Law Commons^™

The State Response To Hazelwood V. Kuhlmeier, Tyler J. Buller

Tyler J. Buller

Student journalism was dealt a significant blow in 1988, when Hazelwood v. Kuhlmeier gave school officials a license to censor any student speech inconsistent with a school’s “pedagogical concerns.” Scholars and advocates have long argued that Hazelwood has allowed widespread censorship of stories criticizing school officials and articles concerning controversial topics like sex, drinking, and drug-use. In the aftermath of Hazelwood, nine states have adopted so-called “anti-Hazelwood” statutes and regulations that place additional protections between student journalists and school officials. These anti-Hazelwood measures have a mixed track record and are rarely litigated. Until now, there has been virtually no data …

Plotting Privacy As Intimacy, Heidi Reamer Anderson

Heidi R Anderson

In Plotting Privacy as Intimacy, I use a two-dimensional Venn diagram to plot and evaluate a subset of privacy law decisions. In each plotted case, the general question was whether a person’s action should be afforded legal protection as private. How the court answered that question can be explained by examining whether the specific facts of the case fall within or outside two circles of intimacy. One circle represents the intimacy of the space in which the action occurs. This spatial intimacy is based primarily on the proximity of the identified space to a secluded area of the home. Within …

Plunging Into Endless Difficulties: Medicaid And Coercion In The Healthcare Cases, Kevin Outterson

Kevin Outterson

Of the four discrete questions before the Court in National Federation of Independent Business v. Sebelius, the Medicaid expansion held the greatest potential for destabilization from both a statutory and a constitutional perspective. As authors of an amicus brief supporting the Medicaid expansion, and scholars with expertise in health law who have been cited by the Court, we show in this article why NFIB is likely to fulfill that promise.

For the first time in its history, the Court held federal legislation based upon the spending power to be unconstitutionally coercive. Chief Justice Roberts’ plurality (joined for future voting purposes …

A Dangerous Distinction: The Deconstitutionalization Of Private Speech, Derigan Silver, Ruth Walden

Derigan Silver

In the mid-1960s the U.S. Supreme Court began applying a Meiklejohnian approach to certain First Amendment claims, using a self-government rationale to justify enhanced protection for freedom of expression on matters of public concern in cases involving defamation, false light invasion of privacy, government employees’ speech, and intentional infliction of emotional distress, as well as others. The Court, however, refrained from acknowledging the remainder of Meiklejohn’s argument — that private speech is outside the purview of the First Amendment and protected only by the Due Process Clause of the Fifth Amendment. In the wake of Supreme Court defamation rulings in …

State Constitutional Prohibitions On Special Laws, Justin R. Long

Justin R Long

Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general” laws that would apply equally to all members of the regulated class. For a brief period, these clauses were enforced in the courts—but more to protect economic elites than the democratic …

Burdens Of Proof And Qualified Immunity, Kenneth J. Duvall

Kenneth J Duvall

Despite the need to strike a proper balance between effective § 1983 suits to deter government misconduct and corresponding, robust defenses to deter frivolous suits, courts across the nation cannot agree on the fundamental questions of what the proper defenses to § 1983 actions are or how to allocate the burdens of proof in such litigation. This Article would remedy this situation, proposing an approach that offers both a single defense to § 1983 claims and a uniform allocation of the burdens of proof when that defense is raised. In Part I, this Article briefly explains the burdens of proof, …

The Contradictory Stance On Jury Nullification, Kenneth J. Duvall

Kenneth J Duvall

Arguments about jury nullification in both courts and academia proceed under the assumption that either proponents and opponents of nullification could decisively carry the day. But as current Supreme Court law stands, nullification is at once prohibited and protected. This Article shines a light on the uneasy, confusing compromise in the doctrine, and finds that the two ways out of the dilemma—fully embracing nullification, or rejecting it—are equally taboo to the American legal mind. In Part I, this Article briefly explains the contested history of nullification. In Part II, it examines modern courts’ intermittent recognition of nullification. Part III then …

Of “Just Systems” And Lotteries: Thoughts And Reflections On Maples V. Thomas, Ryan K. Melcher

Ryan K Melcher

In 2012, the Supreme Court handed down its seven-to-two ruling in the case of Maples v. Thomas, a sad tale of attorney-ethics disasters and a seemingly broken (assuming it ever worked) Alabama criminal-justice system. Although the Court held that the “extraordinary” facts of the case warranted excusing Maples’s procedural default in his federal habeas corpus petition (namely, his failure to file a petition in time), it did not make entirely clear whether this was a one-time-only deal or a “template” (as dissenting Justice Scalia asserted) for future petitioners seeking relief based on similar falters of their post-conviction-level attorneys. This Article …

The Affordable Care Act And Religious Freedom: The Next Battleground, Terri R. Day

Terri R. Day

This article presents a comprehensive analysis of the Health and Human Services (HHS) Mandate, which is the controversial required insurance coverage for preventative and wellness services, which include all FDA approved contraceptives, sterilizations, and related patient education and counseling. Failure to provide this coverage will result in an employer penalty. Non-exempt religious employers/insurers contend that this Mandate requires them to violate their freedom of conscience or suffer a penalty. The article discusses the religious reaction to the Mandate and provides a thorough legal analysis of the constitutional issues. Based on the recent health care decision and the likelihood that the …

The Unity Thesis: How Positivism Distorts Constitutional Argument, John Lunstroth

John Lunstroth

Democracy and civil rights are distorted and polarizing ideas that pit the rich against the poor, and should be abandoned in favor of an emphasis on the common good. To reach that conclusion I argue the US Constitution is and has always been designed to protect the wealth of the ruling class. All political associations or states have this as a central idea. My argument rests on a unique jurisprudential principle, the Unity Thesis. The main school of legal theory, positivism (the science of law) is based on the idea law is always separate from morals. I argue the opposite, …

Lies, Damned Lies, And Journalism: Why Journalists Are Failing To Vindicate First Amendment Values And How A New Definition Of “The Press” Can Help, Chris Edelson

Chris Edelson

This article identifies a specific problem – journalists who fail to provide the public with the accurate information needed to foster informed public opinion – and offers a specific solution: defining “the press” to provide protections and prestige only to those whose work actually advances First Amendment values.

American journalistic norms facilitate lying by politicians, candidates for office, and other public figures. Because many journalists are committed to the ideal of balance over truth, they are often incapable of calling out lies. Instead, they create a false equivalence by suggesting there are two sides to every argument. I call this …

Presidential Inaction And The Separation Of Powers, Jeffrey Love, Arpit Garg

Jeffrey Love

James Madison famously articulated a functional account of our governmental structure; he and his Federalist brethren created overlapping authority to prevent any single branch of government from acting unilaterally to dictate policy for the nation as a whole. And for more than two hundred years, the focus has been on just that: action. But the Framers and their intellectual heirs have failed to update their story to account for the government we have. In the modern administrative state, the President’s refusal to enforce duly enacted statutes—what we call “presidential inaction”—will often dictate national policy and yet will receive virtually none …

The Constitutional Referendum Of 1866: Andrew Johnson And The Original Meaning Of The Privileges Or Immunities Clause, Kurt T. Lash

Kurt T. Lash

Fourteenth Amendment scholars commonly assume that there is a relative silence in the historical record regarding public discussion of the proposed Amendment. In fact there was rich and extended public debate regarding the meaning of the Section One of the Amendment and the need to protect the privileges and immunities of citizens of the United States. These robust debates did not take place in state legislative assemblies, but in the campaign speeches, newspaper editorials and public documents accompanying the mid-term elections of 1866. Both Democrats and Republicans made the ratification of the Fourteenth Amendment a central part of their party’s …

A Right To Speak And Spend: Citizens United And Its Consequences For Objective Journalism, Michael Ellement

Michael Ellement

• Article puts forth two concerns for the future of journalism following the Supreme Court's decision in Citizens United v. F.E.C. First, Citizens United blurred the line as to what the "press" is. Prior to Citizens United, press entities were traditionally exempt from campaign finance regulations because of their status as non-partisan information sources. This gave the press a unique status to participate in political process not enjoyed by other groups. Such a distinction has been eviscerated by Citizens United. All corporations now have the equal right to disseminate unlimited amounts of advocacy for a candidate or political position. Second, …

Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

Losers' Law: A Metatheory for Legal Disappointments

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

"Losers"

We are all losers at one time or another. If you're in "economy class," you can't use the "business class" toilet, even if it's located just two steps in front of your seat. You must instead go to the back of the plane and use the toilets designated for economy class passengers. The operative rule prohibits you, as a mere economy class passenger, from exercising the much more convenient choice of using the business class …

Living On A Prayer: An Inquiry Into Whether A State University’S Approval Of A “Prayer Room” In A University Facility For A Muslim-Student Organization Offends The Establishment Clause Set Forth In The First Amendment, Brandy G. Price

Brandy G Price

Sitting in the middle of campus, the University of North Carolina at Chapel Hill’s (UNC) Carolina Union is the Mecca of student expression and student governance. Students fill every corner of the facility while indulging in conversation, studying, eating and most commonly student organizational meetings and forums. The Carolina Union allows recognized student organizations to reserve its facility meeting rooms for “meetings, programs, workspace, and the distribution of information.” These organizations consist of religious and non-religious affiliations. The Muslim Student Association, commonly known as the MSA, has reserved a meeting room in the Carolina Union as a prayer room. The …

The Second Amendment: What "Arms" Are Protected?, James M. Ramey

James M Ramey

If the Supreme Court wants to give some lasting meaning to the Heller decision and the Second Amendment, it needs to first clearly establish what criteria a firearm needs to satisfy outside the categorical rules before it will be a protected arm under the in common use test. In doing so it needs to provide factors for what makes a weapon “dangerous and unusual” (whether popularity based or otherwise) and clarify to what extent the typically possessed by law abiding citizens language gets applied to the in common use analysis in addition to what it means to be “typically possessed …

Elections Across The Pond: Comparing Campaign Finance Regimes In The United States And The United Kingdom, Kathleen Hunker

Kathleen Hunker

The article examines campaign finance regulations in two distinct political systems, the United States and the United Kingdom, and fleshes out how ‘constitutionalism’ — defined as the commitment to institutional arrangements that limit government authority — affects public efforts to curtail money in elections. Specifically, it looks at how the constitutional arrangements of the United States and the United Kingdom either facilitate or frustrate the ability of public bodies to enact prevailing public opinions on whether the nation’s underlying principles favor unrestrained political liberty or a level of political equality beyond the simple contours of one-man-one-vote. Moreover, the article compares …

Automatic Continuing Resolutions: A Cure Worse Than The Ailment, Philip J. Candreva

Philip J. Candreva

Nearly every year Congress fails to pass all of the appropriations acts before the start of the federal fiscal year. This necessitates the passage of a temporary spending measure – a continuing resolution – or there will be at least a partial government shutdown. Both contingencies are costly and disruptive to the efficient and effective operation of government. Over the last 30 years, there have been several legislative proposals to enact an automatic continuing resolution mechanism that would mitigate the costs to public management. Such proposals, however, are costly for political and legal reasons. This article examines the arguments for …

The Individual Mandate's Due Process Legality: A Kantian Explanation, And Why It Matters, Peter B. Bayer

Peter B Bayer

ABSTRACT The Individual Mandate’s Due Process Legality: A Kantian Explanation, and Why It Matters by, Prof. Peter Brandon Bayer In its recent National Federation of Independent Business v. Sebelius, __ U.S. __, 12 Westlaw 242810, one of the most controversial decisions of this young century, an intensely divided Supreme Court upheld under Congress’ power to tax the Patient Protection and Affordable Care Act’s most provocative feature, the Individual Mandate (“IM”). In so doing, the Court rejected what appeared to be the IM’s more applicable constitutional premise, Congress’ authority to regulate interstate commerce. Yet, neither the Constitution’s Taxing Clause nor its …

Prime Time For Japan To Take Another Step Forward In Lay Participation: Exploring Expansion To Civil Trials, Matthew J. Wilson

Matthew J. Wilson

As juries in the U.S. and other parts of the world have increasingly come under attack, many countries in Asia have recently turned to juries or quasi-juries in an effort to enhance judicial credibility, ensure justice, facilitate civic engagement, and even stimulate economic reform and recovery. In fact, Japan has led the recent movement of citizen participation in criminal judicial proceedings, and other Asian powers including South Korea, Taiwan, and China have followed its lead to varying degrees. Eyes around the world are focusing on Japan to see how its new jury system (more commonly known as its “lay judge …

Prime Time For Japan To Take Another Step Forward In Lay Participation: Exploring Expansion To Civil Trials, Matthew J. Wilson

Matthew J. Wilson

As juries in the U.S. and other parts of the world have increasingly come under attack, many countries in Asia have recently turned to juries or quasi-juries in an effort to enhance judicial credibility, ensure justice, facilitate civic engagement, and even stimulate economic reform and recovery. In fact, Japan has led the recent movement of citizen participation in criminal judicial proceedings, and other Asian powers including South Korea, Taiwan, and China have followed its lead to varying degrees. Eyes around the world are focusing on Japan to see how its new jury system (more commonly known as its “lay judge …

My Space Or Theirs? Trying To Reconcile The Messy Judicial Doctrine For Off-Campus Student Expression, Ryan C. Tuck

Ryan C Tuck

The Supreme Court's student expression jurisprudence is notoriously muddled, but regarding one major question, the Court basically has remained silent: whether and when schools can regulate student expression that originates physically beyond the campus and lacks any indicia of school sponsorship. The Court has included some suggestive language in its four landmark student expression cases, including its most recent decision in 2007, but the Court never has resolved this issue. And after denying a pair of petitions for certiorari earlier this year, the Court appears unlikely to do so anytime soon. (The Court denied a similar petition the previous term.) …

Not “Politics As Usual”: A Hypothesis For Why Doctrine Matters In Judicial Decisionmaking, Brett Waldron

Brett Waldron

No abstract provided.

Losers' Law: A Metatheory For Legal Disappointments, John Martinez

John Martinez

The American legal system generates losers every day. Our adversarial system of litigation practically guarantees that every lawsuit will produce a winner and a loser. When the legislature or the people directly through initiatives enact legislation that further restricts land use, landowners hoping for greater land development options are transformed into losers as well.

Losers can choose to voice their grievances, to exit the system, or to resort to illegal behavior. But once voice is exercised, and exit and illegality are rejected as viable choices, we want losers to select "acceptance" of their losses, because this helps to maintain the …

Prisoners Of Congress: The Constitutional And Political Clash Over Detainees And The Closure Of Guantanamo, David J. Frakt

David J Frakt

Starting in June 2009 and continuing through the National Defense Authorization Act of 2012, Congress placed an increasingly stringent set of legislative restrictions, primarily through measures in appropriations bills restricting spending, on the transfer or release of Guantanamo detainees, including restrictions on transfer to the U.S. to face criminal trials in federal court, and restrictions to countries to which detainees could be resettled. These restrictions are so onerous that they have delayed, and in some cases blocked, the transfer of detainees who have been administratively cleared for release or ordered released through habeas corpus litigation, rendering these detainees “Prisoners of …

Anyone A Potential Suspect, Anywhere In The World: Why The Counterrorism Provisions In The National Defense Authorization Act Of 2012 Evidence America’S Decision To Make Its Values Subservient To Its Security, James R. Dickinson

James R Dickinson

The National Defense Authorization Act of 2012 [NDAA] grants the executive power to detain terror suspects anywhere in world. Although it is yet unknown how the NDAA’s detention provisions will be interpreted and applied, the fact that Congress passed, and the President signed, a law that can reasonably be interpreted to allow for the indefinite detention of American citizens (captured on U.S. soil) without due process of law evidences a troubling shift away from America’s most sacred values

Representation Of The States Or Of The People Of The State: An Analysis Of The Seventeenth Amendment In A Federal System, Jennifer G. Rowan

Jennifer G. Rowan

There have been many changes to the election’s process through amendments to the Constitution. However, there is one that has altered the intention of the founding fathers dramatically. The Seventeenth Amendment overturned an election process established to further the interest of the States in a federal republic in favor of the direct democracy election that was originally established only for House of Representatives on the federal level. This paper seeks to explore the founders’ intents on the election of Senators and the changes to this process. Part I will explore the founding fathers’ intents and the debates surround the Constitution’s …

Bridging The Divide: Finding Common Ground On The Modern Chevron Debate, Nicholas C. Stewart

Nicholas C Stewart

Traditionally, when reviewing an administrative agency’s adjudication or rulemaking under National Labor Relations Board v. Hearst Publications, Inc., 322 U.S. 111 (1944), courts would ask whether the question before them was one of law or a mixed question of law and fact. While the former was accorded no deference, the latter received a great deal. Despite this seemingly simple construct, courts persistently confused questions of law with mixed questions, and vice versa, resulting in the inconsistent application of standards of review. In Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), the U.S. Supreme Court drastically …

Family Law's Challenge To Religious Liberty, Raymond C. O'Brien Professor

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …