Law Commons^™

Terry V.Ohio, Massiah V. United States, And Zurcher V. Stanford Daily, Robert Bloom

Robert Bloom

No abstract provided.

How Mandatory Are Mandatory Minimums? How Judges Can Avoid Imposing Mandatory Minimum Sentences, Nathan A. Greenblatt

Nathan A Greenblatt

Mandatory minimum sentences are anathema to judges due to, it is commonly said, judges’ “utter lack of power to do anything for the exceptional defendants that move them.” In the case of Weldon Angelos, for example, U.S. District Judge Paul Cassell lamented that sentencing Mr. Angelos to 55 years in prison “is unjust, cruel, and even irrational. [The court] reluctantly concludes that it has no choice.” The Judicial Conference has consistently opposed mandatory minimum sentences for more than 50 years, because it, too, has concluded that mandatory sentences give judges no choice in sentencing. Indeed, the U.S. Sentencing Commission recently …

Promoting An Independent Judiciary As A Rule Of Law Principle: A Brief Commentary On The Supreme Court Of Pakistan, Kamaal Zaidi

Kamaal Zaidi

The rule of law is often difficult to establish in developing nations characterized by frequent political changes and unstable events that affect the separation of powers between the three branches of government – the executive, legislature, and judiciary. In particular, the integrity of the judiciary is often damaged by influences from the executive and legislative branches in that core democratic principles are promoted, including civil liberties, the supremacy of law, law and order, and transparency and accountability among government actors. In Pakistan, turbulent political events over the years have irreparably damaged the ability of the Supreme Court of Pakistan to …

Original Public Understanding Of The Fourteenth Amendment As Reflected In The Print Media Of 1866-1868, David T. Hardy

David T. Hardy

The controversy between 14th Amendment total incorporation under the privileges or immunities clause, and selective incorporation under its due process clause, has remained quiescent in recent years. Now, three cases pending in the lower Federal courts are making bids to revive the controversy that once generated a feud between Justice Black and Justice Frankfurter.

In the last Term, a majority of the Supreme Court accepted a variant of original public meaning as the key to ascertaining constitutional meaning; the focus of this interpretative methodology is not upon Congressional understanding in proposing a constitutional provision, but upon the likely understanding of …

Paul V. The Clintons, Et Al: Fec Complicity And A Plea For Real And Present Campaign Finance Reform, Ellis Washington

Ellis Washington

This Article is an analysis of current legislation, case law and election law policy regarding campaign finance disclosure rules and the need for a truly independent Federal Election Commission to efficiently enforce existing election laws. Admittedly, this article isn’t as theoretical as other scholarly works on this subject, however, since campaign finance reform is a rather complex subject, I didn’t want to get caught up in the endless minutiae of legislative and court opinion other than a general review in the context of the case at bar as well as the present state of campaign finance reform policy. I also …

The Original Understanding Of The Political Status Of Indian Tribes, Matthew L.M. Fletcher

Matthew L.M. Fletcher

This Article will demonstrate that virtually all elements of Indian affairs can be traced to the decision of the United States to recognize Indian tribes as political entities and to make Indian law and policy based on the political status of Indian tribes. Indian law is often assumed to be race law. As a result, observers tend to try to force Indian law into the constitutional race law paradigm. Justice Blackmun’s footnote 24 in Morton v. Mancari – describing federal legislation and rules relating to Indian tribes as a political classification – hit upon the proper understanding of Indian law. …

Penn Central For Tomorrow: Making Regulatory Takings Predictable, Kenneth S. Miller

Kenneth S Miller

No abstract provided.

Unraveling Judicial Restraint: Guns, Abortion, And The Faux Conservatism Of J. Harvie Wilkinson, Iii, Nelson Lund, David B. Kopel

David B Kopel

Writing in the Virginia Law Review, a distinguished federal judge maintains that true conservatives are required to substitute principles of judicial restraint for an inquiry into the original meaning of the Constitution. Accordingly, argues J. Harvie Wilkinson, III, the Supreme Court's Second Amendment decision in District of Columbia v. Heller is an activist decision just like Roe v. Wade: "[B]oth cases found judicially enforceable substantive rights only ambiguously rooted in the Constitution's text." In this response, we challenge his critique.

Part I shows that Judge Wilkinson's analogy between Roe and Heller is untenable. The right of the people to keep …

The Judges V. The State: Obtaining Adequate Judicial Compensation And New York's Current Constitutional Crisis, Justin S. Teff

Justin S Teff

The problem of obtaining adequate judicial compensation, a cornerstone of judicial independence, has now reached the level of a constitutional crisis in New York. In this year and the last, three separate law suits have been brought by New York judges against the coordinate branches of government regarding the constitutionality of the near decade-long failure to provide for judicial pay increases. This article reviews the history of the present crisis, the judges’ lawsuits, and makes conclusions regarding the state Constitutional claims regarding New York’s no-diminution clause and separation of powers doctrine. The article also reviews the proper remedy should the …

Binding The Dogs Of War: Japan And The Constitutionalizing Of Jus Ad Bellum, Craig Martin

Craig Martin

There is still very little constitutional control over the decision to use armed force, and very limited domestic implementation of the international principles of jus ad bellum, notwithstanding the increasing overlap between international and domestic legal systems and the spread of constitutional democracy. The relationship between constitutional and international law constraints on the use of armed force has a long history. Aspects of constitutional theory, liberal theories of international law, and transnational process theory of international law compliance, suggest that constitutional design could legitimately be used as a pre-commitment device to lock-in jus ad bellum principles, and thereby enhance compliance …

The Trouble With Putting All Of Your Eggs In One Basket: Using A Property Rights Model To Resolve Disputes Over Cryopreserved Embryos, Bridget M. Fuselier

Bridget M Fuselier

“The Trouble With Putting All of Your Eggs in One Basket:

Using a Property Rights Model to Resolve Disputes Over Cryopreserved Embryos”

Bridget M. Fuselier

ABSTRACT

This article covers a very current and relevant topic in today’s legal environment. Previous articles have merely discussed competing models or coverage of the disputes in the case law. My article embarks upon a comprehensive look at the specific problem presented and then goes on to offer a specific model with proposed legislation to address these disputes in a fundamentally more efficient manner.

As evidenced by current efforts in a number of states, the …

After Two Centuries, Our ‘Better Angels’ Finally Learn To Speak, Alan E. Garfield

Alan E Garfield

No abstract provided.

Northwest Austin Municipal Utility District Number One V. Mukasey: The Supreme Court's Opportunity To Examine And Clarify The Law Surrounding Section 5 Of The Voting Rights Act, Matthew C. Dahl

Matthew C. Dahl

No abstract provided.

Small States And Constitution-Making: The Causes Of Different Outcomes In Philadelphia And Bruxelles, Robert Podolnjak

Robert Podolnjak

The theme of this article is analysis of possible causes of different outcomes in two constitutional conventions - the American federal convention held in Philadelphia in 1787 and the Convention on the future of Europe held in Brussels in 2002-2003 - regarding the conflict between the large and small states, which was central in both conventions. This conflict was relevant in Philadelphia in the resolution of issues concerning the representation and voting power of states in the Congress and some other institutional issues (Electoral College, veto on the laws of the states, Senatorial powers, amendments) and in the European Convention …

A Proposal For Establishing Specialized Federal And State "Takings Courts", John Martinez

John Martinez

A Proposal for Establishing

Specialized Federal and State "Takings Courts"

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

Takings doctrine is a mess. This article proposes that we just accept that -- and establish specialized federal and state "takings courts" for adjudicating takings claims.

In 1978 the United States Supreme Court confessed that takings analysis is hopelessly ad hoc. And in 2005, the Court abrogated a test for takings which it had followed for 25 years. Indeed, some scholars have even resigned themselves to embracing vagueness as a virtue in takings …

A Unified Theory Of 28 U.S.C. § 1331 Jurisdiction, Lumen N. Mulligan

Lumen N. Mulligan

Title 28, section 1331 of the United States Code provides the jurisdictional grounding for the majority of cases heard in the federal courts, yet it is not well understood. The predominant view holds that section 1331 doctrine both lacks a focus upon congressional intent and is internally inconsistent. I seek to counter both these assumptions by re-contextualizing the Court’s section 1331 jurisprudence in terms of the contemporary judicial usage of “right” (i.e., clear, mandatory obligations capable of judicial enforcement) and cause of action (i.e., permission to vindicate a right in court). In conducting this reinterpretation, I argue that section 1331 …

Posthumously Conceived Children And Social Security Entitlements; Or Things (Not) To Do In Little Rock When You’Re Dead, Mel Cousins

Mel Cousins

This case note examines a number of recent decisions of the Arkansas state courts concerning the entitlements of posthumously conceived children under social security and workers compensation law. These decisions highlight the differences in approach which have been adopted in this important area and the difficulties caused by the lack of a uniform approach in federal law.

Balancing Competing Individual Constitutional Rights: Raising Some Questions, Taunya Banks

Taunya Lovell Banks

Despite increasing support for global human rights ..., some scholars and constitutional democracies, like the United States, continue to resist constitutionalizing socio-economic rights. Socio-economic rights, unlike political and civil constitutional rights that usually prohibit government actions, are thought to impose positive obligations on government. As a result, constitutionalizing socio-economic rights raises questions about separation of powers and the competence of courts to decide traditionally legislative and executive matters. ... [W]hen transitional democracies, like South Africa, choose to constitutionalize socio-economic rights, courts inevitably must grapple with their role in the realization of those rights.... Two questions immediately come to mind: (1) …

"Throwing Away The Key: An Examination Of New York's Sex Offender Civil Commitment Statute", Joseph E. Fahey

Joseph E Fahey

No abstract provided.

"Nasty As They Wanna Be", Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

Hanging In A Balance: Freedom Of Expression And Religion, Puja Kapai, Anne Sy Cheung

Puja Kapai

When the liberty to freely express oneself is at odds with another’s right to freedom of religion, we are confronted with the classic dilemma of choosing between two equally fundamental, constitutionally and internationally protected rights. The contours of the said two rights however, are far from clear. Whilst freedom of expression is not an absolute right, its limits are controversial. Equally, while it is undisputed that freedom of religion is an internationally protected human right enshrined in various international instruments, there is no comprehensive international treaty which addresses as its subject the content and extent of the right of freedom …

Eloquence And Reason: Creating A First Amendment Culture, Robert L. Tsai

Robert L Tsai

This book presents a general theory to explain how the words in the Constitution become culturally salient ideas, inscribed in the habits and outlooks of ordinary Americans. "Eloquence and Reason" employs the First Amendment as a case study to illustrate that liberty is achieved through the formation of a common language and a set of organizing beliefs. The book explicates the structure of First Amendment language as a distinctive discourse and illustrates how activists, lawyers, and even presidents help to sustain our First Amendment belief system. When significant changes to constitutional law occur, they are best understood as the results …

"Nasty As They Wanna Be", Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

"Nasty As They Wanna Be", Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

Liberty, Liberalism And Neutrality: Labor Preemption And First Amendment Values, Harry G. Hutchison

Harry G. Hutchison

In Chamber of Commerce et al v. Edmund G. Brown, the Supreme Court offers one theory of judicial invalidation that protects employers’ freedom of speech claims and reinvigorates federal preemption doctrine within the meaning of the National Labor Relations Act (NLRA). Prescinding from an architectonic conception of freedom of speech that is supported forcefully and explicitly by the First Amendment, the Court relies on preemption doctrine to invalidate two provisions of a California statute because the enactment constitutes regulation, which intrudes into a zone that is protected and reserved for market freedom. The Court properly upholds its previous stance permitting …

Pole Dancing Reprise/Reprieve, Timothy Zick

Popular Media

No abstract provided.

Nasty As They Wanna Be, Terri R. Day

Terri R. Day

"Nasty as They Wanna Be" reflects on the social and legal implications of campaign speech restrictions. On the heels of a vigorously fought presidential election, much of voters' and media attention focused on the tenor of the campaign ads and accusations. Although most states and municipalities have some type of "clean campaign" speech restrictions, this paper takes the view that such attempts are per se unconstitutional. The relevance of the "market place of ideas" and New York Times v. Sullivan remains paramount when government attempts to control the content of political discourse during campaigns.

The Pot Of Gold At The End Of The Class Action Lawsuit: Can States Claim It As Unclaimed Property?, Ethan Millar, John Coalson

Ethan Millar

This article analyzes the potential application of state unclaimed property laws to unclaimed settlement proceeds in a state or federal court class action. This article concludes that, in a federal court class action, federal law rather than state law should apply to the disposition of unclaimed settlement proceeds under Federal Rule of Civil Procedure 23, the Erie doctrine, and other authorities. Thus, since federal law grants the district court broad discretion to approve settlements and determine the manner of disposing of unclaimed settlement proceeds, the court is not bound by state unclaimed property laws which may otherwise require those proceeds …

Constitution By Compromise, Howard Schweber, Amnon Cavari

Howard Schweber

The question of empowering the court and the limits of constitutional protection are at the heart of the debate over constitutional design in Israel. Lacking a comprehensive written constitution, Israel nonetheless has a set of basic laws which encompass many of the functions of a constitutional text making it a near-complete constitution. Nonetheless, there continues to be considerable support for the idea of a single, formally adopted constitutional text. Recently, several proposals have been brought to the forefront of political discussions through the actions of various interest groups outside the government, and energized and committed efforts by government officials and …

Crowning The New King: The Statutory Arbitrator And The Demise Of Judicial Review, Michael H. Leroy

Michael H LeRoy

Judicial review of arbitration awards is highly deferential, but when does it become rubber stamping? Using original data, I find that federal courts vacated only 4.3 percent of 162 disputed awards. Nearly the same result was observed for a sub-sample of 44 employment discrimination awards under Title VII. By comparison, federal appeals courts in 2006 reversed 12.9 percent of 5,917 rulings made by civil court judges on the merits of legal claims.

Why are the rulings of Article III judges scrutinized more than the awards of citizen-arbitrators? What does this mean when companies can avoid Article III court rulings by …