Law Commons^™

'"You Have Been In Afghanistan": A Discourse On The Van Alstyne Method, Garrett Epps

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This essay pays tribute to William Van Alstyne, one of our foremost constitutional scholars, by applying the methods of textual interpretation he laid out in a classic essay, "Interpreting This Constitution: On the Unhelpful Contribution of Special Theories of Judicial Review." I make use of the graphical methods Van Alstyne has applied to the general study of the First Amendment to examine the Supreme Court's recent decisions in the context of the Free Exercise Clause, in particular the landmark case of "Employment Division v. Smith". The application of Van Alstyne's use of the burden of proof as an interpretive tool …

The Irrational Supreme Court, Michael I. Meyerson

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Rationality is prized by lawyers. The 'rational review' test provides the constitutional minimum for due process and equal protection analysis. Unfortunately, even in an idealized world populated by perfectly rational people not all causes of irrational decision-making can be avoided. The basic nature of group decision-making inevitably creates the possibility of certain kinds of irrationality. The core of the problem is that, while deciding which party prevails is a binary decision [either one side or the other wins], there are often multiple issues that need to be decided in any particular case. The task of creating a system for selecting …

The Great Writ Of Incoherence: An Analysis Of Supreme Court's Rulings On "Enemy Combatants", Gregory Dolin

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On June 28, 2004, the United States Supreme Court released its much awaited decisions in the cases posing a challenge to the Executive's self-professed authority to detain and indefinitely hold individuals designated as "enemy combatants." The cases arose from the "war on terrorism" that was launched after the attack on the United States on September 11, 2001. When each decision is looked at individually, the result seems to make sense and, given the outcome (affording detainees rights of judicial review), feels good. Yet when these decisions are looked at collectively, it is hard to believe that they were issued by …

The Other Sullivan Case, Garrett Epps, Garrett Epps

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The standard triumphalist narrative of NEW YORK TIMES V. SULLIVAN celebrates the Supreme Court's defense of free speech and press in the case's vindication of powerful journalistic institution. Ignored in this story is the story of the local defendants, civil rights leaders in Alabama who had their solvency threatened by the state courts' vindictive action against them. These defendants challenged the segregated proceedings used in court to affix liability to them—but the Supreme Court ignored their arguments and ignored the racial-equality and individual-rights aspects of the case. From their point of view, SULLIVAN might be so unalloyed a triumph.

The Undiscovered Country: Northern Views Of The Defeated South And The Political Background Of The Fourteenth Amendment, Garrett Epps

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In 1866, Harper's Weekly announced a new series of woodcuts of Southern life with the remark, "[t]o us the late Slave States seem almost like a newly discovered country." It is difficult for Americans in the Twenty-First Century, in a culture of cable news coverage and national newspapers, to appreciate just how mysterious the former Confederacy seemed to Northerners in the months after Appomattox. It was not simply that four years of war had made communication between the two halves of the nation difficult - though that was true, and both Northern and Southern society had changed during the searing …

Ub Viewpoint – Journalists May Face Contempt For Protecting Sources, Eric Easton

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No abstract provided.

Gender Bias: Continuing Challenges And Opportunities, Rebecca Korzec

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In 1873 the U.S. Supreme Court denied Myra Bradwell the right to practice law, holding "the paramount destiny and mission of women are to fulfill the noble and benign office of wife and mother." Now, just slightly more a century later, two women sit on the Supreme Court, and almost half of all law students and law school faculty are women.

Ub Viewpoint – Dissolving The Shadows, Eric Easton

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No abstract provided.

The War On Terrorism And The Constitution, Michael I. Meyerson

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Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is …

Thoughts On Dastar From A Copyright Perspective: A Welcome Step Toward Respite For The Public Domain, Lynn Mclain

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Though other questions remain unresolved and other leaks unstemmed, Dastar is a welcome step towards regaining the public domain, and towards establishing that the confines of the public domain, with regard to nondeceptive reproduction of public domain works, and preparation of derivative works based upon them, must be delimited by only the copyright and patent laws.

This article will provide a background discussion of the copyright and patent schemes and their delineation of the public domain. It then will discuss the role of trademark law in that balance, and some of the case law regarding both § 43 of the …

Assessing The New Judicial Minimalism, Christopher J. Peters

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In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I …

The Reconceptualization Of Legislative History In The Supreme Court, Charles Tiefer

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In 1995, the Supreme Court began to embrace a approach to interpreting Congressional intent. From that year forward, the Breyers-Stevens model of legislative history, or "institutional legislative history," has seen significant success, emerging in the shadows of the success Justice Scalia's enjoyed while promoting his brand of textualism in the early 1990s. In developing a new way to view Congressional intent, Justices Breyers and Stevens synthesize information gathered from congressional report details, preferably attached to bill drafting choices, thereby renouncing Scalia's reliance on the purposes espoused by the Congressional majority. This new approach, the author contends, rejuvenated the court's approach …

Consistently Inconsistent: The Supreme Court And The Confusion Surrounding Proportionality In Non-Capital Sentencing, Steven P. Grossman

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(Adapted by permission from 84 Ky. L. J. 107 (1995)) This article examines the Supreme Court's treatment of the Eighth Amendment with respect to claims of excessiveness regarding prison sentences. Specifically, it addresses the issue of whether and to what degree the Eighth Amendment requires that a punishment not be disproportional to the crime punished. In analyzing all of the modern holdings of the Court in this area, one finds significant fault with each. The result of this series of flawed opinions from the Supreme Court is that the state of the law with respect to proportionality in sentencing is …

Proportionality In Non-Capital Sentencing: The Supreme Court's Tortured Approach To Cruel And Unusual Punishment, Steven P. Grossman

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This Article examines the Supreme Court's treatment of the Eighth Amendment with respect to claims of excessive prison sentences. Specifically, it addresses the issue of whether and to what degree the Eighth Amendment requires that a punishment not be disproportionate to the crime. In analyzing all of the modern holdings of the Court in this area, this Article finds significant fault with each. The result of this series of flawed opinions from the Supreme Court is that the state of the law with respect to proportionality in sentencing is confused, and what law can be discerned rests on weak foundations. …

Justice Brennan's Gender Jurisprudence, Rebecca Korzec

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During his thirty-four year tenure on the Supreme Court, Justice William Joseph Brennan, Jr. demonstrated unparalleled sensitivity to the protection of individual rights. Justice Brennan's landmark opinions included Baker v. Carr, Goldberg v. Kelly, and New York Times Co. v. Sullivan. before Brennan, Supreme Court jurisprudence exalted judicial passivity by employing techniques for avoiding constitutional issues, such as abstention, comity, exhaustion of remedies and the political question doctrine.

Against this background, Brennan became an active judicial voice in a series of innovative landmark cases, including decisions requiring federal officials to pay damages for violation of citizens' constitutional rights; authorizing federal …

The Admission Of Government Fact Findings Under Federal Rule Of Evidence 803(8)(C): Limiting The Dangers Of Unreliable Hearsay, Steven P. Grossman, Stephen J. Shapiro

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Federal Rule of Evidence 803(8)(C), an exception to the rule against admission of hearsay, permits introduction of public records or reports containing the fact findings of the reporter without requiring the reporter to appear at trial. These fact findings can be based upon the reporter's own observations and calculations or information imparted to the reporter from sources having no connection to any public agency whatsoever. Rule 803(8)(C) has also been used as the vehicle for presenting juries with fact findings from hearings conducted by public officials. The rule would seem to allow these fact findings even though the opponent had …

The Right To Speak, The Right To Hear, And The Right Not To Hear: The Technological Resolution To The Cable/Pornography Debate, Michael I. Meyerson

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The advent of cable television presented a new opportunity to consider the competing interests on each side of the free speech/pornography debate. This Article attempts to construct an analysis that will be consistent with Supreme Court teaching on how government, under the first amendment, may constitutionally regulate legal obscenity, particularly in the name of protecting those who wish to avoid exposure to such material.

The Article shows how, unlike earlier battles over technology and pornography, cable television presented the novel opportunity to have a technological rather than a censorial solution to this difficult problem.

An Anti-Antitrust Activist?; Podium, Robert H. Lande

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No abstract provided.

Commentary: Rummel V. Estelle: Mockingbirds Among The Brethren, Kenneth Lasson

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In this commentary Professor Lasson discusses the Supreme Court's decision in Rummel v. Estelle and reveals a poignant personal memorandum that reflects the analysis of human values necessarily performed by whichever Justice cast the deciding vote.

Commentary: Rummel V. Estelle: Mockingbirds Among The Brethren, Kenneth Lasson

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In this commentary Professor Lasson discusses the Supreme Court's decision in Rummel v. Estelle and reveals a poignant personal memorandum that reflects the analysis of human values necessarily performed by whichever Justice cast the deciding vote.

Survey Of Criminal Procedure — Alternative Dispositions Of Defendants, Charles Shafer

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The criminal justice system provides various alternatives for the disposition of criminal defendants. Three of these alternatives, pretrial intervention, drug treatment, and probation, were dealt with in recent New Jersey Supreme Court decisions. The court examined the substantive criteria and procedures used in assigning each disposition and focused primarily on the desire to provide rehabilitative opportunities for each defendant. This note will examine those decisions and the implications of the court's concentration on the goal of rehabilitation.