Constitutional Law Commons^™

Facial Challenges And Federalism, Gillian E. Metzger

Faculty Scholarship

This Essay addresses the question of whether challenges to legislation as exceeding Congress' powers should be assessed on a facial or an as-applied basis, a question that rose to the fore in the Supreme Court's recent decision in Tennessee v. Lane. The Essay begins by arguing that what distinguishes a facial challenge is that it involves an attack on some general rule embodied in the statute. Such challenges can take a broader or narrower form, and thus the terms 'facial" and "as-applied" are best understood as encompassing a range of possible challenges rather than as mutually exclusive terms. The …

Constitutional Conversations And New Religious Movements: A Comparative Case Study, Leigh H. Greenhaw, Michael H. Koby

Vanderbilt Journal of Transnational Law

Using the metaphor of a constitutional conversation to compare the treatment of a relatively new and unpopular religion by the legal systems of the United States, Russia, and Spain, this Article examines the methodology by which laws affecting religion are made and enforced. It uses as a case study the interaction of the Jehovah's Witnesses with the legal system of the United States, comparing it with more recent interactions in Russia and Spain. The Authors argue that while the experience in the United States was profoundly influenced by a common-law methodology, the experience in two civil-law countries, Russia and Spain, …

True Integration: Advancing Brown's Goal Of Educational Equity In The Wake Of Grutter, Lia Epperson

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Book Review, Mark C. Modak-Truran

Journal Articles

RELIGION ON TRIAL makes the historical debates about the religion clauses accessible to a broad audience. In addition, it properly links issues of free exercise of religion to issues about fundamental rights in a manner that is usually missed by legal scholars and political scientists. Consequently, this book would be a good addition to undergraduate, graduate, and law school courses on the religion clauses or on law and religion.

Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton

Publications

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling - specifically, a public law school's interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well.

The switch to instrumental justifications for affirmative action appears a strategic response to the Court's narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning …

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

Section 7 And The Politics Of Social Justice, Margot Young

All Faculty Publications

This paper examines the transformative potential of section 7 of the Canadian Charter of Rights and Freedoms and its potential usefulness in the struggle against social and economic injustice central to Canadian society. Can section 7 of the Charter encompass the protection of social and economic rights? In other words, can section 7 be interpreted to capture the progressive goal of economic redistribution? Three separate issues are considered, each providing different perspectives on the issue. First jurisprudence (doctrine) is considered, i.e. how section 7 can encompass substantive claims to economic redistributive justice. Secondly, the institutional appropriateness and justiciability of socio-economic …

Equal Protection For Homosexuals: Why The Immutability Argument Is Necessary And How It Is Met, Kari Balog

Cleveland State Law Review

The immutability factor is possibly the most disputed of the four factors of the Frontiero test, a test laid out by the Supreme Court to identify suspect classifications. Doctors and scientists have spent years studying sexual orientation, attempting to find the cause of homosexuality in order to determine whether or not sexual orientation may be changed. Unfortunately, the many studies have not provided a definitive answer to the question of immutability. This Note considers many of the psychological, hormonal, and more recent genetic studies and determines what the medical and scientific evidence means for homosexuals in their pursuit for equal …

Congress, Cave Bugs, Courts And The Commerce Clause: Did The Fifth Circuit Figure Out How To Regulate Intrastate Activity Under The Endangered Species Act, John Gregory Koch

Villanova Environmental Law Journal

No abstract provided.

Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein

Faculty Scholarship

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …

Does A Diverse Judiciary Attain A Rule Of Law That Is Inclusive? What Grutter V. Bollinger Has To Say About Diversity On The Bench, Sylvia R. Lazos

Scholarly Works

Race matters, but judges and courts have failed to fashion a rule of law that is inclusive of all racial perspectives and realities in the United States. The reason for this dismal performance lies in how predominantly White judges, and therefore courts, conceptualize race. This article illustrates this proposition by analyzing the Rehnquist Court's race relations jurisprudence in three Supreme Court decisions handed down in 2003: Grutter v. Bollinger,Gratz v. Bollinger,and Georgia v. Ashcroft.Even as the United States Supreme Court entered increasingly complex areas of race relations, the Court continued to apply a simplistic concept of how race functions. The …

Between Dependency And Liberty: The Conundrum Of Children’S Rights In The Gilded Age, David S. Tanenhaus

Scholarly Works

Although legal scholars often assume that the history of children's rights in the United States did not begin until the mid twentieth century, this essay argues that a sophisticated conception of children's rights existed a century earlier, and analyzes how lawmakers articulated it through their attempts to define the rights of dependent children. How to handle their cases raised fundamental questions about whether children were autonomous beings or the property of either their parents and/or the state. And, if the latter, what were the limits of parental authority and/or the power of the state acting as a parent? By investigating …

Essay: A Search For Reason In Fairy Tales, John F. Hernandez

Faculty Articles

A fairy tale: Once upon at time (not so very long ago), in a land (not so far away) lived a beautiful queen (well, actually a "runner up ") with a golden voice. The beautiful queen reined over her people and sang of sunshine. Some of the queen's subjects had felt that they were not treated fairly by the laws of the land and sought to have their unfair treatment prohibited. Apparently, this caused the queen to develop a fear and hatred for these subjects. These subjects had done nothing to the queen. Yet, the queen made it her mission …

The Chimera Of The Real And Substantial Connection Test, Joost Blom, Elizabeth Edinger

All Faculty Publications

This paper was first presented at a symposium held at the University of British Columbia Faculty of Law on November 5 and 6, 2004 to honour the late Mr. Justice Kenneth Lysyk, a former faculty member and Dean of Law at U.B.C. For this paper we chose a topic that combines both of Ken Lysyk's favourite subjects. We set out to examine how the Supreme Court of Canada has used the "real and substantial connection" test in the conflict of laws and in related areas of constitutional law. This test has been adopted for a variety of purposes. We suggest …

Evidence—Sixth Amendment And The Confrontation Clause—Testimonial Trumps Reliable: The United States Supreme Court Reconsiders Its Approach To The Confrontation Clause. Crawford V. Washington, 541 U.S. 36 (2004)., Kristen Sluyter

University of Arkansas at Little Rock Law Review

No abstract provided.

Caging Animal Advocates' Political Freedoms: The Unconstitutionality Of The Animal And Ecological Terrorism Act, Andrew N. Ireland Moore

Animal Law Review

The animal advocacy movement is facing another obstacle, resulting from the creation of the Animal and Ecological Terrorism Act (AETA). The Act seeks to create harsh penalties including a Terrorist Registry for acts performed by the Animal Liberation Front (ALF) and ALF-type actors. In addition, the proposed legislation will affect animal advocates not involved with the ALF. However, the model legislation, as written, must pass Constitutional scrutiny. This paper argues that the proposed Animal and Ecological Terrorism Act is unconstitutional due to its infringement on the First Amendment, its overbreadth, and its vagueness.

"Sovereignty" Issues And The Church Bankruptcy Cases, David A. Skeel Jr.

All Faculty Scholarship

No abstract provided.

Managing Gerrymandering, Mitchell N. Berman

All Faculty Scholarship

Last spring, in Vieth v. Jubelirer, the Supreme Court addressed a claim of unconstitutional partisan gerrymandering for the first time since having held such claims justiciable, 18 years earlier, in Davis v. Bandemer. Vieth was a fractured decision. All nine Justices agreed that partisan gerrymandering is of constitutional moment, a substantial majority declaring that excessive partisanship is unconstitutional. The Justices also united in rejecting the particular gerrymandering test advanced in Bandemer. There agreement ended. Four Justices proposed three tests to replace the unmeetable Bandemer standard. A four-member plurality would have overruled Bandemer more completely by holding that partisan gerrymandering claims …

Justice Scalia's Constitution--And Ours, Kermit Roosevelt Iii

All Faculty Scholarship

No abstract provided.

Architectural Censorship And The Fcc, Christopher S. Yoo

All Faculty Scholarship

Most First Amendment analyses of U.S. media policy have focused predominantly on “behavioral” regulation, which either prohibits the transmission of disfavored content (such as indecent programming) or mandates the dissemination of preferred content (such as children’s educational programming and political speech). In so doing, commentators have largely overlooked how program content is also affected by “structural” regulation, which focuses primarily on increasing the economic competitiveness of media industries. In this Article, Professor Christopher Yoo employs economic analysis to demonstrate how structural regulation can constitute a form of “architectural censorship” that has the unintended consequence of reducing the quantity, quality, and …

Originalism And Formalism In Criminal Procedure: The Triumph Of Justice Scalia, The Unlikely Friend Of Criminal Defendants?, Stephanos Bibas

All Faculty Scholarship

In Crawford v. Washington, Justice Scalia's majority opinion reinterpreted the Confrontation Clause to exclude otherwise reliable testimonial hearsay unless the defendant has been able to cross-examine it. In Blakely v. Washington, Justice Scalia's majority opinion required that juries, not judges, find beyond a reasonable doubt all facts that trigger sentences above ordinary sentencing-guidelines ranges. Crawford and Blakely are prime case studies in the strengths, weaknesses, and influence of originalism and formalism in criminal procedure. Crawford succeeded because it cleared away muddled case law, laid a strong foundation in the historical record, and erected a simple, solid, workable rule. …

The Constitution Glimpsed From Tule Lake, Patrick O. Gudridge

Articles

No abstract provided.

Retaliation, Deborah Brake

Articles

This Article takes a comprehensive look at retaliation and its place in discrimination law. The Article begins by examining current social science literature to understand how retaliation operates as a social practice to silence challenges to discrimination and preserve inequality. Then, using the recent controversy over whether to imply a private right of action for retaliation from a general ban on discrimination as a launching point, the Article theorizes the connections between retaliation and discrimination as legal constructs, and contends that retaliation should be viewed as a species of intentional discrimination. The Article argues that situating retaliation as a practice …

Revisiting Robinson: The Eighth Amendment As Constitutional Support For Theories Of Criminal Responsibility, Jeffrey A. Rowe

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Crawford V. Washington: The Admissibility Of Statements To Physicians And The Use Of Closed-Circuit Television In Cases Of Child Sexual Abuse, Jon Simon Stefanuca

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Deconstructing Davis V. United States: Intention And Meaning In Ambiguous Requests For Counsel, David Aram Kaiser, Paul Lufkin

UC Law Constitutional Quarterly

The authors discuss the United States Supreme Court's decision in Davis v. United States, 512 U.S. 452 (1994), arguing that its holding-that police officers do not have to cease questioning a criminal suspect who utters an ambiguous request for counsel during custodial interrogation-depends on concepts of interpretation that have been discredited by the deconstructionist theory of Jacques Derrida and subsequent literary critics.

Derrida criticized theoretical movements, such as structuralism, that ignored the role of ambiguity in language. In turn, reacting to Derrida's emphasis on the indeterminacy of meaning, other literary critics sought criteria for "objective" interpretation, the search for which …

Bakke, Grutter, And The Principle Of Subsidiarity, Peter Widulski

UC Law Constitutional Quarterly

When seeking to civilly commit an inmate nearing release from prison, states often adopt a formulation of mental responsibility for criminal behavior that is inconsistent with the standard on which they rely when rebutting a criminal insanity defense. Defendants are permitted to raise certain incapacity defenses in one context, and yet they are prohibited from advancing those same defenses in another. As a result, many states may seek criminal punishment on the theory that a defendant is legally sane and then later argue that the same person has a serious mental abnormality characterized by a propensity to engage in criminal …

Restoring The Fourth Amendment: The Original Understanding Revisited, David E. Steinberg

UC Law Constitutional Quarterly

Supreme Court decisions regarding the Fourth Amendment are arbitrary, unpredictable and often border on incoherent. This quagmire is inspiring Fourth Amendment scholars to develop catch phrases for the chaos. And it is all because of Court attempts to apply the Fourth Amendment in situations where it was never intended to apply - particularly in police search and seizures. The Fourth Amendment was never intended to serve this role.

Schiavo And Klein (Symposium), Evan H. Caminker

Articles

When teaching federal courts, I sometimes find that students are slow to care about legal issues that initially seem picayune, hyper-technical, and unrelated to real-world concerns. It takes hard work to engage students in discussion of United States v. Klein,1 notwithstanding its apparent articulation of a foundational separation of powers principle that Congress may not dictate a "rule of decision" governing a case in federal court. A Civil War-era decision about the distribution of war spoils, one the Supreme Court has hardly ever cited since and then only to distinguish it, in cases involving takings and spotted owls? Yawn.

Grappling With The Meaning Of 'Testimonial', Richard D. Friedman

Articles

Crawford v. Washington, has adopted a testimonial approach to the Confrontation Clause of the Sixth Amendment. Under this approach, a statement that is deemed to be testimonial in nature may not be introduced at trial against an accused unless he has had an opportunity to cross-examine the person who made the statement and that person is unavailable to testify at trial. If a statement is not deemed to be testimonial, then the Confrontation Clause poses little if any obstacle to its admission.2 A great deal therefore now rides on the meaning of the word "testimonial."