Law Commons^™

Dodd-Frank Act And National Bank Preemption: Much Ado About Nothing, Raymond Natter, Katie Wechsler

Raymond Natter

Federal preemption of state law has been a contentious issue since 1819, when the Supreme Court upheld the right of the Federal Government to charter a national bank and preempted a state attempt to tax that institution. In 1863, the National Bank Act (NBA) established the national bank system, with the goal of having federally chartered institutions eventually supersede state banks. Efforts by the states to prevent this result and to enforce state laws on national banks led to a continuing debate over the preemptive effect of the National Bank Act over the past 150 years.

More recently, those opposed …

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

The Best Of Both Worlds: Applying Federal Commerce And State Police Powers To Reduce Prescription Drug Abuse, Stacey L. Sklaver

Stacey L. Sklaver

This article addresses the prescription drug abuse epidemic in the United States. In particular, it highlights that prescribers, as the gatekeepers of controlled substances, often lack the necessary education and training to properly prescribe such medications and to spot signs of abuse. This deficiency leads to patient overdoses and death, and resultant prescriber exposure to both civil and criminal liability.

Some states require controlled substance prescribers to obtain education on safe prescribing and abuse prevention methods, but many do not, yielding the need for a federal solution. The solution must address patient health, safety, and welfare under the purview of …

Unconstitutional Animus, Susannah W. Pollvogt

Susannah W Pollvogt

It is well established that animus can never constitute a legitimate state interest for purposes of equal protection analysis. But neither precedent nor scholarship has stated conclusively what exactly animus is, or what counts as evidence of animus in any given case. The United States Supreme Court has explicitly addressed the question of animus only a handful of times, and these cases do not appear to be particularly congruent with one another, at least on the surface. Further, while scholars have discussed animus in terms of moral philosophy, no one has attempted to articulate a unified theory of animus as …

The Zombie Pandemic In Florida, Anita A. Digiacomo Esq.

Anita A. DiGiacomo

A zombie is currently defined as “an animated corpse that feeds on living human flesh.” The Centers for Disease Control and Prevention contend that zombies are typically “created by an infectious virus, which is passed on via bites and contact with bodily fluids.” The vehicle for the spread of infection will depend on the nature of the virus that causes the zombie outbreak. However, due to the nature of zombies, it is more than likely that the main mode of transferring the virus, will be through bites or scratches. The zombie body consists of the reanimated human body, and as …

No Remedy For This Wrong? Analyzing The Appropriate Remedy For Violations Of California Penal Code § 834c, Jared W. Olen

Jared W. Olen

Article 36(1)(b) of the Vienna Convention on Consular Relations provides that a foreign national of a state-party has the right to have her consulate notified of her arrest upon detention. Many United Supreme Court and other federal courts have grappled with issues stemming from that right, including whether the treaty creates privately-enforceable rights. However, California was unique in that it enacted California Penal Code § 834c, which codifies as state law the right to consular notification.

While this codification precludes much discussion about privately-enforceable rights, the statute is, however, silent on what remedy should be applied if law enforcement violate …

Judicial Review And Deliberative Politics. A Tension In Need Of Analysis., Donald E. Bello Hutt

Donald E. Bello Hutt

Champions of judicial review of legislation have defended this institution even before John Marshall decided Marbury v. Madison in 1803. Nevertheless, those defenses have to face with several difficulties, both practical and abstract. The aim of this paper is to analyze those difficulties and the context in which the defenses have been successful. We shall discuss the origins of judicial review in the work of James Iredell, Alexander Hamilton and John Marshall in order to introduce not only the first defenses of judicial review, but to fix the political context and dominant constitutional philosophy at their time: departmentalism and popular …

Which Interests Should Tort Protect?, Jean M. Thomas

Jean M Thomas

The paper asks the question of what justifies the practice of tort law. It asks the question with a particular focus: which interests should tort protect? The paper argues that tort selects and protects a determinate set of interests even if we do not take it to be doing so. The second claim advanced in the paper is that tort law is constitutive of political society in the sense that it expresses our sense of ourselves as persons within society, and our sense of what we owe one another. Given that tort law inevitably selects a particular set of interests …

Playing The Race Card: White Americans’ Sense Of Victimization In Response To Affirmative Action, Brett Hammon

Brett Hammon

“They marched on Washington to reclaim civil rights. They complained of voter intimidation at the polls. They called for ethnic studies programs to promote racial pride. They are, some say, the new face of racial oppression in this nation -- and their faces are White.”a A 2011 poll indicates that Whites have now come to view anti-White bias as a bigger problem than anti-Black bias.b Based on recent Supreme Court opinions, most of the Justices apparently agree that Whites are today’s true victims, as the Court has continued to steadfastly stand up for the rights of White plaintiffs against discrimination …

Providing A Foundation For Wealth For Wealth Creation And Development In Africa: The Role Of The Rule Of Law, John Mukum Mbaku

JOHN MUKUM MBAKU

PROVIDING A FOUNDATION FOR WEALTH CREATION AND DEVELOPMENT IN AFRICA: THE ROLE OF THE RULE OF LAW JOHN MUKUM MBAKU ABSTRACT This paper examines the struggle in Africa to alleviate and eventually eradicate poverty. It is argued that the most effective way for African countries to deal with poverty is to create wealth. Unfortunately, these countries have not been able to create the wealth that they need to confront poverty. This is due primarily to the fact that since independence, these countries have not been able to undertake democratic institutional reforms to create and adopt institutional arrangements that guarantee and …

Why Are We Teaching Kids To Hate?: Ending The Practice Of Gay-To-Straight Conversion Treatments, Afton R. Cavanaugh

Afton R. Cavanaugh

The governor of California just signed into law SB 1172, creating a cause of action against mental health professionals that attempt to convert children under the age of eighteen from gay to straight. Conversion therapy, as this practice is called, has been around for a long time, but recently our nation’s youth has come into the crosshairs of powerful anti-gay activists. Conversion therapy imbeds within the child’s psyche an internalized form of homophobia that causes an extreme risk of psychological distress given the developing and often fragile mental state of children and teenagers. These methods have no proven success rate, …

Property And Republicanism In The Northwest Ordinance, Matthew J. Festa

Matthew J. Festa

This Article shows that individual property rights held a central place in the republican ideology of the founding era by examining the Northwest Ordinance of 1787. Between the two predominant strains of founding-era political ideology—liberalism and republicanism—the conventional view holds that individual property rights were central to Lockean liberalism, but not to the republican political tradition, where property is thought to have played more of a communitarian role as part of promoting civic virtue and the common good. Republicanism has been invoked in modern debates, and its emphases are present in current ideas such as the important new theory of …

Constitutional Combat: Is Fighting A Form Of Free Speech? The Ultimate Fighting Championship And Its Struggle Against The State Of New York Over The Message Of Mixed Martial Arts, Daniel A. Berger

Daniel A Berger

No abstract provided.

The Role Of American Individualism In The Current State Of Public Schools, Kehinde A. Durowade Ms.

Kehinde Durowade

The Article focuses on the method of public school funding in America and how it continues to contribute to the stagnation of public school education in America. I examine several judicial decisions – most notably Brown v. Board of Education and San Antonio Indep. Sch. Dist. v. Rodriguez – and legislative action, to demonstrate a steady decline in the significance attributed to public education by the government. With specific emphasis on Illinois public schools, which currently rank 47th in the country for funding fairness, this paper suggests a cultural approach to solving the problem. It posits that a cultural shift, …

“Stand Your Ground” Laws And Justice: The Controversy Over Immunity To Criminal Prosecution, Talon R. Hurst

Talon R Hurst

“Stand Your Ground” laws have received a plethora of media attention in 2012, none of which have been in a positive light. These laws providing a person with immunity from criminal prosecution are now being scrutinized for their confusing nature. “Stand Your Ground” laws allow a person to stand his or her ground and meet force with force, including deadly force, when specific requirements are met. These laws intend for law-abiding citizens to protect themselves and others without fear of being criminally prosecuted. However, they often don not provide consistent guidelines to enforce and apply the immunity. Therefore, two persons …

A Multiple Choice Legislative Certification Procedure: Asking Congressional Preferences In Statutory Interpretation, Danieli Evans

Danieli Evans

In response to failed efforts at enhancing judicial-legislative collaboration, I propose a procedure that would enable the Court to take account of congressional preferences in a pending statutory interpretation decision, without requiring Congress to amend the ambiguous law. In “hard cases” the Court could certify, through a fast-track procedure, a question presenting Congress with two multiple choices that the Court predetermines to be viable readings of the statute. This procedure avoids constitutional problems because congressional input is voluntary and non-binding for both branches, and judicial constraint enforces rule of law and constitutional values.

Greater And Lesser Powers, Samuel Levin

Samuel Levin

During much of the twentieth century it was relatively stylish for lawyers, judges and justices to argue that an exercise of power was permissible because "the greater power [to do something else] necessarily includes the lesser power [to do this]." Unfortunately, sloppy and unprincipled uses that merely reflected the intuitions of those who invoked it has largely discredited the argument, although it still makes some relevant appearances.

This paper argues that there is a principled way to apply the argument: by looking to the relative harms caused by each exercise of power. However, any notion of "necessarily includes" needs to …

See No Evil, Hear No Evil, Speak No Evil; Stemming The Tide Of No Promo Homo Laws In American Schools, Madelyn Rodriguez

Madelyn Rodriguez

In several states, and many more local governments, teachers are being mandated to teach their students that homosexuality is inherently abhorrent and should be shunned. These so called “No Promo Homo” policies vary in scope; from those barring any positive discussion of homosexuality to those which insinuate the association of homosexuality with various social ills. As a result of these policies, teachers are being used as a conduit for misinformation and, more disturbingly, for discrimination and bias. Because teachers naturally have an immense impact on their students, the concepts and values advocated or discouraged by them will have an immeasurable …

The Corporation And Transactional Political Speech, C. Timothy Murphy Iii

C. Timothy Murphy III

Corporations enjoy virtually unlimited First Amendment protections under the current law. Corporate personhood and the constitutional rights of corporations have become polarizing and controversial topics, especially in the wake of the Citizens United Supreme Court ruling. However, this area of law has been gradually developing well before that case was ever argued.

A review of the Citizens United line of cases explains how the law has evolved to this point. Furthermore, exploration of organizational concepts of corporations and other business entities illustrates significant differences between them and natural persons. These inherent traits of corporations make their speech primarily transactional in …

The Haunting Of Abigail Fisher: Race, Affirmative Action, And The Ghosts Of Legal History, Hilary A. Leewong

Hilary A Leewong

What is race in 2012, and why does it matter?

At the end of the current term, the Supreme Court will decide Fisher v. University of Texas. In doing so, the Court revisits the role of affirmative action and the meaning of race much sooner than constitutional law scholars, and likely the average college applicant, expected it would.

The Court’s last definitive take on the subject was conveyed by Justice O’Connor in 2003’s Grutter v. Bollinger. Justice O’Connor’s opinion conveyed disappointment that race-based admissions in higher education was still necessary this long after Brown v. Board of Education, heralded the …

Proxy Sovereignty And The Problem Of Immunity, Sarah L. Brinton

Sarah L Brinton

The U.S. Constitution creates a three-branch federal government that acts on behalf of the sovereign people. Each constitutional branch—Congress, the executive, and the judiciary—is constrained to exercise only the powers and act only in the roles assigned it by the sovereign people via the Constitution. Despite this tripartite, proxy-sovereign nature of the U.S. national government, current federal sovereign immunity jurisprudence affords Congress the exclusive right to act as sovereign to waive immunity. This Article argues that the Constitution more faithfully supports another configuration of the waiver power. To do so, this Article introduces the proxy-sovereign framework, which assumes that (1) …

Police Cell Phone Searches: Where's The Privacy?, John O. Hayward

John O. Hayward

Legal academicians are in a dither that law enforcement, using the exception of a search incident to a lawful arrest, are conducting warrantless searches of cell phones found on the person of those they take into custody. They regard such searches as violating the arrestees’ expectation of privacy, although courts that have considered the matter, by an overwhelming majority, have found lawful arrest trumps any expectation of privacy. This paper examines the legal precedent for searches incident to a lawful arrest being an exception to the Fourth Amendment’s prohibition against unreasonable searches and seizures, inquires into the expectation of privacy …

Litigation-Fostered Bureaucratic Autonomy: Administrative Law Against Political Control, Daniel E. Walters

Daniel E Walters

No abstract provided.

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 …

The Constitutional Procedural Principle: A Normative Morphology For Gauging Threats To Judicial Independence, Tara Price

Tara Price

For more than two hundred years, judicial review has served as the foundation of the American judicial branch. And yet, more than two centuries later, scholars and political figures continue to debate its proper place in American government. Recently, Presidential candidate Newt Gingrich waded into this debate, calling for members of Congress and the President to take stronger actions to check and balance what he termed “judicial supremacy.” Cries for a weakened judicial branch and insistence on the importance of reining in activist judges are becoming commonplace throughout American history.

As Gingrich and many before him have realized, the President …

Police Cell Phone Searches: Where's The Privacy, John O. Hayward

John O. Hayward

Legal academicians are in a dither that law enforcement, using the exception of a search incident to a lawful arrest, are conducting warrantless searches of cell phones found on the person of those they take into custody. They regard such searches as violating the arrestees’ expectation of privacy, although courts that have considered the matter, by an overwhelming majority, have found lawful arrest trumps any expectation of privacy. This paper examines the legal precedent for searches incident to a lawful arrest being an exception to the Fourth Amendment’s prohibition against unreasonable searches and seizures, inquires into the expectation of privacy …

The Creation And Dissolution Of Gran Colombia, F.E. Guerra-Pujol

F.E. Guerra-Pujol

George Washington and Simón Bolívar not only led successful revolutions against their colonial rulers, these great leaders also oversaw the drafting of concise federal constitutions and were able to establish promising constitutional unions: (i) the creation and ratification of the US Constitution and the integration of 13 separate states into a single nation, and (ii) the creation of a promising South American federal republic, the Republic of Colombia or “Gran Colombia” (1819-1830), consisting of modern-day Colombia, Ecuador, and Venezuela. Despite these similar origins, the subsequent constitutional histories of both regions could not have been more different: one constitution proved to …

“On The Streets Of Doomed America” : Snyder V. Phelps Through A Millian Lens, David G. Lake

David G Lake

Although many Americans may be opposed to the Supreme Court’s ruling in Snyder v. Phelps, the Court protected traditional application of the freedom of speech by finding in favor of the Westboro Baptist Church. Specifically, the Supreme Court’s analysis of public vs. private speech issues in Snyder v. Phelps conforms to John Stuart Mill’s analysis of speech regulation in “On Liberty,” indicating that current freedom of speech jurisprudence continues to reflect Mill’s analysis and traditional ideas of this essential freedom.

The Thirteenth Amendment "Exception" To The State Action Doctrine: An Originalist Reappraisal, Ryan Walters

Ryan Walters

There is an overwhelming consensus that the Thirteenth Amendment represents an exception to the general rule that the U.S. Constitution does not apply to private actors – the state action doctrine. There has never been an analysis of this assertion using reasonable-observer originalism. As a result, the consensus view on the Thirteenth Amendment threatens to undermine a key feature of the Constitution – that it provides rules of conduct solely for governmental actors.

This Essay uses reasonable-observer originalism to examine the text and context of the Thirteenth Amendment. This is the first analysis that finds that the Thirteenth Amendment is …

Death To Immunity From Service Of Process Doctrine!, John Martinez

John Martinez

Death to Immunity From Service of Process Doctrine!

By John Martinez, Professor of Law

S.J. Quinney College of Law

at the University of Utah

ABSTRACT

The immunity from service of process doctrine provides that a nonresident cannot be served while going to, attending, and leaving an ongoing judicial proceeding. However, the doctrine evolved while "tag" jurisdiction was in vogue, whereby mere presence in the forum state sufficed, and the nonresident only had to be "tagged" with service to confer jurisdiction on the forum state. This article suggests that modern "minimum contacts" territorial jurisdiction theory more adequately addresses the concerns of …