Law Commons^™

What's So Special About American Law?, William Ewald

All Faculty Scholarship

No abstract provided.

Discrimination Cases In The 2000 Term, Eileen Kaufman

Scholarly Works

No abstract provided.

The Supreme Court Rules In Favor Of Religious Club’S Right To Meet On Public School Premises: Is This “Good News” For First Amendment Rights?, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

Fundamentals Of Section 1983 Litigation, Martin A. Schwartz

Scholarly Works

No abstract provided.

The 2000-2001 Supreme Court Term: Section 1983 Cases, Martin A. Schwartz

Scholarly Works

No abstract provided.

Should Juries Be Informed That Municipality Will Indemnify Officer’S 1983 Liability For Constitutional Wrongdoing?, Martin A. Schwartz

Scholarly Works

No abstract provided.

First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz

Scholarly Works

No abstract provided.

May The Child Online Protection Act Rely On Community Standards To Identify Material That Is Harmful To Minors?, Susanna Frederick Fischer

Scholarly Articles

The Communications Decency Act, the government's previous attempt to protect minors from online pornography, was struck down in 1997 on the grounds that it required Internet content to be judged by the standards of the community most likely to be offended by it. Now the Court has agreed to review the constitutionality of the new Child Online Protection Act, which seeks to address the Court's free-speech concerns by regulating Web communications in a manner similar to existing laws restricting minors' access to print pornography.

The Prime Minister's Police? Commissioner Hughes' Apec Report, W. Wesley Pue

All Faculty Publications

On 31 July 2001, a distinguished Canadian jurist reported on matters of unusual significance. Sitting as a Member of the Commission for Public Complaints Against the RCMP (CPC), Mr. Justice E.N. Hughes dealt with matters that go to the heart of liberal democracy. Any investigation of alleged police misconduct is important, of course, to a country that wishes to be governed in accordance with fundamental principles of the rule of law. This is so even in the seemingly most inconsequential instances. Important principles are involved even where "small" matters are concerned. The matters before Commissioner Hughes on this occasion however …

Federal Preemption Of State Tort Claims, Marin Roger Scordato

Scholarly Articles

This article explores a continuing disagreement among Justices of the United States Supreme Court regarding the proper doctrinal framework for federal preemption jurisprudence. This important difference in views became apparent in the four federal preemption cases that the Supreme Court decided during its 1999-2000 term. The article describes this critical disagreement among the Justices, places it in the larger context of preemption doctrine, and then carefully analyzes a number of possible resolutions.

Federal preemption is an area of enormous practical and theoretical importance. It is a subject that has earned a regular place on the Supreme Court's docket for many …

Dissing Congress , Ruth Colker, James J. Brudney

Faculty Scholarship

This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and …

Lochner, Liquor, And Longshoremen: A Puzzle In Progressive Era Federalism, Barry Cushman

Journal Articles

In 1890, the Supreme Court shocked and thrilled the civilized world with the announcement that dry states could not prohibit the sale of liquor shipped in from outside the state. So long as the out-of-state goods remained in their "original packages," the Court held they retained their character as interstate commerce subject only to federal regulation. The consequences for the cause of local sobriety were, predictably, catastrophic. The proliferation in temperance territory of "original package saloons," at which one could purchase liquor free from the superintendence of local liquor authorities, was appalling to dry eyes. Members of Congress immediately proposed …

Avoiding Constitutional Questions As A Three-Branch Problem, William K. Kelley

Journal Articles

This article criticizes the cardinal rule of statutory construction known as the avoidance canon - that statutes must be interpreted to avoid raising serious constitutional questions - as failing to respect the proper constitutional roles of both Congress and the Executive. It argues that the avoidance canon in practice cannot be grounded in legislative supremacy, which is the common justification for it offered by the Supreme Court, because it assumes without foundation that Congress would always prefer not to come close to the constitutional line in enacting statutes. Instead, the avoidance canon creates pressure for courts to adopt statutory meanings …

Little Sisters Book And Art Emporium V. Minister Of Justice: Sex Equality And The Attack On R. V. Butler, Janine Benedet

All Faculty Publications

Scholars and philosophers spend much of their time discussing what pornography means and whether it can be defined. This debate persists despite the fact that most men, regardless of their sexual orientation, seem to understand quite well what pornography is, and what it is for: they produce it commercially, buy it in magazines, rent it in videos, and search for it on the Internet. The pornography industry has the distinct advantage of selling a product that, in legal terms, is considered "expression," and therefore a product that has been declared worthy of constitutional protection under section 2(b) of the Canadian …

Legal Rights In The Supreme Court Of Canada In 2000: Seeing The Big Picture, Janine Benedet

All Faculty Publications

In 2000, the Supreme Court of Canada decided four cases which raised claims concerning some of the legal rights provisions of the Charter. Two of the cases were criminal: R. v. Darrach, [2000] 2 S.C.R. 443; R. v. Morrisey, [2000] 2 S.C.R. 90. The other two cases involved a human rights investigation (Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307), and a child protection proceeding (Winnipeg Child and Family Services v. K.L.W., [2000] 2 S.C.R. 519). This comment focuses on two of these decisions (Blencoe and Darrach) where the SCC considered claims under section 7 of the …

The Free Exercise Clause: How Redundant, And Why?, Daniel O. Conkle

Articles by Maurer Faculty

This article responds to Professor Mark Tushnet's article, "The Redundant Free Exercise Clause?" Although its analysis and specific conclusions are distinctive, the article reaches a general conclusion similar to Tushnet's - namely, that the contemporary Free Exercise Clause is largely redundant, in that it provides little protection that is not afforded independently by other First Amendment doctrines. The article first contends that the core principle of the contemporary Free Exercise Clause, the nondiscrimination requirement of Employment Division v. Smith, might be subsumed, perhaps entirely, within the free speech principle that disfavors content discrimination. To that extent, the Free Exercise Clause …

Are We Buyers Or Hosts? A Memetic Approach To The First Amendment, Jeffrey E. Stake

Articles by Maurer Faculty

The First Amendment is often analyzed using the metaphor of the marketplace of ideas. Making use of memetic analysis, this article suggests that ideas should not be treated as inert products that we choose but as living things that sometimes exert some influence over their environment. Some of the ideas are more adept at surviving than others, and the ones that survive will not necessarily be good for humans. To account for the ability of some memes to replicate dangerously, the First Amendment should be read to allow governments to punish a speaker who advocates or threatens physical injury (other …

The Electoral College, The Right To Vote, And Our Federalism: A Comment On A Lasting Institution, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

The Electoral College has been subject to a constant barrage of criticism. This raises an obvious question: how has the College managed to survive despite its lack of popularity, its opacity and its generally controversial nature?

Commentators look to the wisdom and staying power of the founding generation as well as to the force of history and tradition. In this Article, we look carefully at a third possibility. That is, we look to the foundation of our political structure and the nature of our democratic commitments.

In this vein, we are particularly intrigued by the question of electoral legitimacy. To …

Reconceptualizing Federal Habeas Corpus For State Prisoners: How Should Aedpa's Standard Of Review Operate After Williams V. Taylor?, Adam N. Steinman

Faculty Scholarship

This Article aims to expand the debate over the proper standard of review that applies in state prisoner habeas corpus actions in federal court. To date, this debate has centered on whether federal habeas courts should defer to the state court's resolution of federal legal questions, or whether federal habeas courts should assess and apply federal law de novo. However, in Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court held that the Antiterrorism and Effective Death Penalty Act (AEDPA) imposes a deferential standard of review that precludes a federal habeas court from granting relief based simply on its …

Institutional Arrangements And Individual Rights: A Comment On Professor Tribe's Critique Of The Modern Court's Treatment Of Constitutional Liberty, Dan T. Coenen

Scholarly Works

Professor Coenen analyzes Professor Tribe's contention that the present day Supreme Court's constitutional work is marked by an unjustified two-track approach. Professor Tribe has built this claim on an elaborate assessment of Saenz v. Roe, in which the Court -- to the surprise of many prognosticators -- invalidated a state statute that imposed temporary limitations on welfare benefits for new residents. He contends that the Court employed the open-stanced constitutional methodology of “structural inference” in deciding Saenz only because that case involved institutional arrangements. According to Professor Tribe, the modern Court has carefully (and unjustifiably) confined its use of structural …

Why Doesn't She Leave? The Collision Of First Amendment Rights And Effective Court Remedies For Victims Of Domestic Violence, Laurie S. Kohn

Georgetown Law Faculty Publications and Other Works

Despite the persistence of the question, social science literature is replete with reasons why a victim does not or cannot leave a battering relationship. Commonly cited explanations include lack of financial resources; fear of physical retribution; lack of access to information about options for escape; enduring love for the batterer and belief he will change; learned helplessness; and depression. This Article, however, focuses on a pervasive and previously unexamined reason: the victim's fear that the batterer will publicize truthful confidential information that will hurt her. If the victim were to seek the court's protection, most state courts have the authority …

Federalism And International Human Rights In The New Constitutional Order, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

This Essay examines the contours of what I have elsewhere called the new constitutional order with respect to international human rights and federalism. The background is my suggestion that the U.S. political-constitutional system is on the verge of moving into a new constitutional regime, following the end of the New Deal-Great Society constitutional regime. The Supreme Court's innovations in the law of federalism in connection with Congress's exercise of its powers over domestic affairs has provoked speculation about the implications of those innovations for the national government's power with respect to foreign affairs. Most of the speculation has been that …

Open Access And The First Amendment: A Critique Of Comcast Cablevision Of Broward County, Inc. V. Broward County, David Wolitz

Georgetown Law Faculty Publications and Other Works

To what extent does the Free Speech Clause of the First Amendment bar the adoption of “open access” regulations? Open access (or “net neutrality”) refers to a policy that would require broadband Internet providers, such as cable and phone companies, to allow competitive Internet Service Providers (ISPs) onto their broadband lines at nondiscriminatory rates. A federal district court in Florida recently held Broward County’s open access ordinance unconstitutional on the grounds that it would force speech – in the form of Internet content – on to the local cable company. If the district court’s analysis is correct, then open access …

The American Prosecutor: Independence, Power, And The Threat Of Tyranny, Angela J. Davis

Articles in Law Reviews & Other Academic Journals

This Article compares the power, practices, and policies of the Independent Counsel with those of ordinary state and federal prosecutors and suggests that the purported distinctions turn out to be illusory. Part I charts the principal structural characteristics of the Independent Counsel and regular prosecutors, with particular focus on prosecutorial discretion and the charging power. This section notes the public outrage over former Independent Counsel Kenneth Starr and argues that the American prosecutor deserves similar scrutiny. Using illustrations from the author’s former experience as a public defender, this Part explains how regular prosecutors engage in the same acts of misconduct …

Mark Tushnet: The Right Questions, Philip C. Bobbitt

Faculty Scholarship

It is the most grotesque of ironies that much of twentieth-century jurisprudence has been an effort to make law into a science. This effort amounts to a reversal of a far earlier appropriation. It was the observation of regularities in gravity and the movement of the planets that reformed science and gave credence to the locution, 'the laws of nature.' Nature was "lawful" because it appeared to follow undeviatingly a certain regimen, which is to say that any deviations observed were held to be clues as to the true content of the laws that were being followed. Mathematics was the …

Rights, Capabilities, And The Good Society, Robin West

Georgetown Law Faculty Publications and Other Works

In Part I this essay explores and then criticizes the two major arguments behind the conventional wisdom that rights undermine efforts to secure a state role in ensuring the material preconditions for a good society, and therefore, the material preconditions for the development of those human capabilities essential to a fully human life. I conclude in this part that this understanding of rights is mistaken. In Part II, I urge that the pragmatic argument put forward by rights critics and some welfare advocates for forgoing rights-talk and rights-rhetoric also fails: there are very real costs, both in theory and in …

Defending Congress, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

Every year the Solicitor General must decide, one case at a time, what the interests of the United States are with respect to several thousand different cases in the federal and state courts. Should the United States appeal, or seek rehearing, or petition for certiorari, or file a brief amicus curiae, or intervene? What issues should the United States raise, and what arguments should it make? How should the law be interpreted or the doctrine applied? The goal is for the United States to speak with one voice - a voice that reflects the interests of all three branches of …

Nixon V. Shrink Missouri Government Pac: The Beginning Of The End Of The Buckley Era?, Richard Briffault

Faculty Scholarship

In Nixon v. Shrink Missouri Government PAC, the Supreme Court emphatically reaffirmed a key element of the campaign finance doctrine first articulated in Buckley v. Valeo a quarter-century earlier that governments may, consistent with the First Amendment, impose limitations on the size of contributions to election campaigns. Shrink Missouri was significant because the Eighth Circuit decision reversed by the Supreme Court had sought to strengthen the constitutional protection provided to contributions and had invalidated limitations on donations to Missouri state candidates that were actually higher than the limits on donations to federal candidates that the Supreme Court had previously …

Guns, Crime, And Punishment In America, Bernard E. Harcourt

Faculty Scholarship

There are over 200 million firearms in private hands in the United States, more than a third of which are handguns. In 1993 alone, it is estimated that 1.3 million victims of serious violent crime faced an offender with a gun. In 1999, there were approximately 563,000 such victims. Estimates of defensive uses of firearms – situations where individuals used a gun to protect themselves, someone else, or their property – range from 65,000 to 2.5 million per year. Punishments for crimes committed with a firearm are severe: under the federal firearms enhancement statute, the mandatory minimum sentence for use …

"Project Exile" And The Allocation Of Federal Law Enforcement Authority, Daniel Richman

Faculty Scholarship

With each report of violent crime statistics (whether rising or falling) or of the latest firearms outrage, we hear the antiphony of the gun control debate. Advocates of increased federal regulation decry the inadequacies of a regime that permits relatively free access to firearms and argue that the availability of guns is itself a spur to more deadly violence. Advocates of minimal regulation, for their part, condemn measures that, they say, will primarily penalize law-abiding citizens, and instead call for more vigorous enforcement of existing laws, targeting "criminals," not their weapons. When the antiphony intrudes on funerals, the effect can …