Law Commons^™

Assessing The New Judicial Minimalism, Christopher J. Peters

All Faculty Scholarship

In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I …

The Application Of Product Liability Principles To Publishers Of Violent Or Sexually Explicit Material, Richard C. Ausness

Law Faculty Scholarly Articles

There have been a number of tragic incidents during the past few years in which mentally unstable teenagers have carried guns into school and shot teachers and fellow students. These schoolyard killings have generated an intense debate about the problem of violence in our society. Some social commentators have attributed teenage violence to the widespread availability of firearms, while others blame parental neglect, lack of discipline in the schools, or the declining influence of religion and morality in contemporary culture. However, another source of concern is the popular media, which stands accused of purveying sex and violence on a massive …

The Constitutional Implications Of Human Cloning, Elizabeth Price Foley

Faculty Publications

Given the theoretical inevitability of human cloning, this Article attempts to fill a current intellectual void by providing an analysis of the most significant legal implications of cloning human beings. Part II sets forth the basic science behind cloning and how cloning differs from other, non-traditional forms of procreation such as in vitro fertilization and artificial insemination. Part III discusses the most commonly feared “science fiction” abuses associated with human cloning and current laws that may prevent such abuses from occurring. Part IV discusses the possible constitutional impediments to banning human cloning, including the First Amendment, the procreational liberty interest …

Education And The Constitution: Shaping Each Other And The Next Century, Elizabeth Reilly

Con Law Center Articles and Publications

Thinking about the interaction between the Constitution and education reveals that they are deeply interconnected, at profound levels of interdependence and complexity. Those connections are often strikingly visible, but are sometimes quite subtle.

A fundamental interdependence was formed with the decision to formulate our governmental structure as a democratic republic. The Constitution created the necessity for adequate public education to prepare the citizenry to exercise the role of self-government. An educated voting public underpins a successful democratic structure, as was explicitly recognized in Brown v. Board of Education, in which the Court acknowledged:

the importance of education to our democratic …

Simultaneous Copyright And Trade Secret Claims: Can The Copyright Misuse Defense Prevent Constitutional Doublethink?, Ralph D. Clifford

Faculty Publications

As the Constitution authorizes Congress to grant copyrights, it subjects the power to a public purpose requirement. Any monopoly Congress grants must be for the purpose of “promot[ing] the progress of science and useful arts.” But one result of Congress enacting the 1976 Act is a potential conflict between the Act and this public purpose requirement. An owner of intellectual property may believe that both copyright law – which mandates disclosure – and trade secret law – which mandates secrecy – can be used simultaneously. To believe that disclosure and secrecy can coexist is doublethink as both cannot be true. …

Due Process And Fundamental Rights, Martin A. Schwartz

Scholarly Works

No abstract provided.

Towards A More Perfect Union: Some Thoughts On Amending The Constitution, Thomas E. Baker

Faculty Publications

No abstract provided.

A Review Essay: Limits Of Gaylaw, Dale Carpenter

Faculty Journal Articles and Book Chapters

Part of Professor William Eskridge's mission in Gaylaw (Gaylaw: Challenging the Apartheid of the Closet by William N. Eskridge, Jr., Harvard University Press, 1999) is to describe the historical development of the complex legal and, to some extent the cultural, landscape for gays. (pp. 17-137) Though not much of Eskridge's presentation of the history of American law's treatment of gays draws from original research, its synthesis of the available secondary sources is a useful contribution and will likely become a staple of classes treating the subject.

The larger part of Gaylaw is the book's greatest challenge and the place where …

The Tenth Amendment Among The Shadows: On Reading The Constitution In Plato's Cave, Jay S. Bybee

Scholarly Works

In Plato's Allegory of the Cave, he describes a cavernous chamber in which men are imprisoned. Although a large fire lights the cave, the prisoners cannot see the light source. Instead, they can only make out figures that dance and parade in front of them illuminated by the fire. The prisoners cannot even see the figures directly, only their shadows. Everything that the prisoners know about reality they have learned from the distorted shapes of the shadows dancing about the cave's walls. Socrates wonders, if a prisoner were suddenly freed and could see the objects themselves and not merely their …

Common Ground: Robert Jackson, Antonin Scalia, And A Power Theory Of The First Amendment, Jay S. Bybee

Scholarly Works

There are few cases that contrast more starkly than Justice Robert Jackson's opinion for the Court in West Virginia State Board of Education v. Barnette and Justice Antonin Scalia's majority opinion in Employment Division v. Smith. Although we praise Barnette for its soaring defense of the Free Speech Clause and excoriate Smith for its crabbed reading of the Free Exercise Clause, in fact, Justice Jackson and Justice Scalia are not so far apart. When we read Barnette and Smith in context, we will find that Justice Jackson and Justice Scalia treaded common ground with respect to the First Amendment. …

United States Supreme Court: 2000 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

Toward The Restorative Constitution: A Restorative Justice Critique Of Anti-Gang Public Nuisance Injunctions, Joan W. Howarth

Scholarly Works

Gang members from elsewhere congregated on lawns, on sidewalks, and in front of apartment complexes at all hours. They displayed a casual contempt for notions of law, order, and decency -- openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents' cars. San Jose prosecutors responded by obtaining and enforcing a broad injunction against the gangs and their members, based on the finding that the gangs' activities constituted a public nuisance. California prosecutors have sought such anti-gang public nuisance injunctions since 1987. Their constitutionality was in doubt for ten years …

Ninth Amendment Adjudication: An Alternative To Substantive Due Process Analysis Of Personal Autonomy Rights, Mark C. Niles

Faculty Publications

Notwithstanding decades of significant legal scholarship focusing on the Ninth Amendment to the U.S. Constitution, a large portion of the practicing legal community, and even a substantial percentage of legal scholars, are unfamiliar with the provision. The primary reason for this phenomenon is the striking absence of an identifiable body of Ninth Amendment adjudication. In this Article, Mark Niles focuses on this phenomenon and endeavors to develop an interpretative theory of the amendment upon which an adjudicative role can be founded.

In Part I of this Article, Niles outlines the traditional judicial treatment of the Ninth Amendment, or more precisely, …

How To Apply The Religious Freedom Restoration Act To Federal Law Without Violating The Constitution, Gregory P. Magarian

Scholarship@WashULaw

Learned commentators have called the Religious Freedom Restoration Act of 1993 ("RFRA" or "the Act") "perhaps the most unconstitutional statute in the history of the nation" and "the most egregious violation of the separation of powers doctrine in American constitutional history." In the 1997 case of City of Boerne v. Flores, the Supreme Court struck down the Act in its applications to state and local governments, declaring that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." The Act's applications to federal law, however, survived Boerne, which means that plaintiffs with religious freedom claims against …

Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben

Faculty Publications

Under the traditional bipolar model, civil dispute resolution is generally divided into two spheres: trial, which is public in nature and therefore subject to constitutional due process, and alternative dispute resolution (ADR), which is private in nature and therefore not subject to such constraints. In this article, Professor Richard Reuben proposes a unitary understanding of public civil dispute resolution, one that recognizes that ADR is often energized by state action and thus is constitutionally required to comply with minimal but meaningful due process standards. Depending upon the process, such standards might include the right to an impartial forum, the right …