Law Commons^™

Manipulated Doctrines, Improper Distinctions, And The Law Of Racial Vote Dilution, Avram D. Frey

Avram D Frey

This paper is about the law of racial vote dilution. Racial vote dilution is both a constitutional and statutory harm, however, because race doctrine requires specific intent, the statutory arm under the Voting Rights Act is dominant in this field. In my paper, I attempt to decipher an underlying theory to unite the doctrine in this context. I then critique the theory which I conclude best fits the doctrine on normative grounds.

Constitutional Responses To Paradigmatic Shifts In Technology, Noel Cox

Noel Cox

The technological revolution affecting the global economy has profound implications not merely for society, but also for global and national legal systems. This paper considers the nature of the constitutional responses to paradigmatic shifts in technology. It considers the nature of constitutions and of their relationship with technology. It then proceeds to briefly examine several seminal technological changes in the past, in order to identify common elements in relation to constitutions and technology. It then looks at several contemporary technological revolutions, with a similar purpose. Finally, it seeks to draw some common themes from these examples, with the intention of …

Executive Parity: How The Structure Of Executive Branches At The City, State, And Federal Level Impacts Presidents And Presidential Candidates., Alexandra R. Harrington

Alexandra R. Harrington

Abstract: Executive Parity: How the Structure of Executive Branches at the City, State, and Federal Level Impacts Presidents and Presidential Candidates.

Alexandra R. Harrington, Esq.

With the specter of the 2008 presidential election already upon the electorate and daily reminders of its importance and the multitude of candidates seeking office broadcast through the media, there is perhaps no better time to examine the types of institutional structures which give presidential candidates the greatest exposure to and experience in the powers, obligations, and identity of an executive in our three branch system of government. Without examining personalities or specific issues that …

Preconstitutional Federal Power, Matthew L.M. Fletcher

Matthew L.M. Fletcher

In two fields of constitutional law, the Supreme Court has acknowledged that the federal government may possess preconstitutional power, or national authority derived not from the Constitution but from the very fact of sovereignty. This Article analyzes the two areas of law – the Foreign Affairs Power and the Indian Affairs Power – and assesses their viability in future cases. The case recognizing a preconstitutional Foreign Affairs Power resting with the Executive branch, United States v. Curtiss-Wright Export Corp., suffers from poor historical reasoning and has little precedential weight in modern foreign affairs cases, but has never been overruled. The …

A Comprehensive Analysis Of The National Security Agency’S Wiretapping Program And Its Correlation With The Foreign Intelligence Surveillance Act, Michael Fraggetta

Michael Fraggetta

ABSTRACT This paper is an analysis of the unitary executive theory as ascribed to by the Bush/Cheney administration. The central focus of the paper analyzes the NSA wiretapping program, which was made public in 2005 and the correlation and support found for the program in the unitary executive theory. The paper proceeds with a brief history of the warrantless surveillance in the United States and the evolution of electronic surveillance jurisprudence culminating with the passage of the Foreign Intelligence Surveillance Act in 1978. The paper then explores the NSA program and analyzes, in depth, the legal arguments set forth by …

Constraints On The President's Power To Interpret Common Article Three Of The Geneva Conventions, Heather Sensibaugh

Heather Sensibaugh

This paper explores whether the President has authority to violate customary international law norms prohibiting outrages upon personal dignity, in particular humiliating and degrading treatment by his own interpretation in the form of an executive order pursuant to the Military Commissions Act of 2006. This article argues that, in interpreting the MCA, the President is bound to comply with definitions provided by Congress and where no definitions are specified. The President’s interpretive authority is constrained by customary meanings of Common article 3 of the 1949 Geneva Conventions.

Where Are Your Papers? Photo Identification As A Prerequisite To Voting, Michael J. Kasper

Michael J. Kasper

ABSTRACT WHERE ARE YOUR PAPERS? Photo Identification as a Prerequisite to Voting Remember the old war movies? Richard Attenborough or William Holden is slowly walking down misty, Parisian streets, the collar of his trench turned up, the brim of the fedora pulled low. A black sedan screeches around the corner and screams to a stop in front of him, before he has time to react. Soldiers bound from the car, pistols draw, and bark “Vhere are your papers?” When did America become this movie? The U.S. Supreme Court will take up this question this term. This article explores five recent …

Fallibility + Unchecked Power = Trouble, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.

Of Exigent Circumstances And Constitutional Authority: Congress, The President, And Domestic Electronic Surveillance, Lawrence Friedman, Victor Hansen

Lawrence Friedman

In this article, we argue that the constitutional structures and doctrines that functioned well before September 11 have not become liabilities since then. In particular, the relative powers the Constitution allocates between the Congress and the President in matters of national security have, in the light of experience, served the nation well and are likely to continue to do so, for the careful balance the framers struck between legislative and executive authority has the virtue of adaptability to a changing—and dangerous—world. Further, experience has demonstrated that the Constitution’s default lawmaking scheme, which centers on bicameral legislative enactment, presentment, and all …

Does Australia Have A Constitution? Part I -- The Powers Constitution, Howard Schweber, Ken Mayer

Howard Schweber

The conventional wisdom about the Australian Constitution is that it neither says what it means, nor means what it says. The gap between language and meaning is starkest in the sections on executive power, in which the explicit language vesting all executive power in the Governor-General is supplanted by the conventions of Responsible Government, according to a universally accepted view of what the constitutional framers intended to create. One consequence of this divergence between language and practice is that constitutional interpretation normally requires a series of finesses, in which much of the text is read out of the document entirely. …

Does Australia Have A Constitution? Part Ii -- The Rights Constitution, Howard Schweber, Ken Mayer

Howard Schweber

In this article, we visit the question of whether Australia has a “genuine” constitution with respect to guarantees of individual rights. The Australian constitutional text lacks explicit rights guarantees, but various types of rights protections have been derived from the text through judicial construction. To test the Australian model, we compare three other cases -- the United States, the U.K., and Israel -- with respect to the relationship between text, convention, and constitutional ethos. Australia does not fit cleanly into any of these three models, although it displays elements of each. More importantly, the High Court’s extrapolation of rights from …

Crawford’S Aftershock: Aligning The Regulation Of Non-Testimonial Hearsay With The History And Purposes Of The Confrontation Clause, Fred O. Smith

Fred O. Smith Jr.

This Article explores what the purposes, history and text of the Confrontation Clause have to say about the admission of non-testimonial hearsay statements. Part I examines historical sources such as the common law near the Founding, as well as the text of the clause, and concludes that non-testimonial hearsay was one of the ills that the Confrontation Clause was designed to protect. Part I additionally proposes a two-tiered approach to interpreting the Confrontation Clause, in which testimonial statements receive the most vigorous form of constitutional scrutiny, but non-testimonial statements receive meaningful scrutiny as well. The United States Constitution is no …

Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman

James L. Huffman

The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.

Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of gold …

The Admiralty Jurisdiction Of Torts And Crimes And The Failed Search For Its Purposes, Graydon S. Staring

Graydon S. Staring

This article views the jurisdiction, or power, of the Admiral in its historic setting as that of a governor, a ruler, of the offshore waters claimed by the kings. He had military, legislative (regulatory), police and judicial powers, the recognition of which became customary for maritime nations. The judicial jurisdiction comprised the legal questions that arose from his other functions. Like the rest of his powers, it was territorial rather than defined by other subject matter. This was the situation when the Constitution was adopted, when admiralty in its broadest form known to us was found in the colonies and …

The Debate Over An Economic Interpretation Of The Constitution: Where Has Beard Taken Us And Where Are We After Mcguire’S “New” Interpretation?, Joseph Silvia

Joseph Silvia

The Debate over an Economic Interpretation of the Constitution: Where has Beard taken us and where are we after McGuire’s “New” Interpretation? Since 1913, developing a complete analysis on the creation of the American Constitution necessarily requires a thorough consideration of economics. Until Charles A. Beard published his An Economic Interpretation of the Constitution of the United States (1913), the standard account of the Founding Era was that the Framers acted out of idealism – a disinterested, public-regarding impulse to promote democratic ideals for which the Revolution was fought and the American Republic was founded. Beard challenged this idealistic view …

Commentary: Justice Carter's Dissent In Hughes V. Superior Court Of Contra Costa County: Harbingers Of The 60'S Civil Rights Movement And Affirmative Action?, Frederic P. White

Frederic P. White Jr.

Commentary Abstract: Justice Jesse Carter, known as "The Great Dissenter" on the California Supreme Court for 20 years, wrote a dissent in opposition to allowing black workers to picket for employment in Richmond, California in the 1940's. The commentary explores how some of the language used in Justice Carter's dissent eventually adapted to the rhetoric used in the 1960's Civil Rights Movement and as in the continuing Affirmative Action debate.

Changes In Modern Military Codes And The Role Of The Military Commander: What Should The United States Learn From This Revolution?, Victor M. Hansen

Victor M. Hansen

This article examines the renewed interest which legal scholars, courts, and practitioners are giving to military justice. In light of this heightened interest, there have been a number of calls to reform the Uniform Code of Military Justice. Specifically, there is pressure to change and reduce the role of the military commander in the justice system. This pressure for change comes in part due to the changes made in the military codes of the United Kingdom and Canada, two countries which share a common tradition with the United States. The overall effect of these changes has been to significantly reduce …

A Wolf In Sheep's Clothing: The Unilateral Executive And The Separation Of Powers, Thomas J. Cleary

Thomas J Cleary

This article considers executive power relative to the implied confines of the separation of powers doctrine. The goal of this article is to consider whether the separation of powers may surreptitiously veil the true extent of executive power. More specifically, this article considers the sources and legitimacy of unilateral executive action. In doing so five sources of support for such action are identified. These five sources include: (1) the unitary nature of the executive office, (2) implied executive powers under the Constitution, (3) executive tools such as signing statements, executive orders, and executive agreements, (4) supportive legislation, and (5) the …

"A Bulwark Against Anarchy": Affirmative Action, Emory Law School, And Southern Self-Help, William B. Turner

William B Turner

This article presents archival evidence about Pre-Start, Emory Law School’s affirmative action program from 1966 to 1972. It places that evidence into the context of current legal and scholarly debates about affirmative action in law school admissions and demonstrates that Pre-Start is an extremely important case study for anyone who wishes to think carefully about this important topic. I perform post-hoc strict scrutiny on Pre-Start, showing that it meets, not only the standard of the majority in Grutter v. Bollinger (539 U.S. 306 (2003)), but even the much more exacting standard of dissenting Justice Clarence Thomas. Because white supremacists are …

When The Immovable Object Meets The Unstoppable Force: Search And Seizure In The Age Of Terrorism, Anthony C. Coveny

Anthony C Coveny Ph.D.,J.D.,MA.

Abstract In 2001, the airborne attack on the World Trade Center, unlike any other in U.S. History, shook America to her core. In the process, the hand of government was strengthened at the expense of the constitutional liberties afforded by the Fourth Amendment. MacWade v. Kelly is just one more example of the increasing governmental interest in securing this nation from another terrorist attack, and in so doing, subjecting Americans to more “big brother” government. In MacWade, the New York Police Department faced down a 42 U.S.C 1983 challenge to its Container Inspection Program (CIP) in the name of security. …

The Insanity Of Mens Rea: Due Process And The Abolition Of The Insanity Defense, Jean K. Phillips, Rebecca E. Woodman

Jean K Phillips

The Insanity of the Mens Rea Model:

Due Process and the Abolition of the Insanity Defense.

Jean K. Gilles Phillips and Rebecca E. Woodman

Abstract

In the last 15 years a flurry of legislative activity has taken place as states have attempted to redefine the insanity defense. This article focuses on those states who chose not just to refine the definition of insanity, but to completely abolish it as an affirmative defense.

During the 2006 Supreme Court term many believed that the Court would answer the question of whether the Due Process Clause protects the right of the accused to …

The Future Of School Finance Litigation, James E. Ryan

james e. ryan

Just about everyone who writes on the topic agrees that school finance litigation, going forward, will be inextricably linked with the standards and testing movement. The basic idea is that state constitutions can and should be read to protect the right to an adequate education. Academic standards, in turn, define what counts as an adequate education. This leaves to courts in school finance cases the task of determining if schools have sufficient resources to meet the standards -- and thus provide an adequate education. Linking school finance litigation to standards and testing, so everyone also seems to agree, will benefit …

Background Principles And The Rule Of Law: Fifteen Years After Lucas, James L. Huffman

James L. Huffman

Abstract

The Supreme Court’s 1992 decision in Lucas v. South Carolina Coastal Council was welcomed by property right advocates. Justice Scalia’s opinion for the Court established a categorical taking where all economic value is lost as a result of regulation. Not surprisingly, advocates of unconstrained environmental and land use regulation were dismayed, although many were quick to suggest (hopefully) that Lucas’s impacts would be minimal since most regulations do not destroy all economic value.

Fifteen years later some who saw only dark clouds on the regulatory horizon as a consequence of Lucas now see a rainbow with a pot of …

Originalism And The Problem Of Fundament Fairness, R. George Wright

R. George Wright Professor

Originalism is perhaps the most prominent theory of how to interpret the Constitution. Originalism, however, rests upon a process of constitutional drafting and ratification that systematically excluded important demographic groups. Originalism thus rests on a fundamental injustice. Crucially, this fundamental injustice is not confined to the past once the various excluded groups gain the franchise. Originalist theories remain crucially tainted and skewed, particularly with respect to constitutional questions on which originally excluded groups had interests diverging from those of non-excluded groups. The continuing effects of the fundamental unfairness of the constitutional drafting and ratifying process are explored through considering the …

Post-Trauma: Cambodian Refugees And Social Security's Disability Fraud Investigations, Theodore A.B. Mccombs

Theodore A.B. McCombs

Since 2003, the Oakland unit of Social Security’s Cooperative Disability Investigations (“CDI”) program has targeted certain Cambodian refugee applicants with Post-Traumatic Stress Disorder and Depression for fraud investigations. The practices of Social Security’s anti-fraud program in Oakland reveal disturbing disadvantages to Cambodian refugee applicants in particular, including institutional prejudices in Social Security’s rules and CDI agents’ gross insensitivity to claimants’ impairments and cultural realities. This Note examines these disadvantages under the legal norms of national origin discrimination, disability discrimination, and due process, and concludes with a policy proposal on how Social Security might better protect claimants’ rights and interests while …

Of Remedy, Juries, And State Regulation Of Punitive Damages: The Significance Of Philip Morris V. Williams, Michael P. Allen

Michael P Allen

On February 20, 2007, the United States Supreme Court announced an important decision further limiting punitive damage awards. That decision, Philip Morris USA v. Williams, 127 S. Ct. 1057 (2007), is the latest in the Court’s decade-plus long project to explain in what respects the United States Constitution limits this particular remedy. While apparently modest, the ruling is a highly significant step in the Court’s development of constitutional doctrine in an area of great public interest.

This Article considers the implications of Philip Morris on the Court’s recently-developed constitutional jurisprudence concerning punitive damages. It has four parts in addition to …

Deliberate Indifference, Professional Judgment, And The Constitution: On Liberty Interests In The Child Placement Context, Mark Strasser

Mark Strasser

Courts and commentators often argue that because adoption is created by state law, there can neither be a constitutional right to adopt nor to be adopted. They sometimes suggest that the major Supreme Court case in this area--Smith v. Organization of Foster Families For Equality and Reform (OFFER)—expressly rejects that there can be rights in the adoption context. Yet, the relevant constitutional jurisprudence is much more nuanced than these courts and commentators suggest, because the issue has not been correctly framed. The focus of discussion should be on whether there is a constitutionally protected liberty interest in the state’s not …

Preaching, Fundraising And The Constitution: On Proselytizing And The First Amendment , Mark Strasser

Mark Strasser

In a series of cases, the Court has suggested that proselytizing, whether or not including solicitation of donations, is entitled to robust constitutional protection. The Court recently affirmed that view in Watchtower Bible and Tract Society of New York, Incorporated v. Village of Stratton. Yet, the relevant jurisprudence is much less clear than either the Court or commentators seem willing to admit. When one considers the cases involving the International Society for Krishna Consciousness (ISKCON), one sees that the protections for proselytizing, especially when involving solicitation, are much weaker than might first be thought. This Article explores the proselytizing cases, …

The Often Illusory Protections Of “Biology Plus:” On The Supreme Court’S Parental Rights Jurisprudence, Mark Strasser

Mark Strasser

Over the past several decades, state supreme courts have been forced to analyze the degree to which the United States Constitution protects the parental rights of unwed fathers. Basically, some courts suggest that an unwed father will retain his parental rights as long as he does not culpably act or fail to act in a way which deprives him of his rights, while others suggest that an unwed father will acquire parental rights only if he affirmatively avails himself of the opportunity to establish a relationship with his child. The difference between these views can have important implications for the …

Confronting The “Ongoing Emergency”: A Pragmatic Approach To Hearsay Evidence In The Context Of The Sixth Amendment, Ellen Liang Yee

ellen yee

The Supreme Court’s path breaking decision in Crawford v. Washington, 541 U.S 36 (2004), held that admission of an extrajudicial testimonial statement by an unavailable declarant-witness violates the Confrontation Clause unless the defendant has an opportunity to cross-examine the declarant. Unfortunately, the determination of admissibility for the trial court judge has not been simplified after Crawford. The role of the trial court judge has now shifted from determining the reliability of the hearsay evidence (as was required before Crawford) to a determination of the testimonial nature of the declarant’s statement. However, with some small exceptions, the Court in Crawford explicitly …