Law Commons^™

Insuring Domestic Tranquility: Lopez, Federalization Of Crime, And The Forgotten Role Of The Domestic Violence Clause, Jay S. Bybee

Scholarly Works

Lost in the discussions of the federalization of crime is the one clause in the Constitution that actually links Congress, the states, and the problem of local crime: the Domestic Violence Clause.

Long ignored by courts, the Domestic Violence Clause recognizes the primacy of the states in addressing domestic violence within their borders. It imposes on the federal government a duty to protect states against domestic violence, but only when states request assistance. The Domestic Violence Clause plays the role of a Tenth Amendment for crime. It is a reaffirmation of the enumerated powers doctrine and a promise of federal …

The Equal Process Clause: A Note On The (Non)Relationship Between Romer V. Evans And Hunter V. Erickson, Jay S. Bybee

Scholarly Works

In this Article, Professor Bybee uses the debate surrounding Romer v. Evans to reexamine the Supreme Court's decision in Hunter v. Erickson and the principle that a political majority may not restructure the political process to make it more difficult for a political minority to obtain favorable government action. Professor Bybee explains the questionable bases of Hunter and succeeding cases, and then turns to the Romer decision and discusses its incongruity with Hunter. After analyzing the meaning of Romer in light of Hunter and other “equal process” cases, Professor Bybee concludes that although the Court's analysis of Colorado's Amendment …

Who Executes The Executioner? Impeachment, Indictment And Other Alternatives To Assassination, Jay S. Bybee

Scholarly Works

This article addresses whether the Constitution protects a sitting President from indictment. The text of the Constitution is not clear on this question as it might be, but it is clear enough. No court has ever addressed the question of the President’s amenability to criminal charges, although the courts have considered the related question of whether federal judges can be subjected to criminal charges. Those courts have answered that judges and other officials are subject to criminal prosecution while in office. Congress has implicitly approved this conclusion in its passage of the Ethics in Government Act with its provision for …

Gateway Widens Doorway To Imposing Unfair Binding Arbitration On Consumers, Jean R. Sternlight

Scholarly Works

Hill v. Gateway, is but the most extreme example of a series of court decisions that allow large companies to impose potentially unfair binding arbitration agreements on unwitting consumers. The outcome in Gateway, however, is questionable on federal statutory, common law, and constitutional grounds.

Rethinking The Constitutionality Of The Supreme Court's Preference For Binding Arbitration: A Fresh Assessment Of Jury Trial, Separation Of Powers, And Due Process Concerns, Jean R. Sternlight

Scholarly Works

Courts and commentators have typically assumed that binding arbitration is both private and consensual, and that it therefore raises no constitutional concerns. This Article challenges both assumptions and goes on to consider arguments that arbitration agreements may unconstitutionally deprive persons of their right to a jury trial, to a judge, and to due process of law. The author argues first that courts' interpretation of seemingly private arbitration agreements may often give rise to "state action," particularly where courts have used a "preference favoring arbitration over litigation" to construe a contract in a non-neutral fashion. The author next draws on the …

Ulysses At The Mast: Democracy, Federalism, And The Sirens' Song Of The Seventeenth Amendment, Jay S. Bybee

Scholarly Works

One of the most remarkable aspects of the Constitution is the manner in which it marbles together people and states. By ratifying the Constitution, the states agreed to cede a portion of their sovereignty to a new entity, the ‘United States.’ The states granted to Congress their collective powers to impose taxes, incur debt, issue coin and securities, regulate commerce among the states and with other sovereigns, and control the engines of war. The states further relinquished their rights to act as independent sovereigns and enter into treaties with foreign countries, coin money, grant titles of nobility, and wage war. …

Bringing Forward The Right To Keep And Bear Arms: Do Text, History, Or Precedent Stand In The Way?, Thomas B. Mcaffee, Michael J. Quinlan

Scholarly Works

The Second Amendment is the black sheep of the constitutional family. Paralleling the Amendment's neglect and abuse by commentators is the curious onslaught of misinformation and fear in the public arena. In this Article, Professors McAffee and Quinlan begin the process of restoring the Second Amendment to its rightful place as an individual right enjoyed by the citizenry. Reviewing singular facets of the Second Amendment debate, including the relation between the Militia and Right to Arms Clauses, the meaning of “keep and bear,” the relevance of militia provisions today and the abandonment by the Supreme Court as an active participant …

Constitutional Limits On Regulating Private Militia Groups, Thomas B. Mcaffee

Scholarly Works

Read in a historical context, the Second Amendment provides clear answers to only a few of the questions regarding the appropriate limits of state regulatory power to restrict organizing and training private militia groups. Moreover, a basic analysis of the original materials yields conclusions that may be disappointing to both critics and sympathizers of the private militia movement. Critics may be unhappy with the conclusion that the individual right to bear arms offers important protection to at least some activities of private militia members. Sympathizers may be equally disappointed with the conclusion that activities which include full-scale preparation for a …