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Dna Fingerprinting And The Need For A National Data Base, Joann Marie Longobardi

Fordham Urban Law Journal

DNA fingerprinting, at the time of publication a new concept, has dramatic implications in both the civil and criminal contexts. The author argues that a national DNA data base should be created. He contends that a DNA data base would be a powerful tool for law enforcement as well as defense attorneys, and that the danger to privacy rights is outweighed by the benefits to society. The author argues that taking DNA is neither invasive nor does it provide substantive information to the authorities. In sum, the author states that a national DNA data base with sufficient safeguards should be …

The First Amendment And Paid Initiative Petition Circulators: A Dissenting View And A Proposal, Daniel Hays Lowenstein, Robert M. Stern

UC Law Constitutional Quarterly

No abstract provided.

Constitutional Defenses Against Punitive Damages: Down But Not Out, Nicholas K. Kile

Indiana Law Journal

No abstract provided.

The Beggar's Free Speech, Anthony J. Rose

Indiana Law Journal

No abstract provided.

Aids, Astrology, And Arline: Towards A Causal Interpretation Of Section 504, Gary S. Lawson

Faculty Scholarship

Section 504 of the Rehabilitation Act of 1973 provides that ‘[n]o otherwise qualified individual with handicaps shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under [any federal or federally funded program].’1 In School Board v. Arline,2 the Supreme Court held that a school teacher with a history of infectious tuberculosis was an ‘individual with handicaps' protected by section 504,3 and that the determination of whether she was ‘otherwise qualified’ to teach elementary school required a sound medical assessment of the risks …

A Republic...If You Can Keep It, Hans A. Linde

UC Law Constitutional Quarterly

No abstract provided.

Braswell V. United States: The Collective Entity Doctrine And The Compelled Testimony Standard, David N. Lathrop

UC Law Constitutional Quarterly

No abstract provided.

Qualified Immunity In Section 1983 Cases: The Unanswered Questions, Kit Kinports

Faculty Scholarship

Part I of this Article describes the general policies underlying qualified immunity and the Court's decisions defining the scope of the defense. Part II then addresses two answered questions concerning Harlow v. Fitzgerald's impact on the substantive content of the qualified immunity defense: Is immunity available to the defendant who actually knows that her conduct is infringing the plaintiff's constitutional rights, even if the law governing those rights is not yet clearly established? And should a court take into account the nature of the defendant's governmental responsibilities and other circumstances surrounding her conduct in determining whether the right she …

Freedom Of Expression: Is It All Just Talk?, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

In this article Wayne MacKay argues that effective interpretation of section 2 of the Charter of Rights and Freedoms requires the weighing of real world impacts beyond the traditional liberal parameter of judicial decisions. The usual judicial unwillingness to acknowledge "freedoms" as opposed to "rights" limits governmental legal action while not recognizing political and economic barriers to freedom of expression. The trend toward limiting protected expression both at the definitional stage and through section 1 reasonable limits reflects this cautious approach.This article examines who the early beneficiaries of freedom of expression have been: those affected by criminal sanctions and those …

Are Constitutional Cases Political?, Brian Slattery

Articles & Book Chapters

To argue that constitutional adjudication is political does not carry us very far unless we go on to specify what the pursuit of politics entails, the goals it seeks to attain, and the basic principles informing its practice. The word political has no clearly defined meaning in modern usage. Rather, it has the chameleon-like capacity to change colours so as to blend with a variety of different conceptual backgrounds. Of course, if we adopt an Aristotelian notion of politics as the pursuit of the common good of a community and the individual goods of its members, we can agree that …

Scholars' Reply To Professor Fried, Yale Kamisar, Lee C. Bollinger, Judith C. Areen, Barbara A. Black

Articles

As Solicitor General of the United States, Charles Fried, like any good advocate, was often in the position of attempting to generate broad holdings from relatively narrow and particularistic Supreme Court decisions. This was especially true in affirmative action cases. There, the Department of Justice argued that cautious precedents actually stood for the broad proposition that measures designed to put members of disadvantaged groups on a plane of equality should, for constitutional purposes, be treated the same as measures intended to stigmatize or subordinate them. The Supreme Court, however, has consistently rejected this reading of its precedents and the broad …

Moral Knowledge And Constitutional Adjudication, Richard Kay

Faculty Articles and Papers

No abstract provided.

A Two-Tiered Theory Of Consolidation And Separation Of Powers, David S. Yassky

Elisabeth Haub School of Law Faculty Publications

This Note explores the jurisprudential implications of the New Deal watershed and elaborates a post-New Deal theory of allocation of governmental power. Part I begins with a discussion of the Federalist theory of separation of powers. For the Federalists, two conditions ensured an effective separation. First, governmental branches must be institutionally independent; each must be free from control by the others. Second, the branches must be functionally specialized; each must wield a distinct component of governmental power, so that the assent of all three is required for government action.

Until the New Deal, the Supreme Court incorporated this theory into …

State Sovereignty And The Tenth And Eleventh Amendments, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Suing A State In Federal Court Under A Private Cause Of Action: An Eleventh Amendment Primer, Donald L. Boren

Cleveland State Law Review

A major obstacle facing an attorney, whose client is suing a state in federal court under a right created by a federal law, is the restraints placed on the federal court's jurisdiction by the eleventh amendment to the United States Constitution. The purpose of this article is to provide assistance through this wonderland of eleventh amendment jurisprudence. This article examines three major eleventh amendment issues, plus-and perhaps more importantly-methods of avoiding eleventh amendment litigation. Section I of the article examines the historical evidence on whether the amendment was intended to apply to cases in which a citizen of a state …

Slapp Suits: A Slap At The First Amendment, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

Strategic Lawsuits Against Public Participation, or SLAPP suits, as they are commonly called, are a growing nationwide phenomenon which imperil the protection afforded by the petition clause of the first amendment to the United States Constitution. These suits also implicate fundamental freedom guarantees of the various state constitutions. My focus today, however, will be largely on the first amendment.

The Constitution Of 1787: A Meditation, Jonathan Van Patten

Faculty Publications

No abstract provided.

Foreword: The Once "New Judicial Federalism" & Its Critics, Ronald K.L. Collins

Washington Law Review

The first critic of the once "new judicial federalism" is also the person credited with being its "intellectual godfather"—Hans Linde. Back in the pristine years of this constitutional experiment, then Professor Linde warned: A state court cannot undertake "to evolve an independent jurisprudence under the state constitution ... by searching ad hoc for some plausible premise in the state constitution only when federal precedents will not support the desired result." Perhaps his influence in this area is attributable to the fact that he is, in a certain sense, both critic and "crusader." Of course, the claim needs to be explained. …

The Stop And Frisk Doctrine In Washington And The Rise And Fall Of Independent State Constitutional Analysis, Kurt Walters

Washington Law Review

As the United States Supreme Court expanded the scope and intensity limits of the stop and frisk doctrine, the Washington Supreme Court, in 1984, applied independent state constitutional analysis and held that article I, section 7 of the Washington State Constitution provides greater privacy protection in stop and frisk cases than the United States Constitution. Since then, however, the Washington court has abandoned its reliance on article I, section 7 in the stop and frisk context. This Comment examines this transition and concludes that the federal stop and frisk doctrine may not adequately protect fundamental privacy rights, and that the …

State Constitutional Remedy Provisions And Article I, Section 10 Of The Washington State Constitution: The Possibility Of Greater Judicial Protection Of Established Tort Causes Of Action And Remedies, Janice Sue Wang

Washington Law Review

Several state courts interpret their states' constitutional remedy provisions as justifying heightened judicial scrutiny of legislative alterations in tort law. This confers greater protection of tort causes of action and remedies established at the time of the state constitution's adoption. This Comment considers whether article I, section 10 of the Washington constitution can support such an interpretation. Additionally, the author discusses the existing interpretations of other states' remedy provisions and suggests a heightened scrutiny model that best balances the interest in retaining already recognized tort remedies against the interest in fostering positive change.

Review Of Red, White, And Blue: A Critical Analysis Of Constitutional Law By Mark Tushnet, David B. Lyons

Faculty Scholarship

Mark Tushnet's new book offers no such counsel. Mainly a critique of interpretative theories, its conclusions are profoundly skeptical. Tushnet's central claim is that judicial review and constitutional theory cannot possibly perform their assigned functions, and that liberalism is to blame. This review will focus on those facets of the book.

Church Autonomy In The Constitutional Order - The End Of Church And State?, Gerard V. Bradley

Journal Articles

"Separation of church and state" is right up there with Mom, apple pie, and baseball in American iconography. If everyone agrees on separation of church and state, why does the relationship between religion and public life so vex, excite, and confound us? Part of the reason is that church-state separation, although it is the historical achievement of societies decisively shaped by a Christianity that was itself decisively shaped by Judaism, is a commodious concept.

But "separation of church and state" is not contentless, and our conclusive agreement on it, I submit, provides a valuable common frame of reference in an …

Ricks V. State: Big Brother Has Arrived In Maryland, Thomas M. Messana

Maryland Law Review

No abstract provided.

The Child Porn Myth, Lawrence A. Stanley

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Indian Consent To American Government, Richard B. Collins

Publications

No abstract provided.

Political Law, Legalistic Politics: A Recent History Of The Political Question Doctrine, Robert F. Nagel

Publications

No abstract provided.

The Senator And The Constitution: An Interview With Orrin G. Hatch, David Skover, Ronald Collins

Faculty Articles

Modern constitutional scholarship tends to focus exclusively on the role of the judiciary in the development of constitutional law. Recognizing that this "court-positivist" outlook leaves substantial gaps in constitutional literature, the authors turn their scholarly attention to legislative and executive contributions to the field. The subject of their inquiry is U.S. Senator Orrin G. Hatch, who has chaired the Constitutional Subcommittee of the Senate Judiciary Committee, and who is one of the Senate's most recognized constitutional commentators. The authors interviewed Senator Hatch about his positions on various issues in constitutional law and theory, and annotated the interview extensively to analyze …

More Than A Mouthful: Libel And The Restaurant Review, Amy G. Borress

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Constitutional Law: A New Suspect Class: A Final Reprieve For Homosexuals In The Military, Denise Dunnigan

Oklahoma Law Review

No abstract provided.

Constitutional Law - The Constitutionality Of The Adolescent Family Life Act: An Analysis Of Bowen V. Kendrick And Its Impact On Current Establishment Clause Jurisprudence, Thomas G. Walker

Campbell Law Review

This Note has four objectives: first, to examine the facts before the Court in Bowen; second, to provide a brief survey of several significant cases in the Establishment Clause arena; third, to critique the use of the traditional Lemon v. Kurtzman analysis applied by the Bowen Court; and fourth, to analyze the implications of the Bowen holding on Establishment Clause jurisprudence.