Law Commons^™

The Meaning Of “Life”: The Morning-After-Pill, The Question Of When Life Begins, And Judicial Review, Jason M. Horst

ExpressO

The Article foresees that certain state legislation limiting access to the morning-after-pill will thrust the question of when life begins onto the courts. This is due both to fact that the morning-after-pill has the potential to act at a point when the existence of potential life is in dispute and largely a matter of belief and to the fact that the constitutionality of the legislation may depend on whether courts consider the morning-after-pill abortion or contraception.

The Article argues that courts should address the question of whether to consider the morning-after-pill abortion or contraception by attempting to adopt and apply …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

St. George Tucker’S Second Amendment: Deconstructing ‘The True Palladium Of Liberty’, Stephen P. Halbrook

ExpressO

St. George Tucker, known as “America’s Blackstone” and author of the first commentary on the Constitution in 1803, described the Second Amendment right of the people to keep and bear arms as “the true palladium of liberty.” In a recent symposium at the William and Mary College of Law, Prof. Saul Cornell presented Tucker as an adherent of the view that the Amendment guarantees a collective or civic right to bear arms in the militia, not an individual right to have arms for self defense or as a dissuasion to tyranny. In response, my article scrutinizes Tucker’s work in detail …

Off To Elba: The Legitimacy Of Sex Offender Residence And Employment Restrictions, Joseph L. Lester

ExpressO

Overborne by a mob mentality for justice, officials at every level of government are enacting laws that effectively exile convicted sex offenders from their midst with little contemplation as to the appropriateness or constitutionality of their actions. These laws fundamentally alter the liberties and freedom of convicted sex offenders to satisfy the ignorant fear of the masses. As a result, residence and employment restrictions which in theory are to protect society, in practice only exacerbate the perceived recidivism problem. When such laws are passed and the political process is broken, it is necessary for the judicial branch to step forward …

Troubles With Hiibel: How The Court Inverted The Relationship Between Citizens And The State, John A. Fennel, Richard Sobel

ExpressO

This essay shows why the Supreme Court’s decision in Hiibel v. Sixth Judicial District of Nevada violates precedent, the Constitution, and the very basis for the relationship between government and the governed. First, the Court has violated the clear limits Terry v. Ohio set on the restricted searches based on reasonable suspicion within the restrictions of the Fourth and Fifth Amendments. By using the power of the state to compel citizens to produce identification, it also violates the First, Fourth, and Fifth Amendments as well as the unenumerated rights that conceptually link the enumerated rights in the Court’s jurisprudence. Finally, …

Parents Involved & Meredith: A Prediction Regarding The (Un)Constitutionality Of Race-Conscious Student Assignment Plans, Eboni S. Nelson

ExpressO

During the October 2006 Term, the United States Supreme Court will consider the constitutionality of voluntary race-conscious student assignment plans as employed in Parents Involved in Community Schools v. Seattle School District No.1 and Meredith v. Jefferson County Board of Education. These cases will mark the Court’s first inquiry regarding the use of race to combat de facto segregation in public education. This article examines the constitutionality of such plans and provides a prediction regarding the Court’s decisions.

The article begins with an analysis of the resegregation trend currently plaguing American educational institutions and identifies two causes for the occurrence: …

“Actions As Words, Words As Actions: Sexual Harassment Law, The First Amendment And Verbal Acts, John F. Wirenius

ExpressO

The article examines the tension between the hostile work environment under the civil rights laws and the First Amendment’s protection of free speech, even when such speech is offensive and even discriminatory. After discussing the tension and its limits, the author examines other rationales proposed to resolve this tension, and rejecting them as unsatisfactory. Noting that hostile work environment doctrine, as a variable standard, employs a less “bright-line” approach than is typical of the First Amendment’s rule, the author nonetheless finds that the “open texture” of all rules, and the requirement that a hostile work environment be systematically pervasive or …

Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults

ExpressO

The Article argues in favor of shifting the balance in federal sentencing toward a more indeterminate system. By exploring the post-Booker legal landscape at both the federal and state levels, the Article asserts that the judiciary's continued reliance on the “advisory" Guidelines has practically changed federal sentencing procedures very little in form or function. Accordingly, the Article proffers that, rather than insisting upon the Guidelines' immutability, federal sentencing would do well to reflect upon its own history, and the evolution of its state counterparts.

Radicals In Robes: A Review, Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book about conservative activists in the federal judiciary. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an …

Tough Talk From The Supreme Court On Free Speech: The Illusory Per Se Rule In Garcetti As Further Evidence Of Connick’S Unworkable Employee/Citizen Speech Partition, Sonya K. Bice

ExpressO

Garcetti v. Ceballos was intended to clear up an area of First Amendment law so murky that it was the source not only of circuit splits but also of intra-circuit splits—panels from within the same circuit had arrived at opposite results in nearly identical cases. As it turned out, the Supreme Court itself was as splintered as the circuits. Of all the previously argued cases that remained undecided during the Court’s transition involving Justice O’Connor’s retirement and Justice Alito’s confirmation, Garcetti was the only one for which the Court ordered a second argument. This suggested to some that without a …

Conversational Standing: A New Approach To An Old Privacy Problem, Christopher M. Drake

ExpressO

American society has long considered certain conversations private amongst the participants in those conversations. In other words, when two or more people are conversing in a variety of settings and through a variety of media, there are times when all parties to the conversation can reasonably expect freedom from improper government intrusion, whether through direct participation or secret monitoring. This shared expectation of privacy has been slow to gain judicial recognition. Courts have indicated that the Fourth Amendment to the United States Constitution only protects certain elements of the conversation, such as where and how it takes place, but that …

The Restitutionary Approach To Just Compensation, Tim Kowal

ExpressO

In the wake of the Court’s near-total refusal to impose a check on the legislature through the public use clause, this paper discusses whether any confidence in our property rights be restored through the just compensation clause in the form of restitutionary compensation, rather than the traditional, and myopic, “fair market value” standard. This paper discusses the historical presumption against restitution, elucidated through Bauman v. Ross over a century ago, is founded upon (1) the idea that the public should not be made to pay any more than necessary to effect a public project, and (2) the idea that the …

The Uncertain Future Of Marriage And The Alternatives, Daniel I. Weiner

ExpressO

The cultural and institutional predominance of marriage in our society has lately been challenged by two important social trends: growing dissatisfaction with or indifference to marriage on the part of those eligible to marry, and the emergence of nontraditional families headed by adults who may wish to marry but are presently excluded from doing so. This Essay argues that proactive law reformers have responded to these trends by taking two very different approaches. The first approach, “diversity of forms,” is exemplified by the cultivation of alternatives and substitutes to traditional marriage ranging from same and opposite-sex domestic partnerships and other …

Rethinking Civil Contempt Incarceration, Jessica C. Kornberg

ExpressO

Under current federal law civil contempt is governed by the Federal Rules of Civil Procedure, yet it often results in incarceration. This incarceration can, and in a few cases has been, indefinite. The unlimited duration of civil contempt represents the pinnacle of judicial power, and yet it is a topic which has generated surprisingly little scholarship or case law. This Article explores the history and development of modern contempt law, and finds that while the federal law treats all civil contemnors equally, historically and in many states, contemnors are classified by the type of civil contempt committed. This Article proposes …

The New Nuisance: An Antidote To Wetland Loss, Sprawl, And Global Warming, Christine A. Klein

ExpressO

In 1992, Lucas v. South Carolina Coastal Council held that governments must provide compensation to landowners whenever regulations deprive land of all economically beneficial use, unless the restrictions inhere in background principles of the state’s law of property and nuisance. Such background principles, the Court added, may evolve in accordance with new knowledge. Thus, nuisance became “new” in two critical respects: it expanded from offense to affirmative defense, and it explicitly recognized that new learning continuously redefines the boundaries of nuisance. More than a dozen years have passed since Lucas, and much is new: The years have brought a shift …

The "Benefits" Of Non-Delegation: Using The Non-Delegation Doctrine To Bring More Rigor To Benefit-Cost Analysis, Victor B. Flatt

ExpressO

This article examines the problems of benefit-cost (or cost-benefit) analysis in our regulatory system and posits that a more nuanced version of the “non-delegation” doctrine (made famous in Schechter Poultry) could improve many of the problems associated with the use of benefit-cost analysis. In particular this article notes that many of the problems with benefit-cost analysis are its use by agencies to make large policy decisions, which could be characterized as legislative. The article also notes that though the “non-delegation” doctrine may appear to be dead or dormant, that a form of it, in separation of powers doctrine, exists in …

Beyond Conspiracy? Anticipatory Prosecution And The Challenge Of Unaffiliated Terrorism, Robert Chesney

ExpressO

How early does criminal liability attach along the continuum between planning and committing a terrorist act? And in light of the answer to that question, have we struck an appropriate balance between the benefits of prevention and the off-setting costs in terms of a potentially-increased rate of false-positives and foregone opportunities to gather additional intelligence and evidence? These questions are pressing, particularly in light of statements from senior government officials that the Justice Department will be “forward-leaning” in its interpretation of its anticipatory-prosecution powers. My aim in this article is to establish a shared understanding regarding the first question in …

The Pocahontas Exception: The Exemption Of American Indian Ancestry From Racial Purity Law, Kevin Noble Maillard

ExpressO

“The Pocahontas Exception” confronts the legal existence and cultural fascination with the eponymous “Indian Grandmother.” Laws existed in many states that prohibited marriage between whites and nonwhites to prevent the “quagmire of mongrelization.” Yet, this racial protectionism, as ingrained in law, blatantly exempted Indian blood from the threat to white racial purity. In Virginia, the Racial Integrity Act of 1924 made exceptions for whites of mixed descent who proudly claimed Native American ancestry from Pocahontas. This paper questions the juridical exceptions made for Native American ancestry in antimiscegenation statues, and analyzes the concomitant exemptions in contemporary social practice. With increasing …

A Race Or A Nation? Cherokee National Identity And The Status Of Freedmen's Descendents, S. Alan Ray

ExpressO

The Cherokee Nation today faces the challenge of determining its citizenship criteria in the context of race. The article focuses on the Cherokee Freedmen. As former slaves of Cherokee citizens, the Freedmen were adopted into the Cherokee Nation after the Civil War pursuant to a treaty with the United States, and given unqualified rights of citizenship. The incorporation of the Freedmen into the tribe was resisted from the start, and now, faced with a decision of the Cherokee Nation’s highest court affirming the descendents’ citizenship rights, the Nation prepares to vote on a constitutional amendment which would impose an Indian …

Conducting The Constitution: Justice Scalia, Textualism, And The Eroica Symphony, Ian Gallacher

ExpressO

This article examines the three principle Constitutional interpretative approaches and compares them to similar interpretative doctrines used by musicians. In particular, it examines the theoretical underpinnings of Justice Scalia’s “textualist” philosophy by trying to predict what results would obtain from application of that philosophy to a performance of the first movement of Beethoven’s “Eroica” symphony.

The article does not declare the foundation of a new genre of legal hermeneutics, nor does it seek to announce a comprehensive interpretative framework that can solve problems of Constitutional or statutory interpretation. Rather, the article explores some fundamental principles of legal textual interpretation while, …

Malibu Locals Only: "Boys Will Be Boys", Or Dangerous Street Gang? Why The Criminal Justice System's Failure To Properly Identify Suburban Gangs Hurts Efforts At Fighting Gangs, Brian William Ludeke

ExpressO

In the last several years, a group of youths calling themselves Malibu Locals Only or MLO has performed several violent crimes, intimidating many people in the area around Malibu, CA. Despite the gang-like appearance of these youths and their crimes, Los Angeles County Sheriff's Department officials insist that MLO is not a gang. This article examines MLO, its history, and its current state in the context of California anti-gang legislation.

The article theorizes that the criminal justice system's failure to call a group like MLO a gang while waging war on other groups, primarily in lower income, heavily minority areas, …

The Roberts Court: Year 1, Lori A. Ringhand

ExpressO

This paper is an empirical examination of the recently ended 2005 Supreme Court term. The paper, in addition to reviewing the work of the Court as a whole, also examines the jurisprudence of new justices Roberts and Alito. In doing so, it proposes the intriguing possibility that these two justices may share a jurisprudential approach different from the Court's more established conservatives. If correct, this raises numerous and interesting possibilities for the future of conservativism on the Supreme Court.

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

Access To Audiences As A First Amendment Right: Its Relevance And Implications For Electronic Media Policy, Philip M. Napoli, Sheea T. Sybblis

ExpressO

When the issue of speakers’ rights of access arises in media regulation and policy contexts, the focus typically is on the concept of speakers’ rights of access “to the media,” or “to the press.” This right usually is premised on the audience’s need for access to diverse sources and content. In contrast, in many non-mediated contexts, the concept of speakers’ rights of access frequently is defined in terms of the speaker’s own First Amendment right of access to audiences. This paper explores the important distinctions between these differing interpretations of a speaker’s access rights and argues that the concept of …

Squaring The Circle: Democratizing Judicial Review And The Counter-Constitutional Difficulty, Miguel Schor

ExpressO

The Article argues that the polarization in the appointments process for the United States Supreme Court creates a problem that I call the counter-constitutional difficulty. A constitution is designed to put certain decisions off limits to the workings of ordinary politics. Laws can be made and changed by majoritarian mechanisms whereas a constitution can be made and changed only by supermajoritarian mechanisms. The United States Constitution, however, has an Achilles heel. The easiest way to amend the Constitution is by changing the membership of the Supreme Court given the rigors of Article V. A number of decisions by the Court …

Who Will Redevelop Redevelopment?, Tim Kowal

ExpressO

Although California’s redevelopment law is among the strictest in the nation, from a layperson’s perspective, redevelopment agencies (RDAs) appear to be no more obstructed from their projects in California as they would be in, say, Connecticut. This article addresses a sort of “tragedy of the commons” problem applied to redevelopment: If redevelopment powers are “over-harvested” such as to instigate serious political revolt against them, they will become barren and useless, and will no longer be available for the purposes for which they were intended and for which they are still needed. Even assuming that redevelopment is efficacious and necessary, redevelopment …

Foundations Of Federalism: An Exchange, Randall P. Bezanson, Steven Moeller

ExpressO

Our manuscript entitled "The Foundations of Federalism: An Exchange" is occasioned by the Supreme Court's federalism jurisprudence which, in our judgment, calls for a broad ranging exploration of the constitutional concept of federalism itself. That exploration takes place in the form of a dialog between us which, while rewritten from its original form, nevertheless reflects our actual exchanges over an 18 month period. Our conclusion is that such terms as "sovereignty" generally have no place in American constitutional federalism, that the Supreme Court's efforts to enforce federalism limitations have been ineffective and, in some instances, counterproductive, and most basically that …

Review Essay: Radicals In Robes , Dru Stevenson

ExpressO

This essay reviews and critiques Cass Sunstein’s new book entitled Radicals in Robes. After a discussion of Sunstein’s (somewhat misleading) rhetorical nomenclature, this essay argues that Sunstein’s proposed “minimalist” methodology in constitutional jurisprudence is beneficial, but not for the reasons Sunstein suggests. Sunstein alternatively justifies judicial restraint or incrementalism on epistemological self-doubt (cautiousness being an outgrowth of uncertainty) and his fear that accomplishments by Progressives in the last century will be undone by conservative judges in the present. Constitutional incrementalism is more convincingly justified on classical economic grounds. While affirming Sunstein’s overall thesis, this essay offers an alternative rationale for …

Review Essay: Using All Available Information, Max Huffman

ExpressO

This is a review essay entitled “Using All Available Information,” in which I review and comment on Justice Stephen Breyer’s new book, Active Liberty: Interpreting Our Democratic Constitution, published in September 2005. Justice Breyer’s book, adapted from the Tanner Lectures given in 2005 at Harvard Law School, serves partly as a response to Justice Scalia’s 1997 volume A Matter of Interpretation: Federal Courts and the Law. I review Justice Breyer’s book in part by comparison to and contrast with Justice Scalia’s. I propose that much about Justice Breyer’s interpretive philosophy, which centers on determining the “purposes” of texts and interpreting …

Zoning And Eminent Domain Under The New Minimum Scrutiny, John H. Ryskamp

ExpressO

Recently the Supreme Court has made it clearer that minimum scrutiny is a factual analysis. Whether in any government action there is a rational relation to a legitimate interest is a matter of determining whether there is a policy maintaining important facts. This has come about in the Court’s emerging emphasis on developing fact-based criteria for determining government purpose. Thus, those who want to affect zoning and eminent domain outcomes should look to what the Court sees as important facts, and whether government action is maintaining those facts with its proposed land use or eminent domain action.