Law Commons^™

The Unconstitutionality Of Underfunded Public Defender Systems, Braden Daniels

Senior Honors Theses

When a defendant is ineffectively represented by a public defender due to an underfunded public defender system, a defendant whose public defender provides him only cursory representation is entitled to a new trial only if blatantly innocent. The U.S. Supreme Court should follow its precedent and declare systemically underfunded public defender systems unconstitutional, with cases meriting reversal when the underfunding is to blame for unreasonable attorney errors, regardless of prejudice. This stems logically from the Court’s holdings in Gideon v. Wainwright, Strickland v. Washington, and United States v. Cronic. Many have argued for the reversal or modification …

Fifty More Years Of Ineffable Quo? Workers’ Compensation And The Right To Personal Security, Michael C. Duff

All Faculty Scholarship

During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its …

The Constitutionality Of Abortion, John M. Nerney

Senior Honors Theses

The purpose of this study is to determine whether abortion is constitutional under the Fourth Amendment. Essentially, the Supreme Court used what is known as the “right to privacy” which they created using the First, Fourth, Fifth and Ninth Amendments finding penumbras of the Bill of Rights, and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. This study addresses the history of the right to privacy and tries to show that the Supreme Court stretched the meaning of these Amendments beyond what the founders of the Constitution intended. This study analyzed the application of …

Is Obamacare Really Unconstitutional?, Nicholas Bagley

Articles

On December 18, 2019, just 3 days after the close of open enrollment on the exchanges and on the same day the House of Representatives impeached President Donald Trump, a conservative appeals court handed the President a major victory in his crusade against the Affordable Care Act (ACA). Over a stern dissent, the U.S. Court of Appeals for the Fifth Circuit declared that the law’s individual mandate is unconstitutional and that the entire rest of the law might therefore be invalid.

Does The Attorney General Have A Duty To Defend Her Legislature’S Statutes? A Comment On The Reference Re Genetic Non-Discrimination Act, Andrew Martin

Articles, Book Chapters, & Popular Press

The Reference Re Genetic Non-Discrimination Act was unusual because the Attorney General for Canada argued that federal legislation was unconstitutional. In this comment, I explore the implications of this choice for the role of the Attorney General and her relationship with Parliament. I argue that the Attorney General has a duty not to defend legislation, including legislation that began as a private member’s bill, that she reasonably believes to be unconstitutional – and that if Parliament wants to defend such legislation, it should do so itself instead of relying on the Attorney General. If Parliament does not do so, the …

How The Ada Regulates And Restricts Solitary Confinement For People With Mental Disabilities, Margo Schlanger

Other Publications

In a landmark decision two decades ago, United States District Judge Thelton Henderson emphasized the toxic effects of solitary confinement for inmates with mental illness. In Madrid v. Gomez, a case about California’s Pelican Bay prison, Judge Henderson wrote that isolated conditions in the Special Housing Unit, or SHU, while not amounting to cruel and unusual punishment for all prisoners, were unconstitutional for those “at a particularly high risk for suffering very serious or severe injury to their mental health . . . .” Vulnerable prisoners included those with pre-existing mental illness, intellectual disabilities, and brain damage. Henderson concluded that …

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

Enacted Legislative Findings And The Deference Problem, Daniel A. Crane

Articles

The constitutionality of federal legislation sometimes turns on the presence and sufficiency of congressional findings of predicate facts, such as the effects of conduct on interstate commerce, state discrimination justifying the abrogation of sovereign immunity, or market failures justifying intrusions on free speech. Sometimes a congressional committee makes these findings in legislative history. Other times, Congress recites its findings in a statutory preamble, thus enacting its findings as law. Surprisingly, the Supreme Court has not distinguished between enacted and unenacted findings in deciding how much deference to accord congressional findings. This is striking because the difference between enactedness and unenactedness …

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but …

Election Law's Lochnerian Turn, Ellen D. Katz

Articles

This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.

The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti

Articles

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle …

Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, Gary S. Lawson, David Kopel

Faculty Scholarship

In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate.

The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must …

The Mandatory Death Penalty And A Sparsely Worded Constitution, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

It was not unexpected that the Singapore Court of Appeal would reaffirm the constitutionality of the mandatory death penalty for certain forms of drug trafficking in Yong Vui Kong v Public Prosecutor [2010] 3 S.L.R 489. ... The appellant made submissions based on Articles 9(1) and 12(1) of the Constitution, which respectively guarantee rights to life and personal liberty, and to equality before the law and equal protection of the law. This note examines aspects of the Article 9(1) arguments.

Partial Unconstitutionality, Kevin C. Walsh

Law Faculty Publications

Courts often hold legislation unconstitutional, but nearly always only part of the statute offends. The problem of partial unconstitutionality is therefore pervasive and persistent. Yet the exclusive doctrinal tool for dealing with this problem--severability doctrine-is deeply flawed. To make matters worse, severability doctrine is purportedly necessary for any workable system of judicial review. The accepted view is that severance saves: A court faced with a partially unconstitutional law must sever and excise the unconstitutional provisions or applications so that the constitutional remainder can be enforced going forward. Absent severance and excision, a law must fall in its entirety. This excision-based …

An Uncertain Future For Section 5 Of The Voting Rights Act: The Need For A Revised Bailout System, Christopher B. Seaman

Scholarly Articles

In Northwest Austin Municipal Utility District No. 1 v. Holder ("NAMUDNO"), 129 S. Ct. 2504 (2009), the Supreme Court declined to decide one of last Term's most prominent issues: the constitutionality of the 2006 renewal of Section 5 of the Voting Rights Act. Instead, the Court adopted an unexpected statutory construction permitting the plaintiff to seek an exemption called "bailout" from continued coverage under this provision. But even though the Court avoided directly ruling on its constitutionality, NAMUDNO left little doubt that Section 5 remains on shaky constitutional ground. A revised bailout system is likely the best approach for placing …

"Failure To Pay Any Poll Tax Or Other Tax": The Constitutionality Of Tax Felon Disenfranchisement, Sloan G. Speck

Publications

If the government convicts a citizen under the tax evasion provisions of the Internal Revenue Code, some state disenfranchisement laws preclude that citizen — now a felon — from voting. In this sense, the right to vote depends on the payment of federal income taxes. The Constitution's Twenty-Fourth Amendment, however, guarantees that the federal franchise “shall not be denied or abridged... by reason of failure to pay any poll tax or other tax.” If “other tax” includes income taxes, the text of the Twenty-fourth Amendment appears to prohibit the disenfranchisement of citizens convicted of tax felonies. This Comment argues that …

The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control, Ahmed A. White

Publications

No abstract provided.

Defining The Constitutional Question In Partisan Gerrymandering, Richard Briffault

Faculty Scholarship

Vieth v. Jubelirer is a significant setback to efforts to challenge partisan gerrymandering in court. Four members of the Supreme Court repudiated Davis v. Bandemer and concluded that partisan gerrymanders present a nonjusticiable question, while the fifth, Justice Kennedy, determined that the Court ought to "refrain from intervention" at this time, although he left open the hope that gerrymandering might become justiciable if the right standard of proving a gerrymander is ever found. Yet, strikingly, all nine members of the Supreme Court agreed that, justiciable or not, partisan gerrymanders do raise a constitutional question and some partisan gerrymanders are unconstitutional. …

The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca

Law Faculty Scholarly Articles

Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and …

Virtual Equality As Constitutional Reality: An Introduction, Berta E. Hernández-Truyol

UF Law Faculty Publications

Equality is, to be sure, an elusive concept. More often than not, we find it much easier to describe what is unequal (we know it when we see it) than affirmatively to explain equality. This definitional dilemma rises to new heights when courts, in exercising their interpretive legal functions, have to provide all persons the equal protection of the laws."

Over the course of American history and jurisprudence, the Supreme Court itself has a checkered past when it comes to judicial application of rights to equality. In the beginning, there was slavery - the quintessence of unequality - and the …

The Art Of Line Drawing: The Establishment Clause And Public Aid To Religiously Affiliated Child Care, Elizabeth Samuels

All Faculty Scholarship

The Article analyzes both the meaning and the constitutionality of Child Care Development Block Grant's church-and-state-related provisions in light of existing Supreme Court Establishment Clause jurisprudence. The CCDBG's church-and-state-related provisions represent a legislative effort to perform the type of Establishment Clause line drawing that the Supreme Court has traditionally undertaken and continues to undertake in cases involving aid to religious institutions. The congressional debate and the public controversy it engendered over line drawing between permissible and impermissible aid to religiously affiliated child care, and the resolution reached in the CCDBG, all achieve an important constitutional aim. They reflect and reinforce …

Peremptory Challenges: Free Strikes No More, H. Patrick Furman

Publications

No abstract provided.

Are Laws Against Assisted Suicide Unconstitutional?, Yale Kamisar

Articles

On 15 February of this year, shortly after the number of people Dr. Jack Kevorkian had helped to commit suicide swelled to fifteen, the Michigan legislature passed a law, effective that very day, making assisted suicide a felony punishable by up to four years in prison. The law, which is automatically repealed six months after a newly established commission on death and dying recommends permanent legislation, prohibits anyone with knowledge that another person intends to commit suicide from "intentionally providing the physical means" by which the other person does so or from "intentionally participat[ing] in a physical act" by which …

Televised Executions And The Constitution: Recognizing A First Amendment Right Of Access To State Executions, John Bessler

All Faculty Scholarship

This article examines the history of public and private executions and the passage of private execution laws. It concludes that existing laws restricting media access to executions – and requiring private executions that exclude television cameras – are unconstitutional. The author examines existing statutory schemes which curtail media access and prohibit the filming of executions, discusses legal challenges to such laws, and explores freedom of the press jurisprudence. In particular, the article analyzes First Amendment case law and right-of-access cases. The author also discusses the Eighth Amendment's relationship to First Amendment case law in the area of media coverage of …

Brief Of Feminists For Life Of America, Professional Women's Network, Birthright, Inc., Legal Action For Women, As Amici Curiae In Support Of Respondents And Cross Petitioners - Planned Parenthood Of Southeastern Pennsylvania V. Casey, 112 S. Ct. 2791 (1992), David F. Forte, Keith A. Fournier, Christine Smith Torre, Theodore H. Amshoff, Mary Dice Grenen

Law Faculty Briefs and Court Documents

Amici, representing women from all walks of life, are compelled by experience and conviction to advocate strongly that this Court reverse the vulnerable position of women caused by the lack of information given to women contemplating abortion. Amici respectfully urged this Court to affirm the ruling of the Court below, supporting the efforts of the women citizens of the Commonwealth of Pennsylvania to cause that government to exercise its police power to protect their health and safety by compelling the dissemination of the information necessary to make a fully informed decision.

Independent Counsel And The Constitution, Harold H. Bruff

Publications

No abstract provided.

Do The United States Sentencing Guidelines Deprive Defendants Of Due Process?, Bradford Mank

Faculty Articles and Other Publications

It is difficult to determine whether due process requires individualized sentencing because sentencing goals and practices have varied greatly during the course of this nation's history. A court applying Judge Bork's original intent doctrine of constitutional interpretation would probably reach a result different from that reached by a court employing a more liberal view of due process protections.1o It is likely that liberals and conservatives on the current Supreme Court would disagree on whether the Guidelines violate due process.

This article argues that the Guidelines can be saved and can satisfy due process requirements if the Supreme Court interprets the …

The Newberry Case, Ralph W. Aigler

Articles

Senator Newberry of Michigan and sixteen others were convicted in the United States District Court on the charge that they "unlawfully and feloniously did conspire, combine, confederate, and agree together to commit the offense [in the Newberry indictment] on his part of wilfully violating the act of Congress approved June 25, 1910, as amended, by giving, contributing, expending, and using and by causing to be given, contributed, expended and used in procuring his nomination and election at said primary and general elections, a greater sum than the laws of Michigan permitted and above ten thousand dollars," etc. The Act of …

The Commodity Clause Of The Hepburn Act, Edwin C. Goddard

Articles

The Supreme Court of the United States has added another to the interesting line of cases construing the so-called "Commodity Clause" of the HEPBURN ACT of 1906. In United States v. Delaware, Lackawanna & Western Railroad Co. and the Delaware, Lackawanna & Western Coal Co., decided on June 21, 1915, 35 Sup. Ct. 873, the court reversed the decree of the District Court as reported in 213 Fed. 240, and found the relation and contract between the Railroad Company and the Coal Company to be in violation of the HEPBURN ACT and the SHERMAN ACT.

The Corporation Tax Decision, Ralph W. Aigler

Articles

Seldom, if ever, in the history of the country has the Supreme Court been called upon within a comparatively short period of time to decide so many questions of widespread interest and vital importance as has been the case during the last year or two. Attempts on the part of the state and national governments to regulate and control corporations, which in recent years have come to exercise such a large and not always wholesome influence upon affairs generally, have been the occasion for the consideration by the court of many of the important cases recently presented. Among these are …