the doctrine. I say “apparent consistency” because, just as a paradox is only a seeming contradiction, so was the Rehnquist Court’s religion clause jurisprudence only seemingly consistent. The doctrine focuses on whether the government singles out religion for special benefit (generally problematic under the Establishment Clause) or for special burden (generally problematic under the Free Exercise Clause). If, on the other hand, the government benefits religion as part of ...


What's Right And Wrong With “No Endorsement”, Thomas C. Berg Jan 2006

What's Right And Wrong With “No Endorsement”, Thomas C. Berg

Washington University Journal of Law & Policy

Contrary to Professor Wexler, I argue that unless the endorsement test is properly understood and limited, it has the critical flaw of putting the Establishment Clause at war with the other religion guarantee of the First Amendment, the Free Exercise Clause. If the Establishment Clause forbade government endorsement of religion in all contexts, it would undermine the government’s ability to give special accommodation to religious practice and thus would severely impair free exercise values. “No endorsement of religion” thus must function, not as the general requirement of the Establishment Clause, but only as a rule for the particular class ...


The Fatal Flaw Of Standing: A Proposal For An Article I Tribunal For Environmental Claims, Timothy C. Hodits Jan 2006

The Fatal Flaw Of Standing: A Proposal For An Article I Tribunal For Environmental Claims, Timothy C. Hodits

Washington University Law Review

No abstract provided.


Libel In The Blogosphere: Some Preliminary Thoughts, Glenn Harlan Reynolds Jan 2006

Libel In The Blogosphere: Some Preliminary Thoughts, Glenn Harlan Reynolds

Washington University Law Review

People have been talking about libel and bloggers since the blogosphere was new, but the big news at this point is that, so far at least, there’s more talk than action—despite the millions of blogs, and probable billions of blog entries to date, there haven’t really been any major blogrelated libel cases, and the number in total is quite small. People are still talking about Blumenthal v. Drudge, a case that predates the blogosphere, when they talk about blogs and libel, and no major new case has emerged to take its place. The absence of a major ...


The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna Jan 2006

The Rehnquist Court And The Groundwork For Greater First Amendment Scrutiny Of Intellectual Property, Mark P. Mckenna

Washington University Journal of Law & Policy

In the last few years, many pages have been devoted to retrospectives on Justice Rehnquist and the Rehnquist Court, a fair number of which focused on Justice Rehnquist’s First Amendment jurisprudence. I focus here not on Justice Rehnquist specifically, but on the Supreme Court as a whole during Rehnquist’s tenure. Specifically, I want to address the Court’s view of the role of the First Amendment in intellectual property cases. My thesis is a modest one: while one certainly cannot describe the Rehnquist Court as eager to find a conflict between intellectual property laws and the First Amendment ...


Justice Scalia And The Religion Clauses: A Comment On Professor Epps, Eric R. Claeys Jan 2006

Justice Scalia And The Religion Clauses: A Comment On Professor Epps, Eric R. Claeys

Washington University Journal of Law & Policy

In this Comment, I hope to identify the areas in which Professor Epps makes novel and important insights, and the areas in which originalists and religionists will disagree with how he evaluates those insights.


Speech And Institutional Choice, Thomas B. Nachbar Jan 2006

Speech And Institutional Choice, Thomas B. Nachbar

Washington University Journal of Law & Policy

Even if an authoritarian state cannot successfully control all of the conduits by which information crosses its borders, successfully targeting a few of the largest ones is likely to bring enough of a return to justify the effort, a point at the heart of John Palfrey and Robert Rogoyski’s Essay for this conference. What is true of states and regulation for political gain will be true of private interests and regulation for financial gain. Control over the means of creating and sharing the digital content would provide any firm substantial rents, either in the form of higher prices or ...


A Tale Of Two Bloggers: Free Speech And Privacy In The Blogosphere, Daniel J. Solove Jan 2006

A Tale Of Two Bloggers: Free Speech And Privacy In The Blogosphere, Daniel J. Solove

Washington University Law Review

It is true that existing law lacks nimble ways to resolve disputes about speech and privacy on the Internet. Lawsuits are costly to litigate, and being sued can saddle a blogger with massive expenses. Bloggers often don’t have deep pockets, and therefore it might be difficult for plaintiffs to find lawyers willing to take their cases. Lawsuits can take years to resolve. People seeking to protect their privacy must risk further publicity in bringing suit. These are certainly serious problems, but the solution shouldn’t be to insulate bloggers from the law. The solution is to create a system ...


Commerce Versus Commentary: Gripe Sites, Parody, And The First Amendment In Cyberspace, Jacqueline D. Lipton Jan 2006

Commerce Versus Commentary: Gripe Sites, Parody, And The First Amendment In Cyberspace, Jacqueline D. Lipton

Washington University Law Review

The Global Online Freedom Bill of 2006 emphasizes the importance of freedom of speech on the Internet as a fundamental human right. However, the backbone of the World Wide Web, the Internet domain name system, is a poor example of protecting free speech, particularly in terms of the balance between speech and commercial trademark interests. This is apparent from the manner in which the legislature and the judiciary deal with cases involving Internet gripe sites and parody sites. The lack of a clear consensus on the protection of free speech in these contexts is troubling, and can be found in ...


Is It Science Yet?: Intelligent Design Creationism And The Constitution, Matthew J. Brauer, Barbara Forrest, Steven G. Gey Jan 2005

Is It Science Yet?: Intelligent Design Creationism And The Constitution, Matthew J. Brauer, Barbara Forrest, Steven G. Gey

Washington University Law Review

On several occasions during the last eighty years, states have attempted to either prohibit the teaching of evolution in public school science classes or counter the teaching of evolution with mandatory references to the religious doctrine of creationism. The Supreme Court struck down examples of the first two generations of these statutes, holding that they violated the Establishment Clause of the First Amendment. A third generation of creationist legislation is now being proposed. Under this new generation of creationism legislation, science teachers would present so-called “intelligent design” theory as an alternative to evolution. Intelligent design theory asserts that a supernatural ...


Injecting Fairness Into The Doctrine Of Forfeiture By Wrongdoing, Adam Sleeter Jan 2005

Injecting Fairness Into The Doctrine Of Forfeiture By Wrongdoing, Adam Sleeter

Washington University Law Review

No abstract provided.


“Banking” On Law Enforcement: Advocating A New Balancing Test For Dna Storage After United States V. Kincade, Sasha E. Polonsky Jan 2005

“Banking” On Law Enforcement: Advocating A New Balancing Test For Dna Storage After United States V. Kincade, Sasha E. Polonsky

Washington University Law Review

No abstract provided.


Fundamentalist Federalism: The Lack Of A Rational Basis In United States V. Morrison, Claire L. Huene Jan 2002

Fundamentalist Federalism: The Lack Of A Rational Basis In United States V. Morrison, Claire L. Huene

Washington University Journal of Law & Policy

No abstract provided.


The Bipartisan Campaign Reform Act, Political Parties, And The First Amendment: Lessons From Missouri, D. Bruce La Pierre Jan 2002

The Bipartisan Campaign Reform Act, Political Parties, And The First Amendment: Lessons From Missouri, D. Bruce La Pierre

Washington University Law Review

In Shrink Missouri Government PAC v. Nixon (Shrink Missouri) and FEC v. Colorado Republican Federal Campaign Committee (Colorado II), the Supreme Court tipped the First Amendment balance in favor of government regulation and against political speech and association. The Eighth Circuit’s recent decision upholding Missouri limits on campaign contributions made by state political parties to their candidates demonstrates how heavily the scales are weighted in favor of regulation. If protection of political speech really is at the core of the First Amendment, then the Court must put the burden of justifying campaign contribution limits—like the burden of ...


Retaking The Field: The Constitutional Constraints On Federal Legislation That Displaces Consent Decrees, Brian M. Hoffstadt Jan 1999

Retaking The Field: The Constitutional Constraints On Federal Legislation That Displaces Consent Decrees, Brian M. Hoffstadt

Washington University Law Review

Part I focuses on the provisions implicated when Congress eliminates or modifies the regulatory consent decrees of federal courts—the separation of powers guarantee, the Takings Clause, the Contracts Clause, and the Due Process Clause. Part II examines the Supremacy Clause and Tenth Amendment issues that potentially circumscribe congressional efforts to displace the decrees of state courts. Part III discusses the Equal Protection and Bill of Attainder Clause concerns that define the degree of latitude Congress enjoys when crafting its new regulatory scheme.