Law Commons^™

Constitutional Wrongs And Common Law Principles: The Case For The Recognition Of State Constitutional Tort Actions Against State Governments, T. Hunter Jefferson

Vanderbilt Law Review

Imagine an individual whose friend has allowed him to stay in a bedroom of his trailer home. This individual brings his most treasured and personal possessions along with him. Two police officers, after receiving information of potential criminal activity from an informant, enter the trailer without a warrant. Instead of obtaining a warrant, the officers solicit the consent of a third party and ransack the bedroom-leaving it in complete disarray. They find no evidence of the alleged criminal wrongdoing and seize no property. Although the police do not arrest the individual, they have humiliated him and have invaded his privacy. …

State User Fees And The Dormant Commerce Clause, Dan T. Coenen

Vanderbilt Law Review

The law takes shape as great principles collide in the context of concrete cases. In the field of constitutional law, the task of reconciling key precepts falls, of necessity, to the Supreme Court. Indeed, much of the Court's work involves delineating the borders of competing constitutional principles that the Court itself has created.

This Article considers the interplay of two central tenets of the Court's dormant commerce clause jurisprudence. The first of these principles exempts from the general proscription on discrimination against interstate commerce a state's actions as a "market participant," rather than as a "market regulator."' The second principle, …

Conservatives, Liberals, Romantics: The Persistent Quest For Certainty In Constitutional Interpretation, Frederick M. Gedicks

Vanderbilt Law Review

From the time that Robert Bork issued his first attack on the Warren Court, originalism has belonged to political conservatives. This interpretive theory, which holds that the understanding of the Constitution at the time it was drafted and ratified controls its contemporary meaning, has been regularly utilized by conservative judges and politicians over the last two decades to question the legitimacy of various (mostly liberal) Supreme Court decisions. Given the liberal tilt of the legal academy, it is not suprising that advocates of originalism constitute a minority of constitutional scholars.

Recently, a prominent constitutional theorist with unmistakably liberal credentials announced …

All The Supreme Court Really Needs To Know It Learned From The Warren Court, Suzanna Sherry

Vanderbilt Law Review

It is accepted wisdom among constitutional law scholars that the Supreme Court is now considerably more conservative than it was during the tenure of Chief Justice Earl Warren. In this Article, I hope to suggest that the conventional wisdom is at least partly wrong. In Part I, I suggest that many of the current Court's so-called conservative cases and doctrines are direct descendants of Warren Court cases and doctrines. Although my attribution of similarity is new, the description of the cases and doctrines themselves is entirely unoriginal. Indeed, the history of the two sets of cases-of the Warren Court and …

On The Merits: A Response To Professor Sherry, John C.P. Goldberg

Vanderbilt Law Review

Professor Sherry's Article has three parts. The first is doctrinal and undertakes to demonstrate that the above quoted wisdom is not only false, but patently so. It is apparent, this Part argues, that the current Court has not drifted toward the "right," but has steadfastly held to the principle of justice that animated the Warren Court. This is the principle of "formal neutrality," which generally holds that government may never distinguish among its citizens on the basis of race, creed, or color.

Professor Sherry's second project is to explain why constitutional scholars have failed to recognize this obvious consistency. Her …

Introduction: The Democratic Judge, Michael J. Gerhardt

Vanderbilt Law Review

It is a special privilege for me to return to this great law school to honor one of its greatest graduates. Each time I return to Nashville, it feels like a homecoming. Each time I return, I also feel that as I am getting older, Judge Merritt is getting younger. The last time I was here, he got married; and the time before that, we squared off for the umpteenth time on a tennis court. He also Writes more opinions, gives more speeches, and has taken more of a leadership role in protecting the interests of the federal judiciary than …

Anticipating Hong Kong's Constitution From A U.S. Legal Perspective, John M. Rogers

Vanderbilt Journal of Transnational Law

This Article explores the possible nature of Hong Kong's Constitution after July, 1997, and discusses alternative ways of interpreting and enforcing the constitution. The author first proposes three definitions for the word "constitution'" (1) how political power is actually "constituted," (2) a written document and (3) a referent for disputes. The author then explains Hong Kong's unusual constitutional status where Hong Kong will be governed under a written constitution the Basic Law. and at the same time, many aspects of the Basic Law will be "guaranteed" by an international agreement, the Joint Declaration. The author proceeds to evaluate the means …

The Unconstitutionality Of State And Local Enactments In The United States Restricting Business Ties With Burma (Myanmar), David Schmahmann, James Finch

Vanderbilt Journal of Transnational Law

As a punitive measure against the military regime in Burma, state and municipal governments in the United States have adopted laws penalizing firms that conduct business in that nation. This Article analyzes the validity of these statutes and ordinances under various provisions of the U.S. Constitution.

After introducing the nature of this development and the constitutional issues raised, Part II of this Article proceeds to examine the character of the local enactments and the political backdrop which lead to their adoption. In Part II, the Authors analyze four federal constitutional issues surrounding the local legislation: implied preemption by federal legislation, …

Off The Precipice: Massachusetts Expands Its Foreign Policy Expedition From Burma To Indonesia, David R. Schmahmann, James Finch, Tia Chapman

Vanderbilt Journal of Transnational Law

This Article considers the wisdom and constitutionality of a proposed Massachusetts law penalizing companies that do business with Indonesia. In the March 1997 issue of the Vanderbilt Journal of Transnational Law, two of the authors expressed concerns about the constitutionality of state and local restrictions on business ties with Burma (Myanmar). This Article applies a similar analysis to conclude that the proposed legislation is an unconstitutional violation of the Supremacy Clause and the Foreign Commerce Clause. The authors also argue that the federal government has clearly preempted action by Massachusetts: first by providing aid to Indonesia under the generalized system …

Preface, Laurelyn E. Douglas

Vanderbilt Journal of Transnational Law

The symposium, HONG KONG'S REINTEGRATION INTO THE PEOPLE'S REPUBLIC OF CHINA: CONSTITUTIONAL ISSUES, POLICY APPROACHES & HUMAN RIGHTS CONCERNS, AND ECONOMIC & LEGAL IMPLICATIONS, was held at the Vanderbilt University School of Law on March 28-29. 1997. Featuring presentations by diverse speakers from a variety of places and perspectives, the symposium addressed a broad range of issues. Topics ranged from comparative constitutional law to human rights and practical business concerns. While differences emerged, it was clear that fully understanding any one area requires knowledge of the others: the viability of markets may well depend upon the validity of documents proclaiming …