Law Commons^™

Public Law From The Bottom Up, William N. Eskridge Jr.

West Virginia Law Review

No abstract provided.

Ninth Life: An Interpretive Theory Of The Ninth Amendment, Chase J. Sanders

Indiana Law Journal

No abstract provided.

Digging Up New Revenue: Retrospective Estate Taxation And The Omnibus Budget Reconciliation Act, Michael George

West Virginia Law Review

No abstract provided.

The Continuing Evolution Of Criminal Constitutional Law In State Courts, S. Carran Daughtrey

Vanderbilt Law Review

Although early state constitutions were important and ambitious documents for their time, the development of state constitutional law stagnated after the drafting and adoption of the federal constitution., As the doctrine of federalism has resurfaced, however, states have begun to turn to their constitutions to grant more protection for their citizens. The states' criminal constitutional laws have changed significantly and continue to evolve today.

In the 1960s, the Warren Court expanded basic protections for criminal defendants by finding that the Fourteenth Amendment incorporates the Fourth, Fifth, and Sixth Amendments. The Court held that the Eighth Amendment prohibits cruel and unusual …

A Precarious Path: The Bill Of Rights After 200 Years, Tony A. Freyer

Vanderbilt Law Review

The Bill of Rights occupies an ambiguous place in American society. Americans favor the Bill of Rights in principle, but when asked whether they support particular rights guarantees for real-life practices such as gun ownership, capital punishment, abortion, and flag burning, Americans fervently and profoundly disagree. The essays David J. Bodenhamer and James W. Ely, Jr. have compiled in The Bill of Rights in Modern America After 200 Years, richly suggest why Americans have reconciled principle and practice with such difficulty. Written for a popular audience by specialists who possess a profound knowledge of and differing views concerning the technical …

State Courts Reject "Leon" On State Constitutional Grounds: A Defense Of Reactive Rulings, Leigh A. Morrissey

Vanderbilt Law Review

In 1984, the United States Supreme Court announced a broad exception to the federal exclusionary rule' in United States v. Leon. The Court held the exclusionary rule inapplicable when police officers obtain evidence in reasonable, good faith reliance on a warrant later found to be defective. Commentators had advised against the creation of the so-called good faith exception before Leon. After Leon, they promulgated a torrent of commentary criticizing both the Leon Court's reasoning and its result. Today, because Leon does not control state constitutional decisions, the battle over the good faith exception is fought on the state level. Currently, …

Les Représentations De «Société Libre Et Démocratique» A La Cour Dickson : La Rhétorique Dans Le Discours Judiciaire Canadien, Andree Lajoie, Regine Robin, Sebastien Grammond, Henry Quillinan, Louise Rolland, Stéphane Perrault, Armelle Chitrit

Osgoode Hall Law Journal

The expression "free and democratic society" is the focus of our research, which sheds light on the contribution of the Supreme Court to the constitutionalization of this concept. Leaving aside the institutional and psycho-social factors, the study confirms the hypothesis that the interpretation of this expression will vary (1) according to the conceptions formerly held by the individual judges and (2) with respect to the factors favoured by a rhetorical Perelman-like analysis, which considers the factual and judicial context and the expectations of both the universal and specific audiences. At the Supreme Court level, the expectations of the latter should …

Hate Speech, Offensive Speech, And Public Discourse In America, Edward J. Eberle

Law Faculty Scholarship

In this article, Professor Eberle discusses several limitations on governmental power to regulate public discourse. After examining the United States Supreme Court decisions of R.A.V. v. City of St. Paula nd Wisconsin v. Mitchell, Professor Eberle concludes that government should refrain from regulating speech itself. Rather, any restrictions should focus strictly on the problematic conduct underlying the speech which justifies regulation. Professor Eberle also concludes that the Court has implicitly recognized two distinct subcategories of "content" discrimination and viewpoint discrimination. Both subcategories are presumptively unconstitutional and nominally subject to conventional strict scrutiny. The Court, however, finds viewpoint discrimination more dangerous …

Can American Constitutional Law Be Postmodern?, Robert Justin Lipkin

Robert Justin Lipkin

No abstract provided.

Resolving Native American Land Claims And The Eleventh Amendment: Changing The Balance Of Power, Katharine F. Nelson

Katharine F. Nelson

No abstract provided.

Fundamental Rights In The "Gray" Area: The Right Of Privacy Under The Minnesota Constitution, Michael K. Steenson

Faculty Scholarship

This Article explores the constitutional aspects of Minnesota privacy law. Part II briefly explains federal privacy law to provide a baseline for consideration of privacy law in Minnesota. Part III examines the right of privacy as it has evolved in the Minnesota common law. Part IV evaluates the Minnesota Supreme Court's application of federal privacy standards and then examines the court's decisions that outline the right of privacy under the Minnesota Constitution. Part V concludes by raising questions concerning the potential application of the court's concept of privacy under the Minnesota Constitution as applied to two areas: same-sex marriages and …

A Heterodox Catechism, Paul Campos

Publications

No abstract provided.

The Constitutional Case Against Precedent, Gary S. Lawson

Faculty Scholarship

A recent, and characteristically illuminating, article by Professor Henry Monaghan confidently announces that "[p] recedent is, of course, part of our understanding of what law is."1 As a descriptive matter, Professor Monaghan is entirely correct. Legal analysis-by lawyers, courts, and academics-typically begins and ends with precedent. Law students are meticulously trained in the art of reading, applying, and distinguishing cases. Court pinions, including Supreme Court opinions, on constitutional matters frequently consist entirely of discussions of past decisions, without so much as a reference to the Constitution itself.' Even in this era of law-and-metatheory, case analysis is still the mainstay of …

Different Religions, Different Politics: Evaluating The Role Of Competing Religious Traditions In American Politics And Law, Daniel O. Conkle

Articles by Maurer Faculty

In addressing the role of religion in politics and law, American political theory has strongly embraced the principle of religious equality. In this article, I explain how this principle has evolved and how it has nourished the privatization of religion and the secularization of public discourse by generating the view that public evaluations of religion are inappropriate. Under this view, religion is a private good that lacks public significance. As matters merely of private taste, matters that cannot be evaluated publicly, religious positions on political issues are not to be "imposed" on other citizens.

I challenge this reading of the …

Constitutional Law And International Law In The United States Of America, Lung-Chu Chen

Articles & Chapters

No abstract provided.

The Constitutionality Of Enjoining Criminal Street Gangs As Public Nuisances, Christopher S. Yoo

All Faculty Scholarship

California jurisdictions have increasingly used injunctions to combat the growth criminal street gangs. The use of civil sanctions to redress criminal activity raises difficult constitutional questions, potentially creating personal criminal codes that may infringe upon defendants’ substantive constitutional rights. In addition, employing civil remedies may deprive defendants of constitutional procedural protections that would have been provided if the jurisdiction had elected to deter the same behavior with available criminal sanctions. Although the use of injunctions places pressure on a number of substantive constitutional rights, including the freedom of association, freedom of expression, right to travel, the injunction terms will likely …

Terminator 2, Robert F. Nagel

Publications

No abstract provided.

Voice In Government: The People, Emily Calhoun

Publications

No abstract provided.

Welfare Servitude, Julie Nice

Julie A. Nice

In Welfare Servitude, Professor Nice considers whether mandating work as a condition for receiving welfare violates the Thirteenth Amendment’s prohibition of involuntary servitude and also explores the recurring intersection between race and class. She first describes the redoubling of efforts to increase enforcement of welfare work requirements once racial minorities were no longer excluded from receiving welfare benefits. Next she analyzes judicial decisions construing what constitutes involuntary servitude, including historic cases addressing indentured servitude, the padrone system, peonage, and the surety system, as well as modern cases challenging various welfare work requirements. Professor Nice distills three doctrinal types of involuntary …

Scrambling For Protection: The New Media And The First Amendment, Patrick Garry

Patrick M. Garry

In Scrambling for Protection, Patrick Garry asserts that such dramatic developments in electronic communications will radically change the way society communicates. Already, computer networks and bulletin boards are creating, in essence, electronic editorial pages on which people can register their viewpoints. Indeed, the new and increasingly interactive media promise to more significantly involve the public in the process of social communication. This concept of change lies at the heart of Scrambling for Protection. Garry offers models and guidelines for constitutionally redefining the press and asserts that, as both the press and the First Amendment move away from an apparently exclusive …

Affirmative Action And Judicial Incoherence, Robert C. Power

Robert C Power

No abstract provided.

Twenty-Five Years After Goldberg V. Kelly: Traveling From The Right Spot On The Wrong Road To The Wrong Place, Randy Lee

Randy Lee

No abstract provided.