Law Commons^™

“Reasoning-Lite” In The Violent Video Game Case, Alan Garfield

Alan E Garfield

One might have expected that the Supreme Court’s recent decision in the violent video game case, Brown v. Entertainment Merchants Ass’n, would have been a thoughtful balancing of society’s competing interests in protecting freedom of speech and protecting children from harm. After all, the Supreme Court had held decades earlier that the government could deny minors access to soft-porn, or what the Court called “girlie magazines.” So one could have assumed the Court would seriously consider California’s claim that minors also needed sheltering from the grittier world of violent video game rapes, beheadings, and ethnic cleansings. Yet, as Justice Scalia’s …

The Constitutionality Of The Patient Protection And Affordable Care Act In The Courts Of Appeals, Mel Cousins

Mel Cousins

Having undergone an extensive process of political discussion and debate, the ACA (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with over 20 different cases from both states and organizations and individuals having been initiated. The challengers argue that the Act lacks a constitutional basis and/or infringes on their constitutional rights. These cases involve a fascinating intersection of legal, political and policy issues and, regardless of the outcome, will have important implications for the future direction of US health care policy. There have now been four decisions of the courts of appeal on the …

Perfectly Legal To Mandate The Purchase Of Insurance, Alan E. Garfield

Alan E Garfield

No abstract provided.

Gps Tracking And The Fourth Amendment, Alan E. Garfield

Alan E Garfield

No abstract provided.

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Diane Hoffmann

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

Church Autonomy Versus Civil Rights, Alan E. Garfield

Alan E Garfield

No abstract provided.

Pennsylvania Constitutional Conventions: Discarding The Myths, John Gedid

John L. Gedid

No abstract provided.

Aep V. Connecticut And The Future Of The Political Question Doctrine, James R. May

James R. May

No abstract provided.

The Constitution And Economic Policy, Alan E. Garfield

Alan E Garfield

No abstract provided.

Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow

Rebecca E Zietlow

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look …

A Submission To The Senate Legal And Constitutional Committee On The Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (Cth), Matthew Rimmer

Matthew Rimmer

As an intellectual property expert, I am of the view that the much threatened litigation by the Tobacco Industry against the proposed plain packaging for tobacco products is somewhat vexatious.Both the Tobacco Plain Packaging Bill 2011 (Cth) and the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 (Cth) are clearly within the Commonwealth's legislative power and capacity; and represent an effective means of implementing some of Australia's obligations under the WHO Framework Convention on Tobacco Control.At the outset, it is worth recalling that internal documents from British American Tobacco emphasized that 'current conventions & treaties afford little protection' for tobacco …

Constitutional Environmental Rights Worldwide, James May, Erin Daly

Erin Daly

No abstract provided.

Supreme Court Decides That Clean Air Act Displaces Federal Common Law Claims For Climate Change, James R. May

James R. May

No abstract provided.

You Can Say That Again!: A Way Out Of The Compelled Commercial Speech Conundrum, Dayna B. Royal

Dayna B. Royal

In the last decade the Supreme Court has modified the compelled-speech and commercial-speech doctrines by creating a hybrid of the two—compelled-commercial speech. This nascent doctrine leaves unanswered serious questions about how it coexists with other doctrines in the First Amendment landscape.

This paper proposes a principled means to resolve these questions by drawing on an innovative behavioral-science theory called Cultural Cognition to provide a system for categorizing forced commercial-speech regulations. By establishing which test applies to determine whether regulations violate the First Amendment, this framework should help bring consistency and predictability into a murky area of First Amendment law.

Book Review Of Current Issues In Constitutional Litigation: A Context And Practice Casebook (Carolina Academic Press 2011), Christy Whitfield

Sarah E. Ricks

This is a book review of Current Issues in Constitutional Litigation: A Context & Practice Casebook (Carolina Academic Press 2011). My perspective is unique because I have worked with and watched this casebook evolve – I was assigned an early draft of the casebook as a law school student taking a constitutional litigation course, I worked as a research assistant on a later version of the casebook, and now, several years later, I have viewed the final result of the casebook as a practicing attorney. As a former law clerk and now as an attorney advisor in the beginning years …

Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow

Rebecca E Zietlow

The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look …

Cultural Cognition As A Tool To Combat The Compelled-Commercial-Speech Conundrum, Dayna B. Royal

Dayna B. Royal

In the last decade the Supreme Court has modified the compelled-speech and commercial-speech doctrines by creating a hybrid of the two—compelled-commercial speech. This nascent doctrine leaves unanswered serious questions about how it coexists with other doctrines in the First Amendment landscape. This paper proposes a principled means to resolve these questions by drawing on an innovative behavioral-science theory called Cultural Cognition to provide a system for categorizing forced commercial-speech regulations. By establishing which test applies to determine whether regulations violate the First Amendment, this framework should help bring consistency and predictability into a murky area of First Amendment law.

The Racial Metamorphosis Of Justice Kennedy, With An Eye Towards The End Of The Second Reconstruction, Luis Fuentes-Rohwer

Luis Fuentes-Rohwer

This Essay examines the recent turn in Justice Kennedy’s race jurisprudence. The shift is palpable, from a narrow and uncompromising approach to the use of race by state actors to a more nuanced and contextual understanding of the role that race plays in American society. This is no small change, best explained by Justice Kennedy’s status on the Court as a “super median.” This is a position of power and influence, as any majority coalition must count on Justice Kennedy’s vote; but more importantly, it is also a position of true independence. Justice Kennedy entertains his idiosyncratic and very personal …

Funeral Protests, Privacy, And The Constitution: What Is Next After Phelps?, Mark Strasser

Mark Strasser

In Snyder v. Phelps, the United States Supreme Court struck down a damages award against Reverend Fred Phelps Sr. and the Westboro Baptist Church for picketing a funeral. In a relatively short opinion, the Court suggested that the legal issues were straightforward—the First Amendment precludes the imposition of tort damages when the comments at issue involve matters of public concern. Yet, the Court failed to explain whether those comments that were not of public concern were somehow immunized by those that were, and also failed to explain how the holding fits into the current defamation and privacy jurisprudence. The opinion …

Hey Uncle Sam, Can You Spare A Couple Billion?: Examining The Constitutionality Of A State Bankruptcy Chapter, David E. Solan

David E Solan

During February 2011 the prospect of creating a state bankruptcy chapter burst onto the national conversation. This debate largely centered on the necessity of state bankruptcy as a means of averting state bailouts, while some commentators vaguely invoked the need to tread gingerly on state prerogatives under the 10th Amendment. However, the constitutionality of bankruptcy-for-states demands closer scrutiny given that the Supreme Court’s recent 10th Amendment jurisprudence has evolved in the direction of protecting state sovereignty.

The Article examines a pair of cases from the 1930s that contested the constitutionality of municipal bankruptcy, and argues that the principles handed down …

Due Process And Fundamental Rights, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Jewish Legal Theory And American Constitutional Theory: Some Comparisons And Contrasts, Samuel J. Levine

Samuel J. Levine

In this article, Levine explores some of the ways in which Jewish law may shed light on issues in American constitutional theory. While acknowledging that there are fundamental differences between a religious legal system and a secular one, he attempts to show that certain conceptual similarities between American law and Jewish law allow for meaningful yet cautious comparison of the two systems. Part I provides a broad historical and analytical overview of interpretation in Jewish law. Part II of the Article offers a specific conceptual framework for comparing Jewish law with American law. Levine considers questions of flexibility in legal …

Why Should A President Have To Be A Natural-Born Citizen, Alan E. Garfield

Alan E Garfield

No abstract provided.

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), Garrett Power

Garrett Power

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …

Court's Ruling Fiercely Un-Madisonian, Alan E. Garfield

Alan E Garfield

No abstract provided.

Limits On Preemption And Punitive Damages: Can They Be Related?, Peter Zablotsky

Peter Zablotsky

No abstract provided.

Bad Science Makes Bad Law: How The Deference Afforded To Psychiatry Undermines Civil Liberties, Samantha Godwin

Samantha Godwin

Courts and lawmakers trust psychiatric expertise when making judicial and public policy decisions concerning mental health, but is this trust well placed? This paper adopts a philosophy of science approach informed by medical research to evaluating the validity of psychiatric classification. This provides the basis for an interdisciplinary critical analysis of civil commitment law and use of psychiatric expert witnesses in light of legal evidence standards. This analysis demonstrates that involuntary civil commitment as it now stands is incompatible with broader due process and civil rights concerns and affords an unjustifiable evidentiary status to psychiatric diagnosis.

Lee V. Weisman: Whither The Establishment Clause And The Lemon V. Kurtzman Three Pronged Test?, Thomas A. Schweitzer

Thomas A. Schweitzer

No abstract provided.

Recent Developments At The Juncture Of The Political Question Doctrine And Climate Litigation Law, James R. May

James R. May

This short essay does three things. First, it provides a primer on the most recent case developments at the juncture of the climate litigation and the political question doctrine. Second, it hazards some discussion about how the Supreme Court might engage the political question issue in Connecticut v. American Electric Power Co., Civ. Action No. 10-174. It ends with some concluding thoughts about the impact that litigation has on climate policy.

Sexual Reorientation, Elizabeth M. Glazer

Elizabeth M Glazer

There has been a recent shift in the political and legal treatment of bisexuals. Since Ruth Colker, Naomi Mezey, and Kenji Yoshino began writing about the phenomenon of bisexual erasure and the resulting invisibility of the bisexual from sexual orientation law and the LGBT rights movement, something strange has happened. Bisexuality is suddenly hypervisible. And not just on Glee or in The Girl with the Dragon Tattoo. Or even in the 2010 national sex survey reporting that of 7% of the population identifying as non-heterosexual, 40% of the men and a large majority of the women surveyed identified as bisexual. …