Law Commons^™

Dealing With Old Father William, Or Moving From Constitutional Text To Constitutional Doctrine: Progress Clause Review Of The Copyright Term Extension Act, Malla Pollack

Malla Pollack

The author suggests a textual approach to the choice of review standards for statutes enacted purusant to the so-called Intellectual Property Clause, which is more properly named the Progress Clause. Turning to text of the Constitution s relatively unproblematic because the Progress Clause contains unusually detailed constitutional text. Furthermore, what little the Court has stated about the fundamental goals of the Clause matches the author's reading of its text. Any approach based on the drafting or ratification discussions stumbles on the thinness of the record, as well as the record's possible unreliability. The text supports a standard of review higher …

What Is Congress Supposed To Promote? Defining ‘Progress” In Article I, Section 8, Clause 8 Of The U.S. Constitution, Or Introducing The Progress Clause, Malla Pollack

Malla Pollack

Empirical reserach into ratification-era uses of the word "progress" in the United States demonstrates that this word, as used in Article One, Section Eight, Clause Eight, means "spread," i.e. diffusion, distribution. To the extent that Congress chooses not to act under this clause, the default position is that each person in the United States has a property right not to be excluded from publicly accessible knowledge and technology. Congress has only a very limited power to create private quasi-property, i.e., rights to exclude the rest of the commoners. Congress may only create temporary individual rights for "authors" or "inventors" to …

Sprawl, Growth Boundaries And The Rehnquist Court , Michael E Lewyn

Michael E Lewyn

This article addresses the constitutionality and wisdom of Oregon's urban growth boundary (UGB) program. The article concludes that the program is constitutional under current precedent, and that (contrary to claims made by UGB critics) there is little evidence that the UGB has caused Oregon's runup in housing prices. On the other hand, UGB supporters may have exaggerated the UGB's positive environmental results.

The Multiple Unconstitutionality Of Business Method Patents: Common Sense, Congressional Choice, And Constitutional History, Malla Pollack

Malla Pollack

Business method patents are of sufficiently doubtful constitutionality that the Supreme Court should either render them void or, at the least, require a clear Congressional fact finding that they are likely to promote the "Progress of . . . [the] Useful Arts." Four separate arguments support this conclusion. First, common sense shows that patents on business methods do not promote progress. Second, Congress has not considered whether business method patents are likely to promote progress. Third, "useful arts," as that phrase is used in the Constitution, does not include mere commerce. Lastly, the historical background of the Intellectual Property Clause …

The Metes And Bounds Of State Sovereign Immunity, Scott Dodson

Scott Dodson

What are the parameters of state sovereign immunity? The Court has made clear that certain provisions of Article I contain no authority for overriding state sovereign immunity, while at least one other provision, the Fourteenth Amendment, permits Congress to abrogate the states' sovereign immunity. How is this constitutional line drawn? It is temporally bound? In other words, are only certain Amendments enacted after the Eleventh Amendment free from absolute subservience to state sovereign immunity? Or, does it divide the original Constitution and its Amendments, meaning that state sovereign immunity permeates the original Constitution but does not infiltrate certain Amendments, even …

Until Life Support Do Us Part: A Spouse's Limited Ability To Terminate Life Support For An Incompetent Spouse With No Hope Of Recovery, Marybeth Herald

Marybeth Herald

This paper deals with a MCS patient in California - a case that highlights our uncertain steps into state regulation of the end of life. After a 1993 automobile accident, 42-year-old Robert Wendland fell into the classification of a MCS with no hope of recovery. He had made no advance directives as to his health care. His wife of 20 years sought to withhold artificial feeding and hydration after three surgeries to replace Robert's feeding tube. The 20-member ethics committee at the hospital, Robert and Rose's three children (two were of college age), and Robert's brother, all supported her decision. …

Progressive Race Blindness: Individual Identity, Group Politics, And Reform, Darren Hutchinson

Darren L Hutchinson

Critical Race Theorists advance race consciousness as a positive instrument for political and legal reform. A growing body of works by left-identified scholars, however, challenges this traditional progressive stance toward race consciousness.

After summarizing the contours of this budding literature, this Article criticizes the "progressive race blindness" scholarship on several grounds and offers an alternative approach to race consciousness that balances skepticism towards the naturalness of race with a healthy appreciation of the realities of racial subjugation and identity.

Revelations Of Pre-September 11 Warnings Require Patriot Act Repeal, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.

Extraterritoriality And Political Heterogeneity In American Federalism, Mark D. Rosen

Mark D. Rosen

It is commonly understood that as a matter of federal law, states' substantive policies may diverge in respect of those matters that are not violative of the United States Constitution. As a practical matter, however, what degree of political heterogeneity among states is possible vis-a-vis substantive policies that are not unconstitutional? The answer to the question turns in large part on whether states, if they so choose, can regulate their citizens even when they are out-of-state. If they cannot, citizens can bypass their home state’s laws by simply traveling to a more legally permissive state to do there what is …

Entrance, Voice And Exit: The Constitutional Bounds Of The Right Of Association, Evelyn Brody

Evelyn Brody

Despite the central role of organized groups as intermediary bodies in American society, the constitutional right of association is surprisingly recent and limited. As the Supreme Court struggles to define the bounds of 'the' freedom of association, it is time to take a critical look at a difficult set of questions. First, many private organizations engage in various types of selection criteria, but what subjects the Jaycees to State anti-discrimination laws but insulates the Boy Scouts of America? Second, the typical American nonprofit organization is a corporation that lacks both shareholders and members, so are there any 'associates' whose rights …

"Illiberal" Societal Cultures, Liberalism, And American Constitutionalism, Mark Rosen

Mark D. Rosen

No abstract provided.

The Radical Possibility Of Limited Community-Based Interpretation Of The Constitution, Mark D. Rosen

Mark D. Rosen

This Article explores a radical method under the U.S. Constitution for devolving extraordinary political power to select communities. The United States Constitution places limitations on the exercise of public power by sub-federal polities. When insular groups seek to exercise public power to govern themselves, however, there may be special constitutional limitations that are operative - doctrines that afford their local governments more options in the exercise of power than ordinary state and local governments enjoy. The Article shows that Congress may grant the communities the authority to construe designated provisions of the United States Constitution insofar as the provisions apply …

Spheres Of Autonomy: Reforming The Content Neutrality Doctrine In First Amendment Jurisprudence, Steven J. Heyman

Steven J. Heyman

In recent decades, the doctrine of content neutrality has become the cornerstone of First Amendment jurisprudence. In the leading case of Police Department v. Mosley (1972), the Supreme Court declared that speech may "never" be regulated because of its content, for that would be "the essence of . . . censorship." If this view were taken literally, however, it would disable government from regulating speech even when necessary to prevent serious injury to individuals or society. In response to this concern, the Court has carved out several exceptions to the neutrality doctrine. Yet the Justices have never succeeded in explaining …

Do “Creatures Of The State” Have Constitutional Rights?: Standing For Municipalities To Assert Procedural Due Process Claims Against The State, Michael Anthony Lawrence

Michael Anthony Lawrence

Conventional wisdom holds that a municipal corporation receives no protection from the equal protection and due process clauses as against its creating state. The reasoning is that municipal corporations, as mere subunits or instrumentalities of the state, are simply ineligible for such constitutional protections.

This article argues that municipal corporations, as "persons" under the Constitution, do in fact have standing to assert procedural due process claims against their creating states in cases not involving substantive matters of the state’s internal political organization. Judicial recognition of this principle would advance important values of fairness and doctrinal consistency in state-local relations, and …

New Complexity Theories: From Theoretical Innovation To Doctrinal Reform, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

New Dimensions Of The Section 5 Enforcement Power, David Day

David Day

No abstract provided.

A Study In Judicial Sleight Of Hand: Did Geier V. American Honda Motor Co. Eradicate The Presumption Against Preemption?, Susan Raeker-Jordan

Susan Raeker-Jordan

No abstract provided.

Deshaney’S Legacy In Foster Care And Public School Settings, Mary Kate Kearney

Mary Kate Kearney

No abstract provided.

Magistrate Judges, Article Iii, And The Power To Preside Over Federal Prisoner Section 2255 Proceedings, Ira P. Robbins

Ira P. Robbins

Zoning, Taking, & Dealing: The Problems And Promise Of Bargaining In Land Use Planning, Erin Ryan

Erin Ryan

Municipal land use bargaining may imply as many problems as it heralds promise, but it is widely acknowleged as the universal language of land use planning. Planners and scholars agree that public-private negotiation plays a central role in the vast majority of local land use decision-making. At least in part, this is a result of the peculiar attributes of the resource at issue. Land is, perhaps, the ultimate nonfungible. Each parcel of land possesses unique characteristics not only in its physical attributes, but also by virtue of its location, and its proximity to other unique parcels. Moreover, land uses implicate …