Law Commons^™

True Lies: The Constitutional And Evidentiary Bases For Admitting Prior False Accusation Evidence In Sexual Assault Prosecutions, Jules Epstein

ExpressO

The admission of false accusation evidence in sexual assault prosecutions has been ruled on inconsistently by courts nationally. This article identifies the constitutional bases for admitting false accusation evidence as both impeachment and substantive (non-character) proof, and re-focuses Confrontation Clause analysis post-Crawford on the scope of the cross-examination right; offers a definition for what constitutes a false accusation and the level of proof requisite to its admission; and addresses social and policy concerns attendant to its presentation.

Legislatively Revising Kelo V. City Of New London: Eminent Domain, Federalism, And Congressional Powers, Bernard W. Bell

Rutgers Law School (Newark) Faculty Papers

This paper explores Congress’ power to limit state and local authorities’ use of eminent domain to further economic revitalization. More particularly, it examines whether Congress can constrain the discretion to invoke eminent domain which state and local officials appear entitled to under the Supreme Court’s recent decision in Kelo v. City of New London, — U.S. —, 125 S.Ct. 2655 (2005). The question involves and exploration and assessment of the Supreme Court’s recent jurisprudence regarding federalism and judicial supremacy.

In providing that private property may not be taken for “public use” without just compensation, the Fifth Amendment implicitly precludes government …

Making State Law In Federal Court, Benjamin C. Glassman

ExpressO

Abstract: We know from Erie R.R. Co. v. Tompkins that unless the Constitution or a federal statute provides the rule of decision in federal court, state law does. Contrary to the assumption of several recent commentators, however, Erie itself does not tell the federal court how to ascertain what is the law of the state, and the refrain that federal courts are to predict what the state supreme court would decide not only proves unhelpful upon examination, but also has tended to confuse the courts themselves in recent years. Yet federal courts routinely face questions of state law that admit …

Lost In The Shuffle: State-Recognized Tribes And The Tribal Gaming Industry, Alexa Koenig, Jonathan Stein

ExpressO

This article presents the emerging argument that Native American tribes that have received state but not federal recognition have a legal right to engage in gaming under state law. This argument is based on five points: that 1) the regulation of gaming is generally a state right; 2) state tribes are sovereign governments with the right to game, except as preempted by the federal government; 3) federal law does not preempt gaming by state tribes; 4) state tribal gaming does not violate Equal Protection guarantees; and 5) significant policy arguments weigh in favor of gaming by state tribes under state …

The Same Side Of Two Coins: The Peculiar Phenomenon Of Bet-Hedging In Campaign Finance, Jason Cohen

ExpressO

The paper addresses the propensity of large donors to give to competing candidates or competing party organizations during the same election cycle – for example, giving money to both Bush and Kerry during the 2004 presidential race – a practice here termed 'bet-hedging.' Bet-hedging is analyzed in strategic and game-theoretic terms. The paper explores the prevalence of bet-hedging, the possible motivations behind the practice, and the informational concerns surrounding it. The paper argues that bet-hedging, out of all donation practices, carries with it a uniquely strong implication of ex post favor-seeking: if a donor prefers one side over the other, …

The “New Judicial Federalism” Before Its Time: A Comprehensive Review Of Economic Substantive Due Process Under State Constitutional Law Since 1940 And The Reasons For Its Recent Decline, Anthony B. Sanders

ExpressO

No abstract provided.

Private Property, Development And Freedom, Steven J. Eagle

George Mason University School of Law Working Papers Series

The author asserts that adherence to the rule of law, including property law, is a necessary condition to economic development and human freedom. United States governmental agencies and private institutes have attempted to convey this message to Russia, other states of the former Soviet Union, and former Soviet satellite states, with some success. Finally, and unfortunately, the United States has veered away from the very adherence to the rule of law respecting property which it espouses abroad.

Crops, Guns & Commerce: A Game Theoretical Critique Of Gonzales V. Raich, Maxwell L. Stearns

George Mason University School of Law Working Papers Series

In Gonzales v. Raich, the Supreme Court sustained an application of the Controlled Substances Act (“CSA”), banning all private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the California Compassionate Use Act. Writing for the majority, Justice Stevens placed Raich at the intersection of two landmark Commerce Clause precedents: Wickard v. Filburn, the notorious 1942 decision, which upheld a penalty under the Agriculture Adjustment Act of 1938 applied to a local farmer who violated his wheat quota but who had used the modest excess portion …

Another Case In Lochner’S Legacy, The Court’S Assault On New Property: The Right To The Mandatory Enforcement Of A Restraining Order Is “A Sham, Nullity And Cruel Deception” , Christopher J. Roederer

ExpressO

This article provides a thorough critique of the Supreme Court decision of Castle Rock v. Gonzales 125 S. Ct. 2796 (2005) which dismissed respondent’s case for failing to establish that she had a property right in the enforcement of a restraining order that was worthy of procedural due process protection. The article critiques the Court’s methodology and substantive arguments. The article concludes by situating the decision in “Lochner’s legacy,” a legacy of decisions that Cass Sunstein has identified as privileging “government inaction,” and “the existing distribution of entitlements” as set by the common law. Just as the Lochner Court decided …

Christian Faith And Political Life: A Pre- And Post-Election Dialogue, Jason Carter, Randy Beck

ExpressO

The 2004 presidential election has generated a wide-ranging discussion of the role of religion in public life. Well before the election, Jason Carter, grandson of former President Jimmy Carter, anticipated the difficulties the political left would experience in attracting the votes of theologically conservative Christians. In a paper initially drafted for a Spring 2004 law school seminar, Mr. Carter called for a genuine dialogue about political implications of the Christian faith, designed to overcome the country's unhealthy polarization between a religious right and a secular left. In light of the election results, Prof. Randy Beck suggested that Mr. Carter's seminar …

When The Federal Death Penalty Is "Cruel And Unusual", Michael J.Z. Mannheimer

ExpressO

Recent changes to the way the U.S. Department of Justice decides whether to pursue capital charges have made it more likely that the federal death penalty will be sought in cases in which the criminal conduct occurred within States that do not authorize capital punishment for any crime. As a result, since 2002, five people have been sentenced to death in federal court for conduct that occurred in States that do not authorize the death penalty. This state of affairs is in serious tension with the Eighth Amendment’s proscription against “cruel and unusual punishments.” A complete understanding of the Bill …

Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree

ExpressO

The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.

U.S. Supreme Court Tort Reform: Limiting State Power To Articulate And Develop Its Own Tort Law–Defamation, Preemption, And Punitive Damages, Thomas C. Galligan

ExpressO

U.S. Supreme Court Tort Reform: Limiting State Power to Articulate and Develop Its Own Tort Law–Defamation, Preemption, and Punitive Damages analyzes and critiques the three primary areas in which the U.S. Supreme Court has found federal constitutional limits on a state’s power to articulate, develop, and apply its common law of torts. It is the first piece to consider all three areas together as an emerging body of jurisprudence which Professor Galligan calls U.S. Supreme Court tort reform. After setting forth a modest model of adjudication, the article applies that model to each of the three areas: defamation and related …

Looking For Sullivan In Cyberspace, Geoffrey A. Neri

ExpressO

No abstract provided.

The Reasonableness Of Probable Cause, Craig S. Lerner

George Mason University School of Law Working Papers Series

Probable cause is generally cast in judicial opinions and the scholarly literature as a fixed probability of criminal activity. In the weeks before the September 11 attacks, FBI headquarters, applying such an unbending standard, rejected a warrant application to search Zacarias Moussaoui’s laptop computer. This article, which begins with an analysis of the Moussaoui episode, argues that the probable cause standard should be calibrated to the gravity of the investigated offense and the intrusiveness of a proposed search. Tracing the evolution of probable cause from the common law through its American development, the article argues that the Supreme Court’s current …

Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya

ExpressO

In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association’s amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because …

Two Concepts Of Liberalism In Establishment Clause Jurisprudence, Kevin Pybas

ExpressO

The political theorist William Galston argues that the liberal political tradition contains two distinct strands of philosophical thought. One emphasizes the principle of autonomy, while the other stresses the principle of diversity. These principles, according to Galston, are in tension with each other and as guiding criterions lead to quite different public policies. Autonomy-centered liberalism seeks to promote autonomy or “individual self-direction”; it reflects a “commitment to sustained rational examination of self, others, and social practices.” As such, autonomy-centered liberals are generally suspicious of religious belief and seek to confine it to the private sphere. Diversity-centered liberalism, on the other …

Counter-Majoritarian Power And Judges' Political Speech, Michael R. Dimino

ExpressO

Canons of ethics restrict judicial campaigning and prohibit sitting judges from engaging in political activity. Only recently, in Republican Party v. White, 536 U.S. 765 (2002), has the Supreme Court addressed the constitutionality of these restrictions, concluding that judicial candidates must be allowed some opportunity to discuss legal and political issues in their campaigns. But White left many questions unanswered about the permissible scope of restrictions on judges’ political activity.

This Article suggests that those questions will be answered not by applying principles of free speech, but by analyzing the opportunities the restrictions provide for independent judicial policy-making. Restrictions on …

The Transformation Of South African Private Law After Ten Years Of Democracy: The Role Of Torts (Delict) In The Consolidation Of Democracy, Christopher J. Roederer

ExpressO

Although the role of the private law has been largely ignored in studies of transitional justice, private law is a crucial component in South Africa’s transition/transformation. Contrary to the views of some commentators, the private law and delict in particular, were tainted by apartheid. Further, even if the private law of South Africa was not infected by the apartheid cancer, it acted as a carrier and facilitator of apartheid values and policies, perpetuating the inequities apartheid. While there is evidence of the cancer in apartheid case law the more serious problem was a failure of delict to progress under apartheid. …

Expressive Association After Dale, David E. Bernstein

George Mason University School of Law Working Papers Series

The right to join with other people to promote a particular outlook, known as the right of expressive association, is a necessary adjunct to the right of freedom of speech, which is protected by the First Amendment of the United States Constitution. In Boy Scouts of America v. Dale, the United States Supreme Court found that the Boy Scouts of America had a First Amendment expressive association right to exclude a homosexual adult volunteer. Dale is likely to prove to be one of the most important First Amendment cases of recent years, because the Court enforced a broad right of …

Home As A Legal Concept, Benjamin Barros

ExpressO

This article, which is the first comprehensive discussion of the American legal concept of home, makes two major contributions. First, the article systematically examines how homes are treated more favorably than other types of property in a wide range of legal contexts, including criminal law and procedure, torts, privacy, landlord-tenant, debtor-creditor, family law, and income taxation. Second, the article considers the normative issue of whether this favorable treatment is justified. The article draws from material on the psychological concept of home and the cultural history of home throughout this analysis, providing insight into the interests at stake in various legal …

A Standards-Based Theory Of Judicial Review And The Rule Of Law, Sidney A. Shapiro

ExpressO

The constitutionality of legislative preclusion of judicial review has received considerable attention from constitutional and administrative law scholars. We join this debate by proposing a new approach: a standards-based theory of judicial review based on two fundamental principles. First, whenever government officials make decisions involving the application of legal standards, the rule of law – and hence the rule of law safeguards of due process and judicial review – attach. Second, with the exception of those cases in which the Constitution itself contemplates standardless official discretion, legislative delegations of authority to government actors must contain legal standards that guide and …

Race Against The Machine: An Argument For The Standardization Of Voting Technology, Jason Belmont Conn

ExpressO

In this article/note, I examine a lingering question from the court cases arising out of the 2000 election: Does Bush v. Gore and the relevant equal protection case law open the door for a legal challenge to a state’s use of different voting machines/technologies and how do racial disparities in machine error rates impact this analysis? In addition to reviewing the current literature and case law on voting machine standardization, I also present an unrecognized and undocumented connection between the “all deliberate speed” order in Brown and the Court’s discussion of voting technology in Bush v. Gore.

Bolling, Equal Protection, Due Process, And Lochnerphobia, David E. Bernstein

George Mason University School of Law Working Papers Series

In Brown v. Board of Education, the United States Supreme Court invalidated state and local school segregation laws as a violation of the Fourteenth Amendment's Equal Protection Clause. That same day, in Bolling v. Sharpe, the Court held unconstitutional de jure segregation in Washington, D.C.'s public schools under the Fifth Amendment's Due Process Clause. Fifty years after it was decided, Bolling remains one of the Warren Court's most controversial decisions.

The controversy reflects the widespread belief that the outcome in Bolling reflected the Justices' political preferences and was not a sound interpretation of the Due Process Clause. The Bolling Court …

Applying 42 U.S.C. Section 1981 To Claims Of Consumer Discrimination, Abby Morrow Richardson

ExpressO

This Comment explores several interesting legal questions regarding the proper interpretation 42 U.S.C. Section 1981, which prohibits racial discrimination in contracting, when discrimination arises in the context of a consumer retail contract. It explores how the Fifth Circuit’s and other federal courts’ narrow interpretation of section 1981’s application in a retail setting, which allows plaintiffs to invoke the statute only when they have been prevented from completing their purchase, is contrary to the statute’s express language, Congressional intent, and to evolving concepts of contract theory, all of which encompass our society’s deep commitment to combating racial discrimination through strict enforcement …

It's Not The Thought That Counts, Deborah S. Hellman

ExpressO

The article considers a central question about discrimination – are an actor’s intentions relevant to whether an action wrongfully discriminates – and takes issue with a familiar answer to this question. If one thinks of “discrimination” in its literal sense, as simply drawing distinctions among people on the basis of possessing or lacking some trait, it becomes clear that discrimination is ubiquitous and often benign. The challenge is to distinguish when discrimination is permissible and when it is not. One common answer to this question is that it is the intentions of the actor who adopts or enacts a law, …

Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence

ExpressO

America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.

Whatever became of the ideal that represented the very foundation …

The Crawford Issue- The Supreme Court Sharpens The Teeth Of The Confrontation Clause, Nathan Reed Haines

ExpressO

No abstract provided.

Foreword: Beyond Blakely And Booker: Pondering Modern Sentencing Process, Douglas A. Berman

The Ohio State University Moritz College of Law Working Paper Series

The Supreme Court’s landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment’s right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. And the future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in …

Rehnquist And Federalism: An Empirical Perspective, Ruth Colker, Kevin Scott

The Ohio State University Moritz College of Law Working Paper Series

We attempt to articulate a vision of federalism, particularly the Rehnquist version of federalism. We find that there is little consistent thought on the role of the judiciary in protecting federalism. This lack of consensus makes it difficult to predict the decisions federalists might make, but we attempt to outline Chief Justice Rehnquist's contributions to understanding the role courts should play in protecting federalism. We then attempt to assess if Rehnquist adheres to his own vision of federalism. Using his votes since his elevation to Chief Justice in 1986, we test several hypotheses designed to determine if Chief Justice Rehnquist …