Digital Commons Network^™

Pronouns On The Clock: The Eleventh Circuit’S Broad Limitation Of Teacher Speech In Wood V. Florida Department Of Education, Carter E. Pannell

Mercer Law Review

Few settings test the limits of free speech more sharply than public schools, where questions of personal identity, government authority, and constitutional rights often intersect. Because the government has an interest in regulating what its employees do and say, First Amendment protections afforded to government employees are diluted in comparison to those afforded to private citizens. A contemporary example of this tension is the question of whether the government may regulate a public-school teacher’s use of pronouns or titles in their own classroom.

In 2023, Florida enacted a statute forbidding teachers from using pronouns or titles that differ from the …

Race, The Academy, And The Constitution Of The War On Drugs, Bennett Capers, Jeffrey Bellin

Faculty Publications

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions.

This Review …

Race, The Academy, And The Constitution Of The War On Drugs, I. Bennett Capers, Jeffrey Bellin

Faculty Scholarship

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions. 

This Review …

Direct Democracy: Ohio Style, Steven H. Steinglass, Ernest M. Oleksy

Cleveland State Law Review

This Article is an expansion of comments by Steven H. Steinglass at a Symposium on Democracy sponsored by the Cleveland State Law Review and held on October 27, 2023. The Symposium looked broadly at threats to democracy, but the panel on which he participated focused more narrowly on the Ohio Constitution and Democracy. The Article reviews the history of direct democracy in Ohio with an emphasis on the constitutional initiative. Part I of this Article discusses the historical origins of direct democracy in Ohio and the iconic Ohio Constitutional Convention of 1912 that proposed Ohio’s direct democracy amendment. Particular …

Aba-Mandated Instruction On Racism And Recent State Legislation Banning Such Instruction In University Classrooms: “Jim Crow” Redux, Bernard K. Freamon

Law Faculty Scholarship

No abstract provided.

Aba-Mandated Instruction On Racism And Recent State Legislation Banning Such Instruction In University Classrooms: “Jim Crow” Redux, Bernard K. Freamon

Roger Williams University Law Review

No abstract provided.

Section 1983 & Qualified Immunity: Qualifying The Death Of Due Process And America's Most Vulnerable Classes Since 1871. Can It Be Fixed?, Gabrielle Pelura

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

Janus And The Future Of Collective Bargaining: Rhetorically Predicting A First Amendment Right To Negotiation, Thomas J. Freeman, Aaron Mckain, Destynie J.L. Sewell

William & Mary Business Law Review

The importance of the U.S. Supreme Court ruling in Janus v. American Federation of State, County, and Municipal Employees has been widely recognized for its effect on reducing the power and influence of public unions. A close reading of the majority opinion provides a clue that compulsory collective bargaining itself may be settling into the court’s crosshairs. Collective bargaining is an important tool, by which labor can reduce the often-inherent power imbalance it has with ownership and management. Yet as this Article outlines, the interests of individual workers can often be at odds with those other workers workers, particularly those …

The Macguffin And The Net: Taking Internet Listeners Seriously, Derek E. Bambauer

University of Colorado Law Review

To date, listeners and readers play little more than bit parts in First Amendment jurisprudence. The advent of digital networked communication over the Internet supports moving these interests to center stage in free speech doctrine and offers new empirical data to evaluate the regulation of online information. Such a shift will have important and unexpected consequences for other areas, including ones seemingly orthogonal to First Amendment concerns. This Essay explores likely shifts in areas that include intellectual property, tort, and civil procedure, all of which have been able to neglect certain free speech issues because of the lack of listener …

Emoluments, Zones Of Interests, And Political Questions: A Cautionary Tale, Jed Handelsman Shugerman, Gautham Rao

Faculty Scholarship

The “political question” doctrine is hotly contested in 2018, and perhaps on the verge of its biggest reversal since the Baker v. Carr revolution. Later this year, we will learn if the Supreme Court in Whitford v. Gill will regard extreme partisan gerrymandering as a violation of the First and Fourteenth Amendments, rather than as a nonjusticiable political question.¹ It turns out that another high-profile case in the lower courts illuminates the use and misuse of the political question doctrine. The Emoluments cases, and in particular, the Southern District of New York’s dismissal of CREW v. Trump, ^{2 …}

Emoluments, Zones Of Interests, And Political Questions: A Cautionary Tale, Jed Handelsman Shugerman, Gautham Rao

UC Law Constitutional Quarterly

As the Supreme Court addresses partisan gerrymanders in 2018, the "political question" doctrine is facing intense scrutiny. Will the Court tackle the problem or punt once again? It turns out that other high-profile cases in the lower courts offer a perspective on the political question doctrine. The Emoluments cases offer a cautionary tale about the use of the political question doctrine, and how the political question doctrine is too often an unconsciously tempting escape forjudges facing challenging legal questions.

The dismissal by the Southern District of New York in CREW v. Trump avoided reaching the merits of the emoluments claims …

Incredible Lies, Catherine J. Ross

University of Colorado Law Review

No abstract provided.

Legislating Against Lying In Campaigns And Elections, Joshua S. Sellers

Oklahoma Law Review

No abstract provided.

Protecting Hatred Preserves Freedom: Why Offensive Expressions Command Constitutional Protection, Andrew P. Napolitano

Journal of Law and Policy

The First Amendment is not the guardian of taste. Instead, the U.S. Constitution wholeheartedly protects freedom of thought and expression, even if generated and defined by hatred, as long as that expression does not produce immediate lawless violence. Although free speech may lead to tenuous relationships or uncomfortable debates, it must be defended unconditionally. Too many politicians and lawmakers believe that the freedom of speech protected by the First Amendment attaches only to those ideas and expressions that they approve of; this is not so. This article argues that the Founders intended the First Amendment's free speech principle as a …

Supervised Release, Sex-Offender Treatment Programs, And Substantive Due Process, Max B. Bernstein

Fordham Law Review

This Note argues that mandated PPG testing should be eliminated as a condition of federal supervised release. The test infringes on a constitutionally protected liberty interest against unwanted bodily intrusions and, as only the Second Circuit has held, any condition of supervised release that infringes on a constitutionally protected right may be mandated only where it is narrowly tailored to serve a compelling government interest. Because there are a number of viable, less intrusive alternatives, PPG testing as it stands today is not narrowly tailored enough to serve a compelling government interest.

The European Constitution, The Treaty Of Amsterdam, And The Search For Community, Ian Ward

Georgia Journal of International & Comparative Law

No abstract provided.

The Jury And Participatory Democracy, Alexandra Lahav

Faculty Articles and Papers

Citizens directly participate in the civil justice system in three ways. They can be sued, they can sue another, and they can serve on a jury. Beyond that involvement, the court system is peopled by professionals: judges, lawyers, clerks, and administrators. This Essay considers the reasons our society might want citizens to directly participate as adjudicators in the third branch.

False Statements V. Free Debate: Is The First Amendment A License To Lie In Elections?, Simon A. Rodell

Florida Law Review

No abstract provided.

Such Visible Fiction: The Expansion Of Scott V. Harris To Prisoner Eighth Amendment Excessive Force Claims, Nina Frank

Cardozo Law Review

No abstract provided.

Fourth Amendment Federalism And The Silencing Of The American Poor, Andrew E. Taslitz

Chicago-Kent Law Review

In Virginia v. Moore, police officers searched Moore incident to an arrest for a minor traffic infraction for which Virginia statutory law in fact prohibited arrest. The officers found cocaine on Moore's person, arresting him for that crime too. The United States Supreme Court ultimately found that the arrest for the traffic infraction and the subsequent search were valid under the federal Constitution's Fourth Amendment. Central to the Court's reasoning was its insistence that the state statute was irrelevant. Any contrary conclusion, explained the Court, would wrongly make the Fourth Amendment's meaning vary from place to place. Professor Taslitz …

Incapacitation Through Maiming: Chemical Castration, The Eighth Amendment, And The Denial Of Human Dignity, John F. Stinneford

UF Law Faculty Publications

This year marks the tenth anniversary of California's enactment of the nation's first chemical castration law. This law requires certain sex offenders to receive, as part of their punishment, long-term pharmacological treatment involving massive doses of a synthetic female hormone called medroxyprogesterone acetate (MPA). MPA treatment is described as chemical castration because it mimics the effect of surgical castration by eliminating almost all testosterone from the offender's system. The intended effect of MPA treatment is to alter brain and body function by reducing the brain's exposure to testosterone, thus depriving offenders of most (or all) capacity to experience sexual desire …

The Middle Class Fourth Amendment, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Criminal Procedure—Good Faith, Big Brother, And You: The United States Supreme Court's Latest Good Faith Exception To The Fourth Amendment Exclusionary Rule. Arizona V. Evans, 115 S. Ct. 1185 (1995)., Elisa Masterson White

University of Arkansas at Little Rock Law Review

No abstract provided.

Waiver Of Constitutional Issues In Criminal Cases: Confusion In The Illinois Supreme Court, 11 N. Ill. U. L. Rev. 55 (1990), Timothy P. O'Neill

UIC Law Open Access Faculty Scholarship

No abstract provided.

Judge Hand's History: An Analysis Of History And Method In Jaffree V. Board Of School Commissioners Of Mobile County, Michael Kent Curtis

West Virginia Law Review

In Jaffree v. Board of School Commissioners, the United States District Court for the Southern District of Alabama upheld, against a constitutional challenge, teacher led school prayers. In the companion case of Jaffree v. James, the court upheld the Alabama Prayer Law which permitted state sanctioned prayers in public schools. The religious exercises and the Prayer Law were, of course, unconstitutional when viewed in light of decisions of the United States Supreme Court holding that the first amendment erected a wall of separation between church and state. When faced with direct and settled precedent, the lower federal courts generally follow …

The Student As University Resident, William W. Van Alstyne

Faculty Scholarship

This examination argues that the position that a student’s rights are determined by whether he lives on or off-campus is unraveled by the institution’s position as a state actor. This article disposes of the notion that the university is equivalent to a landlord in property and contract rights and discusses how this distinction affects students’ rights.