Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 29 of 29

Full-Text Articles in Law

Inside Voices: Protecting The Student-Critic In Public Schools, Josie F. Brown Dec 2012

Inside Voices: Protecting The Student-Critic In Public Schools, Josie F. Brown

Faculty Publications

First Amendment doctrine acknowledges the constructive potential of citizens’ criticism of public officials and governmental policies by offering such speech vigilant protection. However, when students speak out about perceived injustice or dysfunction in their public schools, teachers and administrators too often react by squelching and even punishing student-critics. To counteract school officials’ reflexively repressive responses to student protest and petition activities, this Article explains why the faithful performance of public schools’ responsibility to prepare students for constitutional citizenship demands the adoption of a more receptive and respectful attitude toward student dissent. After documenting how both educators and courts have mistakenly ...


Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck Oct 2012

Defining Religion Down: Hasanna-Tabor, Martinez, And The U.S. Supreme Court, Carl H. Esbeck

Faculty Publications

While two recent Supreme Court cases on religious freedom appear sharply at odds, in one material respect they harmonize around an understanding that religion is fully protected only when exercised in private. CLS v. Martinez involved Hastings College of Law. Hastings' regulation of extracurricular organizations was unusual in requiring that any student can join an organization. This all-comers rule had a discriminatory impact on organizations with exclusionary memberships, such as the Christian Legal Society (CLS) which required subscribing to a statement of faith and conduct. The Court acknowledged the discriminatory effect, but said that the Free Speech Clause protects speech ...


Texting While Driving Meets The Fourth Amendment: Deterring Both Texting And Warrantless Cell Phone Searches, Adam M. Gershowitz Oct 2012

Texting While Driving Meets The Fourth Amendment: Deterring Both Texting And Warrantless Cell Phone Searches, Adam M. Gershowitz

Faculty Publications

Recent laws criminalizing texting while driving are under-inclusive, ambiguous, and impose light punishments that are unlikely to deter. At the same time, the laws empower police to conduct warrantless searches of drivers’ cell phones. Texting while driving is dangerous and should be punished with stiff fines, possible jail time, license suspensions, and interlock devices that prevent use of phones while driving. However, more severe punishment will not eliminate police authority to conduct warrantless cell phone searches. This Article therefore proposes that legislatures allow drivers to immediately confess to texting while driving in exchange for avoiding a search of their phones ...


Who Decides On Liberty?, Thomas P. Crocker Jul 2012

Who Decides On Liberty?, Thomas P. Crocker

Faculty Publications

Whether approached as a matter of executive discretion, judicial role, or individual rights, questions about security are never far removed from questions about liberty. Tradeoffs between liberty and security often seem unavoidable. Defenders of unbounded executive power argue that security relies on experts to whom citizens and courts alike must defer. But, if the tradeoff between security and liberty is to be a real weighing of the risks, costs, benefits, burdens, and consequences of various policy decisions, then who has the necessary expertise to decide on liberty? After all, to make decisions about the appropriate balance between security and liberty ...


Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton Jul 2012

Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton

Faculty Publications

No abstract provided.


The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski Jun 2012

The Supreme Court’S Regulation Of Civil Procedure: Lessons From Administrative Law, Lumen N. Mulligan, Glen Staszewski

Faculty Publications

In this Article, we argue that the U.S. Supreme Court should route most Federal Rules of Civil Procedure issues through the notice-and-comment rulemaking process of the Civil Rules Advisory Committee instead of issuing judgments in adjudications, unless the Court can resolve the case solely through the deployment of traditional tools of statutory interpretation. While we are not the first to express a preference for rulemaking on civil procedure issues, we advance the position in four significant ways. First, we argue that the Supreme Court in the civil procedure arena is vested with powers analogous to most administrative agencies. Second ...


A (Modest) Separation Of Powers Success Story, Tara Leigh Grove Apr 2012

A (Modest) Separation Of Powers Success Story, Tara Leigh Grove

Faculty Publications

No abstract provided.


The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash Apr 2012

The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash

Faculty Publications

Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status ...


The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove Mar 2012

The Article Ii Safeguards Of Federal Jurisdiction, Tara Leigh Grove

Faculty Publications

Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. This Article seeks to fill that void. Drawing on two strands of social science research, the Article argues that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even ...


Lies, Honor, And The Government’S Good Name: Seditious Libel And The Stolen Valor Act, Christina E. Wells Jan 2012

Lies, Honor, And The Government’S Good Name: Seditious Libel And The Stolen Valor Act, Christina E. Wells

Faculty Publications

Later this term the Supreme Court will decide the constitutionality of the Stolen Valor Act, which punishes anyone who falsely represents themselves to have been awarded certain military medals. Although the Court declared the crime of seditious libel inconsistent with the First Amendment long ago, the Act revives something very like that crime. The connection between the two crimes is not immediately obvious but the government’s underlying reasoning is nearly identical in both. Officials justified seditious libel prosecutions by claiming, without proof, that criticism of the government undermined its authority and reduced the public’s respect for it, ultimately ...


Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts On Justice Jackson And Brown, John Q. Barrett, Brad Snyder Jan 2012

Rehnquist's Missing Letter: A Former Law Clerk's 1955 Thoughts On Justice Jackson And Brown, John Q. Barrett, Brad Snyder

Faculty Publications

"I think that Plessy v. Ferguson was right and should be reaffirmed." That's what Supreme Court law clerk William H. Rehnquist wrote privately in December 1952 to his boss, Justice Robert H. Jackson. When the memorandum was made public in 1971 and Rehnquist's Supreme Court confirmation hung in the balance, he claimed that the memorandum reflected Jackson's views, not Rehnquist's. Rehnquist was confirmed, but his explanation triggered charges that he had lied and smeared the memory of one of the Court's most revered justices. This Essay analyzes a newly discovered document—a letter Rehnquist wrote ...


The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar Jan 2012

The Anti-Messiness Principle In Statutory Interpretation, Anita S. Krishnakumar

Faculty Publications

Many of the Supreme Court's statutory interpretation opinions reflect a juisprudential aversion to interpreting statutes in a manner that will prove "messy" for implementing courts to administer. Yet the practice of construing statutes to avoid "messiness" has gone largely unnoticed in the statutory interpretation literature. This Article seeks to illuminate the Court's use of "anti-messiness" arguments to interpret statutes and to bring theoretical attention to the principle of "messiness" avoidance. The Article begins by defining the concept of anti-messiness and providing a typology of common anti-messiness arguments used by the Supreme Court. It then considers some dangers inherent ...


A Stubborn Legacy: The Overwhelming Importance Of Race In Jury Selection In 173 Post-Batson North Carolina Capital Trials, Catherine M. Grosso, Barbara O'Brien Jan 2012

A Stubborn Legacy: The Overwhelming Importance Of Race In Jury Selection In 173 Post-Batson North Carolina Capital Trials, Catherine M. Grosso, Barbara O'Brien

Faculty Publications

Among those who laud its mission, it seems that the only people not disappointed in Batson are those who never expected it to work in the first place. Scholars, judges, and practitioners have criticized the decision for its failure to curb the role of racial stereotypes in jury election. Likewise, previous research in North Carolina has suggested both that race continues to play a role in jury selection and that courts are reluctant to enforce Batson rigorously. Recently, however, the North Carolina General Assembly passed legislation aimed at curing this defect by providing trial courts a unique opportunity to consider ...


Contextualizing Disclosure's Effects: Wikileaks, Balancing And The First Amendment, Christina E. Wells Jan 2012

Contextualizing Disclosure's Effects: Wikileaks, Balancing And The First Amendment, Christina E. Wells

Faculty Publications

This essay responds to Professor Fenster’s article in the Iowa Law Review, Disclosure’s Effects: WikiLeaks and Transparency, assessing the effects of the recent WikiLeaks disclosures. The essay agrees with many of Professor Fenster’s conclusions regarding the promise and peril of those disclosures, especially his concern regarding the problematic balancing approaches used to assess the likely impact when confidential information is revealed. It specifically elaborates on courts’ current application of the Espionage Act, a criminal law likely to be applied to the WikiLeaks disclosures, and the implications of that deferential application for WikiLeaks, Julian Assange and journalists in ...


Falsely Shouting Fire In A Global Theater: Emerging Complexities Of Transborder Expression, Timothy Zick Jan 2012

Falsely Shouting Fire In A Global Theater: Emerging Complexities Of Transborder Expression, Timothy Zick

Faculty Publications

We have entered an era in which potentially harmful expression can be distributed around the world in an instant. In the emerging global theater, speakers and audiences are connected through new and proliferating media; communicative space and time are compressed to an extraordinary degree; domestic expression can implicate national security and foreign affairs concerns; and a new model of global information dissemination is developing in which speakers are sometimes located beyond the jurisdiction of nations that may be harmed by their communications and disclosures.

This Article examines the First Amendment complexities associated with the dissemination of potentially harmful information in ...


Recovering The Assembly Clause, Timothy Zick Jan 2012

Recovering The Assembly Clause, Timothy Zick

Faculty Publications

No abstract provided.


The Individual Mandate And The Taxing Power, Erik M. Jensen Jan 2012

The Individual Mandate And The Taxing Power, Erik M. Jensen

Faculty Publications

This article, prepared for a symposium at the Salmon P. Chase College of Law, Northern Kentucky University, considers whether the Taxing Clause provides an alternative constitutional basis, as some have recently argued, for the individual mandate in the Patient Protection and Affordable Care Act of 21 - the requirement, going into effect in 214, that most individuals acquire satisfactory health insurance or pay a penalty. The article concludes that the Taxing Clause arguments are misguided. At best, the Clause can provide authority for the penalty, not for the mandate as a whole. Furthermore, the article questions whether the penalty will be ...


Balancing Privacy, Autonomy, And Scientific Needs In Electronic Health Records Research, Sharona Hoffman, Andy Podgurski Jan 2012

Balancing Privacy, Autonomy, And Scientific Needs In Electronic Health Records Research, Sharona Hoffman, Andy Podgurski

Faculty Publications

The ongoing transition from paper medical files to electronic health records will provide unprecedented amounts of data for biomedical research, with the potential to catalyze significant advances in medical knowledge. But this potential can be fully realized only if the data available to researchers is representative of the patient population as a whole. Thus, allowing individual patients to exclude their health information, in keeping with traditional notions of informed consent, may compromise the research enterprise and the medical benefits it produces.

This Article analyzes the tension between realizing societal benefits from medical research and granting individual preferences for privacy. It ...


Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. Mcmunigal Jan 2012

Does The Lawyer Make A Difference? Public Defender V. Appointed Counsel, Peter A. Joy, Kevin C. Mcmunigal

Faculty Publications

A recent study found that poor criminal defendants in Philadelphia who were represented by court-appointed private lawyers were more often found guilty and sentenced to more time in prison than similarly situated defendants represented by public defenders. In this column, we review the details of the study, its findings, and its ethical and constitutional implications.


What Is The Meaning Of Health? Constitutional Implications Of Defining 'Medical Necessity' And 'Essential Health Benefits' Under The Affordable Care Act, B. Jessie Hill Jan 2012

What Is The Meaning Of Health? Constitutional Implications Of Defining 'Medical Necessity' And 'Essential Health Benefits' Under The Affordable Care Act, B. Jessie Hill

Faculty Publications

One consequence of the Affordable Care Act (ACA) is that government will come to play a more extensive role in healthcare decision-making by individuals and their providers. The ACA does not directly regulate access to health services, but by means of a system of funding, mandates, and penalties, it essentially requires many employers to provide, and most individuals to carry, a certain minimum level of health insurance. Governmental decisions about which medical services qualify as medically necessary and appropriate may take on a new and greater importance, because government officials will be required to decide what sorts of procedures must ...


Law Review Symposium 2011: Baker V. Carr After 50 Years: Appraising The Reapportionment Revolution: Introduction, Jonathan L. Entin Jan 2012

Law Review Symposium 2011: Baker V. Carr After 50 Years: Appraising The Reapportionment Revolution: Introduction, Jonathan L. Entin

Faculty Publications

Introduction to Law Review Symposium 2011: Baker V. Carr after 50 Years: Appraising the Reapportionment Revolution, Cleveland, OH


From Smith To Smickle: The Charter's Minimal Impact On Mandatory Minimum Sentences, Debra Parkes Jan 2012

From Smith To Smickle: The Charter's Minimal Impact On Mandatory Minimum Sentences, Debra Parkes

Faculty Publications

This paper attempts to assess the impact that the Canadian Charter of Rights and Freedoms has had, and may have in the near future, on mandatory minimum sentences and their legislated proliferation. To answer those questions, the paper first briefly reviews the Supreme Court of Canada case law on the constitutionality of mandatory minimum sentences. The next two sections will outline the approach taken in the recent Smickle decision in the Ontario Superior Court of Justice before moving on to argue that courts should subject the purported goals, justifications and implications of mandatory minimum sentences to a more searching form ...


The 'Great Writ' Reinvigorated? Habeas Corpus In Contemporary Canada, Debra Parkes Jan 2012

The 'Great Writ' Reinvigorated? Habeas Corpus In Contemporary Canada, Debra Parkes

Faculty Publications

This short prelude to Professor James Oldham’s 2nd Annual DeLloyd J Guth Visiting Lecture in Legal History, “Habeas Corpus, Legal History and Guantanamo Bay,” discusses some of ways that the writ of habeas corpus plays an important role in promoting access to justice and protecting basic liberty interests in contemporary Canadian law. The focus will be on developments in the law since the Canadian Charter of Rights and Freedoms was enacted, touching on two important features of a modern doctrine of habeas corpus, namely flexibility and gap-filling, both of which Professor Oldham also develops in his essay.


Prescriptive Jurisdiction, Adjudicative Jurisdiction, And The Ministerial Exemption, Howard M. Wasserman Jan 2012

Prescriptive Jurisdiction, Adjudicative Jurisdiction, And The Ministerial Exemption, Howard M. Wasserman

Faculty Publications

No abstract provided.


Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman Jan 2012

Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman

Faculty Publications

No abstract provided.


The Constitution Of Cádiz In Florida, M C. Mirow Jan 2012

The Constitution Of Cádiz In Florida, M C. Mirow

Faculty Publications

The article explores the vibrant constitutional community that existed in St. Augustine and the province of East Florida in the final decade of Spanish control of the area. Based on relatively unexplored primary sources, it reveals a great deal of unknown information about the importance of the Constitution in Florida immediately before the territory was transferred to the United States. The article provides full description of the Constitution's promulgation in 1812 and a second promulgation of the Constitution in 1820 (something unknown in the general literature). It also addresses the construction of the St. Augustine monument to the Constitution ...


A Modest Experiment In Pedagogy: Lessons On Comparative Constitutional Law, Thomas E. Baker Jan 2012

A Modest Experiment In Pedagogy: Lessons On Comparative Constitutional Law, Thomas E. Baker

Faculty Publications

This article describes how the author integrated comparative and international law lessons into a first year course on U.S. Constitutional Law. This version of a paper originally submitted to the International Association of Law Schools Conference on Comparative Constitutional Law in 2009, has been enriched by adding citations and references to relevant papers of other conference participants. The article includes a review of the literature on teaching comparative constitutional law, basic pedagogical theory, a bibliography, some practical advice and a set of four lessons on the themes of judicial review, transnational interpretation, affirmative action and reproductive rights, complete with ...


Statistical Proof Of Racial Discrimination In The Use Of Peremptory Challenges: The Impact And Promise Of The Miller-El Line Of Cases As Reflected In The Experience Of One Philadelphia Capital Case, David C. Baldus, Catherine M. Grosso, Robert Dunham, George Woodworth, Richard Newell Jan 2012

Statistical Proof Of Racial Discrimination In The Use Of Peremptory Challenges: The Impact And Promise Of The Miller-El Line Of Cases As Reflected In The Experience Of One Philadelphia Capital Case, David C. Baldus, Catherine M. Grosso, Robert Dunham, George Woodworth, Richard Newell

Faculty Publications

The jurisprudence that has developed in the last twenty-five years under Batson v. Kentucky may be fairly described as indeterminate, unprincipled, and generally ineffective. Scholarly literature points to a variety of reasons for this state of affairs. This Article focuses on one source of the problem— the lack of clarity in the law concerning the evidentiary framework (methodology) needed for a reliable analysis of statistical evidence in Batson cases. United States Supreme Court decisions beginning with Miller-El v. Cockrell (2003) and continuing through Miller-El v. Dretke (2005), Johnson v. California (2005), and Snyder v. Louisiana (2008) clarified a number of ...


The Ninth Amendment In Congress, Brian C. Kalt Jan 2012

The Ninth Amendment In Congress, Brian C. Kalt

Faculty Publications

No abstract provided.