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Full-Text Articles in Law
Reconceptualizing Hybrid Rights, Dan T. Coenen
Reconceptualizing Hybrid Rights, Dan T. Coenen
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In landmark decisions on religious liberty and same-sex marriage, and many other cases as well, the Supreme Court has placed its imprimatur on so called “hybrid rights.” These rights spring from the interaction of two or more constitutional clauses, none of which alone suffices to give rise to the operative protection. Controversy surrounds hybrid rights in part because there exists no judicial account of their justifiability. To be sure, some scholarly treatments suggest that these rights emanate from the “structures” or “penumbras” of the Constitution. But critics respond that hybrid rights lack legitimacy for that very reason because structural and …
The Role Of Fault In § 1983 Municipal Liability, Michael Wells
The Role Of Fault In § 1983 Municipal Liability, Michael Wells
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Under Monell v. Department of Social Services, local governments are not vicariously liable for constitutional violations committed by their employees. Those governments, however, are liable under 42 U.S.C. § 1983 for violations committed by "policymaking" officials. In the face of these two principles, courts have struggled with cases in which an underling commits a constitutional violation and the claim of municipal liability is based on a policymaker's failure to prevent it. The government can be liable in these "indirect-effect" cases for a policymaker's "deliberate indifference" to safeguarding constitutional rights, a standard that demands an even greater showing of culpability than …
Student Press Exceptionalism, Sonja R. West
Student Press Exceptionalism, Sonja R. West
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Constitutional protection for student speakers is an issue that has been hotly contested for almost 50 years. Several commentators have made powerful arguments that theCourt has failed to sufficiently protect the First Amendment rights of all students. But this debate has overlooked an even more troubling reality about the current state ofexpressive protection for student — the especially harmful effect of the Court’s precedents on student journalists. Under the Court’s jurisprudence, schools may regulate with far greater breadth and ease the speech of student journalists than of their non-press classmates. Schools are essentially free to censor the student press even …
Does The Federal Constitution Incorporate The Declaration Of Independence?, Thomas B. Mcaffee
Does The Federal Constitution Incorporate The Declaration Of Independence?, Thomas B. Mcaffee
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A standard view at the time of the adoption of the Constitution was that “a constitution does not in itself imply any more than a declaration of the relation which the different parts of the government have to each other, but does not imply security for the rights of individuals.” The drafters of the state constitutions had “assumed that government had all power except for specific prohibitions contained in a bill of rights.” When the federal Constitution was transmitted to the states by Congress, Nathaniel Gorham of Massachusetts defended the omission of a bill of rights based on the federal …
Inalienable Rights, Legal Enforceability, And American Constitutions: The Fourteenth Amendment And The Concept Of Unenumerated Rights, Thomas B. Mcaffee
Inalienable Rights, Legal Enforceability, And American Constitutions: The Fourteenth Amendment And The Concept Of Unenumerated Rights, Thomas B. Mcaffee
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It has become common to believe that those who ratified the Fourteenth Amendment “incorporated” not only the specific guarantees of the federal Bill of Rights, but also the other fundamental rights “retained by the people” in the Ninth Amendment. Even among those who acknowledge that the Ninth Amendment was originally a “federalism” provision that simply “retained” all that had not been granted as “powers” to the federal government are those who contend that, in light of the adoption of similar provisions in the state constitutions, by 1866 this language had become a free-floating affirmation of unenumerated rights. This Article attempts …
The Federal System As Bill Of Rights: Original Understandings, Modern Misreadings, Thomas B. Mcaffee
The Federal System As Bill Of Rights: Original Understandings, Modern Misreadings, Thomas B. Mcaffee
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In the modern era, we have almost completely lost track of the relationship that the Framers of the United States Constitution perceived between the structure of our federal system and the protection of popular rights. At least two obvious components of this confusion persist. First, as we have come to think of rights almost exclusively in terms of the claims of individuals against the government, we have lost the ability to hear the Framers' voices referring to rights held by the people in their collective capacity, including the rights of the people within each of the sovereign states to be …
Claims For Damages For Violations Of State Constitutional Rights – Analysis Of The Recent Court Of Appeals Decision In Brown V. New York; The Resolved And Unresolved Issues, Martin A. Schwartz
Claims For Damages For Violations Of State Constitutional Rights – Analysis Of The Recent Court Of Appeals Decision In Brown V. New York; The Resolved And Unresolved Issues, Martin A. Schwartz
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No abstract provided.
A Critical Guide To The Ninth Amendment, Thomas B. Mcaffee
A Critical Guide To The Ninth Amendment, Thomas B. Mcaffee
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Since the Supreme Court's decision in Griswold v. Connecticut, thousands of law students each year have confronted a confusing debate over the meaning of the Ninth Amendment. Writing for the majority in Griswold, Justice Douglas included the Ninth Amendment among the sources for deriving the “penumbral” right of privacy. More central to this article, in a separate concurrence Justice Goldberg contended that the Amendment provided a basis for the discovery of fundamental human rights beyond those included in the text of the Constitution and the Bill of Rights. In response, the dissenting Justices, Stewart and Black, argued that …
The Bill Of Rights, Social Contract Theory, And The Rights “Retained” By The People, Thomas B. Mcaffee
The Bill Of Rights, Social Contract Theory, And The Rights “Retained” By The People, Thomas B. Mcaffee
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The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” There is no question that this Amendment was designed as a savings clause, to ensure that the specification of particular rights would not raise an inference that the Bill of Rights exhausted the rights which the people held as against the newly-created national government. But there is an ongoing debate as to nature of these additional rights retained by the people and as to the sort of claim they might support against the exercise …
Uncommon Law And The Bill Of Rights: The Woes Of Constitutionalizing State Common-Law Torts, Elaine W. Shoben
Uncommon Law And The Bill Of Rights: The Woes Of Constitutionalizing State Common-Law Torts, Elaine W. Shoben
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During the two-hundred-year history of the Bill of Rights, the Supreme Court occasionally has used those first ten Amendments to constitutionalize state common-law torts. In this essay, Professor Elaine Shoben argues that the Court would be well advised to forgo that practice. Pointing to the Court's experience in constitutionalizing defamation law under the First Amendment, Professor Shoben says when the Court meddles in state tort law, the result is a highly complex and very unsatisfactory body of law. On the Bicentennial of the Bill of Rights, this author recommends that if the Court feels compelled to reform a state common-law …