Law Commons^™

Bill Lockhart--Colleague, Mentor, Friend, Jesse H. Choper

UC Law Constitutional Quarterly

No abstract provided.

Our Shield Belongs To The Lord: Religious Employers And A Constitutional Right To Discriminate, Joanne C. Brant

UC Law Constitutional Quarterly

For many years, religious organizations have engaged in employment practices of dubious legality under the federal anti-discrimination laws. Religious employers are rarely found liable under anti-discrimination laws-largely because the courts have chosen to construe the statutes narrowly. This approach has enabled courts to avoid the constitutional implications of striking down employment policies that reflect an employer's religious convictions. After the Supreme Court's controversial decision in Employment Division v. Smith, that approach may no longer be practicable.

Smith prohibits exemptions from neutral and generally applicable laws on free exercise grounds. This Article contends that the federal anti-discrimination laws are neutral and …

The Invidiousness Of Invidiousness: On The Supreme Court's Affirmative Action Jurisprudence, Mark Strasser

UC Law Constitutional Quarterly

The Supreme Court's invidious discrimination jurisprudence has manifested a pattern in which one sense of "invidious" is used in certain kinds of cases and a different sense in other (although relevantly similar) kinds of cases. The Court's decisions are inconsistent with respect to both when the Court will presume antipathy and to when the presence of antipathy will be either a necessary or a sufficient condition for a policy's unconstitutionality. Both patterns disadvantage minorities. Examples are offered from both higher education and employment contexts. It is exactly this kind of patterned, subtle alteration both of the meanings of key terms …

Federalism And Health Care Reform: Is Half A Loaf Really Worse Than None, Richard Briffault

UC Law Constitutional Quarterly

This Commentary argues that national health care reform that combines federal policy-making and financial assistance with some state administration and implementation may be more likely to achieve the goals of health care reform, and be better for the states and the values of federalism, than either all-federal or states-only reform. New York v. United States does not bar joint federal-state programs. An expansive reading of New York, as Professor Hoke suggests, would limit the development of solutions for the economic and social problems currently besetting the states and thus could, paradoxically, hinder, rather than help, the states in serving as …

Reply To Professor Brewbaker, Thomas W. Merrill

UC Law Constitutional Quarterly

No abstract provided.

Constitutional Challenges To Bans On Assisted Suicide: The View From Without And Within, Robert A. Sedler

UC Law Constitutional Quarterly

This Article analyzes constitutional challenges to bans on "assisted suicide" from the dual perspectives of an academic commentator and a constitutional litigator. The focus is on the application of such bans to the terminally ill. An absolute ban on the use of physician-prescribed medications by a terminally ill person to hasten that person's inevitable death, if and when the person chooses to do so, is an "undue burden" on that person's constitutionally protected liberty interest in personal autonomy. The "preserving life" justification typically asserted for bans on assisted suicide is insufficient in the case of a terminally ill person because …

Wiliam B. Lockhart: A Brief Biography

UC Law Constitutional Quarterly

No abstract provided.

Tribute To Professor William B. Lockhart, Mary Kay Kane

UC Law Constitutional Quarterly

No abstract provided.

The Constitution Of The Czech Republic Of 1992, George E. Glos

UC Law Constitutional Quarterly

The Czech Republic adopted a new constitution in 1992, following the division of Czechoslovakia into the Czech and Slovak Republics. In many ways the Constitution of 1992 recalls the formative days of Czech democracy, when the country was born in the aftermath of World War I. Today's constitution is largely based on the Czechoslovak Constitution of 1920, yet follows a long period of inattention to constitutional issues. The author, now, with the Library of Congress, received his legal training in Czechoslovakia. In this Article, he elucidates the basic tenets of the new constitution, and, in the process, compares it with …

Presidential Defiance Of Unconstitutional Laws: Reviving The Royal Prerogative, Christopher N. May

UC Law Constitutional Quarterly

The yet to be authorized 'line item veto' advocated by recent administrations pales in comparison to the 'absolute item veto' already wielded by an 'Imperial Presidency'. When the Executive refuses to enforce disfavored statutes, the effect is a veto without Congressional override. Can such a power be reconciled with our government scheme? A review of the Framer's intent shows that it was believed that the Constitution conferred on the Executive no general power to avoid enforcing unconstitutional statutes. Rather, the Executive must work within the parameters of its grant to achieve its objectives.

Evidence of presidential defiance can be traced …

Minnesota Burning: R.A.V. V. City Of St. Paul And First Amendment Precedent, Jeffrey M. Laurence

UC Law Constitutional Quarterly

The Supreme Court has long held that it would strictly scrutinize restrictions which burdened protected speech based on the content of the speech. In the past, fighting words have been considered as having such slight social value that they did not merit First Amendment protection. In R.A.V., the Court entered uncharted First Amendment territory when it added an underinclusiveness standard to the content based test. Under the new standard, St. Paul, Minnesota's hate speech law was found invalid as viewpoint discrimination aimed at a subset of fighting words.

The test adopted by the majority is problematic. Contrary to the majority's …

Federalism And Judicial Review: An Update, Jesse H. Choper

UC Law Constitutional Quarterly

This Commentary argues that the Court decided New York v. United States incorrectly. The Court failed to take into account both the highly pragmatic nature of federal-state questions and the extent to which state interests are represented in the national political process. The Court, instead, should have followed the author's "Federalism Proposal" whereby all issues of federalism arising under the Tenth Amendment are deemed non-justiciable and are left to the political branches for resolution. This Commentary illustrates the shortcomings of the New York approach in the context of national health care regulation.

Constitutional Limits On Physician Price Controls, Thomas W. Merrill

UC Law Constitutional Quarterly

Although the federal government has the power to impose price controls on physicians, this does not mean that the Constitution has nothing to say about what form such controls take. This Article argues that the Takings Clause and the Due Process Clause impose limits on physician price controls analogous to those that apply to price controls on regulated public utilities. Physicians, like public utilities, make extensive investments in specific capital that cannot be transferred to an unregulated market. Thus, a physician's investment in medical education, training, and equipment is vulnerable to expropriation through price controls. Three important constitutional limits follow …

The Religion Clauses And Parental Health Care Decisionmaking For Children: Suggestions For A New Approach, Ann Maclean Massie

UC Law Constitutional Quarterly

This Article argues that statutory exemptions in child abuse and neglect laws that exclude from their definitions of "medical neglect" a parent's choice to rely upon spiritual rather than physical healing are unconstitutional. In attempting to respect the free exercise rights of parents, these laws violate the free exercise rights of affected children, who are too young to make religious choices for themselves. Forcing parents' religious choices on their children is also an Establishment Clause violation, as the state is "taking sides" in religious choice-to the detriment of the children involved. Additionally, by applying different definitions of "child abuse and …

Out, Out Brief Candle: Constitutionally Prescribed Suicide For The Terminally Ill, Thomas J. Marzen

UC Law Constitutional Quarterly

Proponents of assisted suicide claim a constitutional right for competent adults with terminal conditions or unbearable suffering to receive a physician-prescribed lethal dose of drugs. Critics respond that any such right cannot be confined to such narrow categories in view of the abortion and withdrawal-of-treatment precedents and the force of reason and experience. Beyond the "slippery slope" that any constitutionally protected liberty to assisted suicide portends, such an asserted right has no historical basis and cannot be derived from principals implicit in the Fourteenth Amendment to the Constitution. The claim that "rational" assisted suicide is a right presumes a set …

A Bill Of Rights For The Twenty-First Century, Richard L. Nygaard

UC Law Constitutional Quarterly

This Essay was originally delivered as a speech to the Erie County Bar Association on Law Day, 1993. It examines the United States's and other countries' experiences with developing bills of rights and proposes a new bill of rights to be used by emerging democracies in the twenty-first century.

Complex Litigation And The State Courts: Constitutional And Practical Advantages Of The State Forum Over The Federal Forum In Mass Tort Cases, Mark C. Weber

UC Law Constitutional Quarterly

Although most current proposals for consolidation adjudication of mass tort cases call for these cases to be heard by district courts, the federal forum is unsuitable for two reasons. First, under the Erie doctrine, federal courts must apply state law, which they cannot develop sensibly nor even predict accurately. Creating national mass tort law would be unwise because important federalism interests would be frustrated. Second, federal courts would better spend their scarce time on federal constitutional and statutory cases in which they have a comparative advantage over state tribunals.

The proponents of federal consolidation have failed to examine the premise …

Attorneys As State Actors: A State Action Model And Argument For Holding Slapp-Plaintiffs' Attorneys Liable Under 42 U.S.C. 1983, James W. Harper

UC Law Constitutional Quarterly

Strategic Litigation Against Public Participation ("SLAPP") is a recently identified genre of intimidation suit that menaces citizen activism on matters of public concern. The problem with SLAPPs is that their success is not contingent on victory in court; they begin achieving their purpose the moment suit is filed. This Note reviews SLAPPs and defenses and deterrents to SLAPPs. It proposes an additional deterrent to SLAPPs: applying 42 U.S.C. § 1983 to SLAPP-plaintiffs' attorneys. Because section 1983 requires deprivation of civil rights "under color of law," this Note explores whether and when attorneys are state actors and proposes a model to …

What Is The Court Trying To Establish: An Analysis Of Lee V. Weisman, Dina F. El-Sayed

UC Law Constitutional Quarterly

Lee v. Weisman marked a new turn in Establishment Clause jurisprudence. In Lee, the United States Supreme Court declared that prayers delivered as part of a public school graduation ceremony violate the Establishment Clause of the First Amendment. In holding the prayers unconstitutional, the Court invented a new framework for analyzing Establishment Clause cases-the coercion test. By invoking the coercion test without clarifying the status of the test previously developed in Lemon v. Kurtzman, the Court has left the law in a state of confusion. This Comment does not discuss whether graduation prayers should be constitutional. Rather, it criticizes the …

Standards Of Review And Constitutional Analysis Of Health Care Issues, Roy G. Spece Jr.

UC Law Constitutional Quarterly

No abstract provided.

Constitutional Impediments To National Health Reform: Tenth Amendment And Spending Clause Hurdles, Candice Hoke

UC Law Constitutional Quarterly

Reform of health policy, via federal legislation appears to be a primary goal of both the President and Congress. Most of the leading bills introduced in 1993-94 attempt to utilize both state governmental power and the state fisc to achieve federal reforms, and many directly order state governments to enact appropriate legislation and execute the federal programs. After New York v. United States, national regulatory programs are subject to new scrutiny under the Tenth Amendment if they command state governments to implement federal programs. The Supreme Court has also cautioned against uses of the spending power that virtually compel state …

Doing It With Mirrors: New York V. United States And Constitutional Limitations On Federal Power To Require State Legislation, Martin H. Redish

UC Law Constitutional Quarterly

This Commentary points out that the decision in New York v. United States is flawed because the Court improperly equated the "enclave" model of federal power, which recognizes defined areas of state sovereignty, with the "enumerated powers" model, which merely inquires whether federal action falls within the scope of the federal government's enumerated power. Due to its structure, the Tenth Amendment should be analyzed solely under the "enumerated powers" model. This Commentary suggests that the limits of federal power over the states are properly found in and defined by the Commerce Clause.

Health Care Price Controls And The Takings Clause, William S. Brewbaker Iii

UC Law Constitutional Quarterly

At least two of the competing health care reform proposals rely on price controls to help contain costs. Opponents of health care price regulation argue that the adequacy of regulated prices must be judged under the "reasonable return" standard applicable to public utility ratemaking under the Takings Clause.

This Article argues that the "reasonable return" standard should not be applied to price regulation in the health care sector. The "property" interests at stake in health care price regulation are economically indistinguishable from the interests in "economic liberty" formerly protected under economic substantive due process analysis. As a result, the Court …

Rejoinder To Professor Merrill, William S. Brewbaker Iii

UC Law Constitutional Quarterly

No abstract provided.

Womb For Rent: Norplant And The Undoing Of Poor Women, Jeanne L. Vance

UC Law Constitutional Quarterly

In a desperate effort to cut government costs, many state legislators have introduced bills that would pay women on welfare to be surgically implanted with the longlasting contraceptive Norplant. This Note explores the constitutionality of these proposals by analyzing traditional and developing privacy law, the interplay between constitutional rights and the receipt of public benefits, and the equal protection doctrine as it applies to gender classifications. This Note argues for a constitutional interpretation that takes into account social conditions behind legislation and concludes that, under any of these doctrines, the described proposals would be unconstitutional.

The Validity Of The Public Rights Doctrine In Light Of The Historical Rationale Of The Seventh Amendment, Kenneth S. Klein

UC Law Constitutional Quarterly

The Seventh Amendment right to a jury trial is a hallmark of the American system of justice. This distinguishing characteristic, however, is slowly eroding. As the agent of change, the Supreme Court bears responsibility for restricting availability of jury trials. Among other factors, the Court's shaping of the public rights doctrine has cut into the sphere of the Seventh Amendment. The public rights doctrine has gone astray from its arguably tenuous roots, becoming the proverbial hole in the dike.

The public rights doctrine grows from the concept that sovereign immunity allows the government to direct how disputes against the government …

The Fifth Amendment Due Process Rights Of Interdicted Haitian Refugees, Geoffrey Jones

UC Law Constitutional Quarterly

The Bush and Clinton Administrations' response to the exodus from Haiti that began with the overthrow of President Aristide presents constitutional as well as political problems. The Kennebunkport Order of May 1992 called for the forcible repatriation of Haitian refugees without first determining whether they were eligible for political asylum under United States and international law. This Note discusses the constitutionality of this Order. It first reviews Haitian history with an emphasis on the principal period of migration beginning in 1972. This is followed by a discussion of the litigation on behalf of Haitian refugees. The principal part of the …

Mapping And Matching Dna: Several Legal Complications Of Accurate Classifications, Aviam Soifer, Miriam Wugmeister

UC Law Constitutional Quarterly

Classifications are a boon and bane and a basic bone of contention in law. With the advent of DNA matching and new knowledge of the human genome, significant problems that exist in other areas of law are exacerbated. The use of even accurate classifications may generate substantial discrimination in the realms of privacy and personal freedom.

Endorsement As Adoptive Action: A Suggested Definition Of, And An Argument For, Justice O'Connor's Establishment Clause Test, Joel S. Jacobs

UC Law Constitutional Quarterly

In recent years, the line between acceptable and unacceptable government activity in the religious sphere has been blurred. Three separate tests-the Lemon v. Kurtzman Test, the Endorsement Test, and the Coercion Test-all are currently vying for adoption by a majority of the Supreme Court. This Article examines the Court's Establishment Clause jurisprudence in an attempt to formulate a workable standard which best represents the value of the Clause.

The Endorsement Test, as currently applied, shows the most promise. However, the focus on "real people" and the use of the "objective observer" standard pose severe logistical problems. This article redefines endorsement …

The Gun-Free School Zones Act: The Shootout Over Legislative Findings, The Commerce Clause, And Federalism, David S. Gehrig

UC Law Constitutional Quarterly

The Fifth Circuit, in United States v. Lopez, struck down the Gun-Free School Zones Act as unconstitutional based on a new procedural requirement: prior to enacting a statute under the Commerce Clause, Congress must make findings which link the regulated activity to interstate commerce. The Supreme Court has granted certiorari to Lopez apparently in an effort to reconcile a split among the circuits regarding the constitutionality of the Act, and will issue its opinion in early 1995. While the constitutionality of the Act hinges on the necessity of legislative findings, it also raises Commerce Clause and Tenth Amendment issues.

This …