Law Commons^™

Takings By Regulation: How Should Courts Weigh The Balancing Factors?, David Crump

David Crump

The Fifth Amendment to the Constitution provides that private property may not be taken without just compensation. But the Takings Clause does not provide much guidance to a court that is struggling to decide in a given case whether the facts before it amount to a taking. In Penn Central Transportation Company v. New York, the Supreme Court said that an ad hoc balancing test was to be the general approach to a regulatory takings case. The Court did not tell us how the factors were to be weighed, and in fact it left some of the balancing factors themselves …

Government Under Party, Party Under Constitution: On The Construction Of Chinese State-Party Rule Of Law Constitutionalism, Larry Cata Backer

Larry Cata Backer

Since the establishment of the Soviet Union, constitutional theory has tended to look suspiciously at the constitutionalization of Marxist Leninist state apparatus under the control of a single party in power. These judgments have formed the basis of analysis of Chinese constitutionalism as well. But are these criticisms inevitably correct in general, and wholly applicable in the post 1989 Chinese context after the structural reforms of Deng Xiaoping and his successors? This paper explores those questions, developing a constitutional theory for states organized on a state-party model. The thesis of the article is this: Chinese constitutionalism presents a coherent and …

The Thirteenth Amendment As A Model For Revolution, Sandra L. Rierson

Sandra L Rierson

To date, the United States has experienced only a handful of successful revolutionary movements. The first was the American Revolution itself. Although the original colonies’ war of independence and the resulting creation of a democratic republic was assuredly a revolution, it was incomplete in at least one major respect: it failed to resolve the fundamental conflict between the aspiration of freedom and the reality of slavery. Moreover, the bargains made and compromises struck at the time of the Revolution and as embodied within the Constitution neither encouraged nor enabled a course of gradual abolitionism, as the Founders purportedly hoped. Instead, …

Anti-Cyber Bullying Statutes: Threat To Student Free Speech, John O. Hayward

John O. Hayward

In October 2006, thirteen-year-old Megan Meier committed suicide because of postings on MySpace, an Internet social networking site. As a result, twenty-one states have passed statutes prohibiting cyber bullying, i.e., bullying by electronic means. Many of these laws threaten student free speech. This article examines cyber bullying, the laws it has spawned, how they chill student speech, their constitutionality, and proposes a Model Anti-Cyber Bullying Law.

Tax Lawyers, Tax Defiance, And The Ethics Of Casual Conversation, Michael Hatfield

Michael Hatfield

Tax Lawyers, Tax Defiance, and the Ethics of Casual Conversation Tax lawyers routinely navigate politically-charged waters when a tax topic is dropped into conversation. Increasingly, however, tax lawyers are confronted with comments that undermine the authority of the federal tax system itself. These comments may take several forms, including arguments that the income tax is unconstitutional. Regardless of form, this rhetoric differs from legitimate criticisms of the tax system because it encourages non-compliance as either a moral right or a political good . In the current environment, the tax bar should take up the call to be public educators with …

Balanced Budget Amendment Is Dangerous Gimmick, Not Solution, Nathan B. Oman

Popular Media

No abstract provided.

A Modest Appeal For Decent Respect, Jessica Olive, David C. Gray

David C. Gray

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits imposing a sentence of life in prison without the possibility of release for nonhomicide crimes if the perpetrator was under the age of eighteen at the time of his offense. In so holding, Justice Kennedy cited foreign and international law to confirm the Court’s independent judgment. In his dissent, Justice Thomas recited now-familiar objections to the Court’s reliance on these sources. Those objections are grounded in his originalist jurisprudence. In this short invited essay, which expands on prior work, we argue that Justice Thomas should abandon these …

Rights Bring Responsibility: Clear Constitutional Protections May Be Only The Beginning Of The Discussion, Alan E. Garfield

Alan E Garfield

No abstract provided.

A Framework To Apply The Article Iii Case Or Controversy Requirement To Motions To Confirm Or Vacate Arbitral Awards Pursuant To The Federal Arbitration Act, Aaron Franklin

Aaron Franklin

Arbitration is an important method of dispute resolution but it requires courts that can confirm or vacate arbitral awards. When parties move to confirm or vacate these awards, federal courts largely ignore the Article III case or controversy requirement’s role as a limit on their power. Applying this requirement is not as simple as it sounds, and courts have little guidance in doing so. This Article therefore provides a framework that resolves two problems. First, motions to confirm or vacate arbitral awards always involve an underlying dispute (the dispute that necessitated arbitration) and a dispute about whether to grant the …

Déjà Vu: From Comic Books To Video Games: Legislative Reliance On “Soft Science” To Protect Against Uncertain Societal Harm Linked To Violence V. The First Amendment, Terri R. Day, Ryan C.W. Hall M.D.

Terri R. Day

This article discusses the weaknesses and limitations of social science evidence to prove that the virtual world of violent video games causes any real world harm. The Supreme Court, in its next term, will consider the constitutionality of California’s ban on the sale and rental of violent video games to minors. The controversy on violent video games is the latest legislative attempt to ban access and distribution of violent materials to children, reminiscent of the comic books debate over sixty years ago. This paper goes beyond a discussion of the First Amendment obstacles to violent video game restrictions. It focuses …

A Criminal Justice System That Works, Alan E. Garfield

Alan E Garfield

No abstract provided.

The Great American Public, Mass Society, And The New Constitutional Order, Richard C. Boldt

Richard C. Boldt

No abstract provided.

Delegated Decree Authority In Contemporary South America: Comparative Study Of The Radical Left And Their Threat To The Rule Of Law, Kerry Mohan

Kerry Mohan

International attention regarding Executive decree authority within Latin America has significantly increased following Hugo Chávez’ 2007 enabling law in Venezuela. This attention has largely been negative, as the international media has often vilified Chávez for promulgating decrees with the force of law. What the international media has continually failed to discuss, however, is that Chávez’ form of decree authority, “delegated decree authority” or “DDA,” has been common throughout Venezuela’s history and most of South America. This article seeks to determine DDA’s prevalence within South America, and in particular Venezuela, Ecuador, and Colombia, and determine whether DDA poses a threat to …

Delegated Decree Authority In Contemporary South America: Comparative Study Of The Radical Left And Their Threat To The Rule Of Law, Kerry Mohan

Kerry Mohan

International attention regarding Executive decree authority within Latin America has significantly increased following Hugo Chávez’ 2007 enabling law in Venezuela. This attention has largely been negative, as the international media has often vilified Chávez for promulgating decrees with the force of law. What the international media has continually failed to discuss, however, is that Chávez’ form of decree authority, “delegated decree authority” or “DDA,” has been common throughout Venezuela’s history and most of South America. This article seeks to determine DDA’s prevalence within South America, and in particular Venezuela, Ecuador, and Colombia, and determine whether DDA poses a threat to …

The Parentless Child's Right To A Permanent Family, Joseph S. Jackson, Lauren G. Fasig

Joseph S. Jackson

Abstract More than 420,000 children in the United States are in foster care, and more than 110,000 of them are waiting to be adopted. State adoption statutes typically seek to achieve adoption for these children as promptly as possible, but some limit the pool of potential adoptive parents in one way or another. In this Article, we argue that such restrictions violate the State’s constitutional duties to parentless children in its care. Specifically, we contend that children in State custody have a substantive liberty interest in a secure and stable family relationship, because such a relationship is essential in order …

Climate Change And The Public Law Model Of Torts: Reinvigorating Judicial Restraint Doctrines, Donald G. Gifford

Donald G Gifford

The Article traces the origins of climate change litigation back to earlier forms of “public interest tort litigation,” including government actions against the manufacturers of cigarettes, handguns and lead pigment. Public interest tort litigation is different in kind from traditional tort actions, even asbestos and other mass products litigation. These new lawsuits address society-wide or even worldwide problems and seek judicially imposed regulatory regimes. As such, they more closely resemble civil rights litigation and what Abram Chayes deemed “the public law model” than they do earlier tort actions. I conclude that the public law model of tort litigation is the …

Pleading Their Case: How Ashcroft V. Iqbal Extinguishes Prisoners’ Rights, Maureen Brocco

Maureen Brocco

Ashcroft v. Iqbal, decided on May 18, 2009, increased the evidentiary burden required to survive a Federal Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”) motion to dismiss to a strict plausibility standard. While this decision affects almost all civil claims in the federal court system, its impact is particularly troublesome in the realm of prisoners’ rights litigation. For a prisoner, such onerous pre-litigation fact-finding requirements can turn the administration of justice into an unattainable goal. Since prisoners’ claims are often against their captors, government officials, this heightened pleading burden may leave victims of egregious unconstitutional actions by government officials without …

Statutory Interpretation & The Presidency: The Hierarchy Of “Executive History”, Faye Jones, Alvan Balent

Faye E Jones

It is common knowledge that the New Deal fundamentally remade America because after the New Deal, Americans began looking to the federal government to solve their problems. This increased public interest in the national government prompted major changes in each branch of the government. The Executive branch, for instance, became the most prominent branch of the federal government, and the President consequently began exerting himself in all aspects of the government including lawmaking. Congress began to pass more legislation, and thus the federal judiciary’s docket became filled with statutory interpretation cases. However, when interpreting statutes, the judiciary has largely disregarded …

Deferring To The Assertion Of National Security: The Creation Of A National Security Exemption Under The National Environmental Policy Act Of 1969, Emily Donovan

Emily Donovan

The National Environmental Policy Act of 1969 (NEPA) aims to ensure that agencies consider the potential environmental impacts of their actions before engaging in them. In contrast to other major environmental legislation, Congress did not include a national security exemption under NEPA, meaning that, in theory, agencies in the business of national security must comply with NEPA just as any other agency, by considering mitigation measures and alternatives, and preparing environmental impact statements when necessary. The courts, however, in deciding NEPA noncompliance cases, have created a national security exemption that the legislature never intended. They have done so by failing …

Delegated Decree Authority In Contemporary South America: Comparative Study Of The Radical Left And Their Threat To The Rule Of Law, Kerry Mohan

Kerry Mohan

International attention regarding Executive decree authority within Latin America has significantly increased following Hugo Chávez’ 2007 enabling law in Venezuela. This attention has largely been negative, as the international media has often vilified Chávez for promulgating decrees with the force of law. What the international media has continually failed to discuss, however, is that Chávez’ form of decree authority, “delegated decree authority” or “DDA,” has been common throughout Venezuela’s history and most of South America. This article seeks to determine DDA’s prevalence within South America, and in particular Venezuela, Ecuador, and Colombia, and determine whether DDA poses a threat to …

Be Careful What You Wish For: Why Mcdonald V. City Of Chicago's Rejection Of The Privileges Or Immunities Clause May Not Be Such A Bad Thing For Rights, Jeffrey D. Jackson

Jeffrey D Jackson

On June 28, 2010, the United States Supreme Court handed down its much-awaited decision in McDonald v. City of Chicago, in which it held that the Second Amendment was incorporated against the States through the Fourteenth Amendment's Due Process Clause. In so doing, it rejected the opportunity to overrule its much-reviled opinion in The Slaughter-House Cases and incorporate the Second Amendment through the Fourteenth Amendment's Privileges or Immunities Clause. Thus ended what was probably the last, best attempt to revive what many consider to be the original meaning of privileges or immunities.

Although no doubt disappointing to those who saw …

Déjà Vu: From Comic Books To Video Games: Legislative Reliance On “Soft Science” To Protect Against Uncertain Societal Harm Linked To Violence V. The First Amendment, Terri R. Day, Ryan C.W. Hall M.D.

Terri R. Day

This article discusses the weaknesses and limitations of social science evidence to prove that the virtual world of violent video games causes any real world harm. The Supreme Court, in its next term, will consider the constitutionality of California’s ban on the sale and rental of violent video games to minors. The controversy on violent video games is the latest legislative attempt to ban access and distribution of violent materials to children, reminiscent of the comic books debate over sixty years ago. This paper goes beyond a discussion of the First Amendment obstacles to violent video game restrictions. It focuses …

Justice Rutledge's Appendix, John T. Valauri

John T. Valauri

Much disagreement and dispute have occurred since the Supreme Court inaugurated the modern era of Establishment Clause doctrine in 1947 in Everson v. Board of Education. Yet rather than turn elsewhere, this article argues that the best path to clarification of this doctrine lies in a return to basics, a return to what that case put forward as the basis of the meaning of the Establishment Clause—Madison’s role in the religious liberty struggle in Virginia in the 1780’s and, above all, in his Memorial and Remonstrance. But this examination focuses on what the justices in Everson did not—the principle of …

The Pinkerton Problem, Bruce A. Antkowiak

Bruce A Antkowiak

Pinkerton is a longstanding principle of criminal law that holds a conspirator liable for the substantive crimes of his confederates as long as they were committed during the course of and in furtherance of the conspiracy, and as long as they were objectively and reasonably foreseeable to a defendant. This leads to liability being imposed on individuals who did not personally have the mens rea required to commit the crime for which they are sentenced. The article argues that the use of such conspirator liability rules in many jurisdictions (federal and state) violates both due process and separation of powers …

A First Amendment Theory For Protecting Attorney Speech, Margaret C. Tarkington

Margaret C Tarkington

In June 2010, the United States Supreme Court held that Congress could constitutionally prohibit attorneys from providing legal assistance and advice regarding lawful nonviolent conduct to groups that the Secretary of State has designated as Foreign Terrorist Organizations (FTOs). The plaintiffs wished to assist two FTOs invoke international human rights law, petition the United Nations and United States Congress, and peacefully resolve their disputes. The Supreme Court held that the statute clearly prohibited plaintiffs’ proposed activities, but did not violate the Free Speech Clause of the First Amendment because the attorneys could still engage in “independent advocacy” of any message …

When Is Aesthetic Expression Speech?: The Neurobiology Of Decision-Making And The Need To Fully Protect Aesthetic Expression As Speech Under The First Amendment, Mary B. Russell

Mary B. Russell

This Article investigates which non-linguistic aesthetic expressions are and should be protected as “speech” under the First Amendment. It argues that “speech” should not be limited to linguistic expressions because aesthetic expressions are very powerful in decision-making, including the decisions central to the individual’s role in a democracy. This Article’s argument centers on the current work of neuroscience, which refutes the idea that individuals make decisions, even political decisions, solely on the basis of ideas expressed in language. Rather, all sensory experiences contribute to the brain’s process of decision-making. The work of neuroscience in this area supports the argument the …

Using Cognitive Neuroscience To Provide A Procedure For The Involuntary Commitment Of Violent Criminals As A Part Of Or Following The Duration Of Their Sentence, Adam Lamparello

Adam Lamparello

No abstract provided.

Déjà Vu: From Comic Books To Video Games: Legislative Reliance On “Soft Science” To Protect Against Uncertain Societal Harm Linked To Violence V. The First Amendment, Terri R. Day, Ryan C.W. Hall Dr.

Terri R. Day

This article discusses the weaknesses and limitations of social science evidence to prove that the virtual world of violent video games causes any real world harm. The Supreme Court, in its next term, will consider the constitutionality of California’s ban on the sale and rental of violent video games to minors. The controversy on violent video games is the latest legislative attempt to ban access and distribution of violent materials to children, reminiscent of the comic books debate over sixty years ago. This paper goes beyond a discussion of the First Amendment obstacles to violent video game restrictions. It focuses …

Inheriting Inequality: Wealth, Race, And The Laws Of Succession, Palma Joy Strand

palma joy strand

The article begins by documenting deep inequality in the form of Black-White wealth disparities: While the overall wealth distribution in the United States is highly unequal from both historical and international perspectives, racial wealth disparities are particularly acute, with median Black net worth approximately a tenth of median White net worth (as compared to median Black income that is approximately two-thirds of median White income). Next, the article ties the perpetuation of this inequality to current inheritance law. It then confronts this inequality as a civil rights issue in terms of its social effects, its historical causes, and legal avenues …

Shift Happens: The Supreme Court Of The United States’ Shifting Anti-Discrimination Rhetoric, Theresa M. Beiner

Theresa M. Beiner

The United States Supreme Court's discourse on discrimination affects how fundamental civil rights -- such as the right to be free from gender and race discrimination B are adjudicated and conceptualized in this country. Shortly after Congress=s passage of Title VII of the Civil Rights Act of 1964, the Court established precedent that assumed discrimination, absent some other compelling explanation for employer or government conduct. Over time, however, that presumption has dissipated and today, the Court actually presumes non-discrimination absent some evidence that shows an employer or governmental actor was intentionally discriminating. This paper will describe the shift in the …