Law Commons^™

Choice Programs And Market-Based Separationism, Paul E. Salamanca

Law Faculty Scholarly Articles

The Supreme Court's recent decision in Zelman v. Simmons-Harris appears to clear the way for a wide variety of educational and charitable choice plans. In this decision, the Court upheld against Establishment Cause Challenge a formally neutral school choice program that encompassed a wide variety of options in the public and private sector, including private sectarian schools. The Court reasoned that, when the government makes aid available to a broad class of recipients without regard to their religious or non-religious affiliation, and when the recipients have a genuine choice as to whether to obtain that aid from a religious or …

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 …

Means/Ends Analysis In Copyright Law: Eldred V. Ashcroft In One Act, Dan T. Coenen, Paul J. Heald

Scholarly Works

The authors examine Eldred v. Ashcroft in a play setting where one of the characters plays a constitutional law professor and the other character plays an intellectual property professor.

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 …

Unmasking The Presumption In Favor Of Preemption, Mary J. Davis

South Carolina Law Review

No abstract provided.

Constitutional Law, Robin Jean Davis, Louis J. Palmer Jr.

West Virginia Law Review

No abstract provided.

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

C. Peter Erlinder

No abstract provided.

The Law: Defending Congress’S Interests In Court: How Lawmakers And The President Bargain Over Department Of Justice Representation, Neal Devins

Faculty Publications

In understanding the willingness of government lawyers to defend the constitutionality of federal statutes, this article will explain why presidents rarely make use of their powers under the Constitution (allowing the president to refuse to defend laws he finds unconstitutional) and under federal law (placing the control of most government litigation with the attorney general). Attention will be paid both to how Department of Justice lawyers enhance their power by defending federal statutes and to how Congress, if need be, can pressure the department to bow to lawmaker preferences. In consequence, when the president refuses to defend a statute, courts …

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

All Faculty Scholarship

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 …

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

All Faculty Scholarship

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 …

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

All Faculty Scholarship

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 …

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 …

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

All Faculty Scholarship

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 …

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 …

Straw Polls, Daniel B. Rodriguez

University of San Diego Public Law and Legal Theory Research Paper Series

A key measure of the democratic quality of a political community is how its members vote. The design and implementation of voting arrangements can illuminate the nature, purposes, and even potential of a community of citizens. Voting is, at the very least, used to sort out and implement preferences. Voting processes help in sorting out winners from losers and thereby provide a presumptively fair method for the implementation of public policy. At the same time, voting in a democratic policy is a coercive act. Voters are not merely expressing preferences; they are acting in order to transform their preferences into …

The Rhetoric Of Judicial Critique: From Judicial Restraint To The Virtual Bill Of Rights, Michael J. Gerhardt

Faculty Publications

No abstract provided.

What To Do With Bin Laden And Al Qaeda Terrorists?: A Qualified Defense Of Military Commissions And United States Policy On Detainees At Guantanamo Bay Naval Base, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission.

The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly …

Mcqueen V. South Carolina Coastal Council: Presenting The Question Of The Relevance Of The Public Trust Doctrine To The Total Regulatory Takings Analysis, Daniel A. Nussbaum

South Carolina Law Review

No abstract provided.

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 …

Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin R. Scordato, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

Clarence Thomas After Ten Years: Some Reflections , Stephen J. Wermiel

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Limits Of Secularism: Public Religious Expression In Moments Of National Crisis And Tragedy, William P. Marshall

Faculty Publications

No abstract provided.

Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin Roger Scordato

Scholarly Articles

The tragic events of September 11th generated numerous proposals for greater security measures and increased police powers that might, if implemented, constrict the customary scope of free speech in the United States. Legitimate concerns for internal security have placed increased pressures on traditional constitutional protections for expressive activity. It is against this backdrop that this article presents a careful examination of the basic rationales for adopting constitutional level protections for free speech. The article analyzes the nature of, and many of the conflicts among, the traditional rationales for a constitutional right of free expression. It also suggests that much of …

On Revolution And Wetland Regulations, Michael J. Gerhardt

Faculty Publications

No abstract provided.

United States V. Oakland Cannabis Buyers' Cooperative: The Medical Necesity Defense As An Exception To The Controlled Substances Act, Emily Farr

South Carolina Law Review

No abstract provided.