Law Commons^™

The Costs Of The Punishment Clause, Cortney E. Lollar

Law Faculty Scholarly Articles

Criminal punishment pursuant to a facially valid conviction in a court of law is an uncontested exception to the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. After all, the Constitutional text reads, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States.” And yet, beginning almost immediately after the Thirteenth Amendment was adopted, states regularly employed criminal statutes to limit the movement and behaviors of those previously enslaved and subject them to slavery-type labor camps in conditions that closely mirrored slavery. Because neither the …

State Constitutions And Youth Voting Rights, Joshua A. Douglas

Law Faculty Scholarly Articles

Young voters suffer the lowest turnout rates in American elections. One study shows that younger voters face numerous barriers when attempting to cast a ballot, such as work responsibilities, not receiving an absentee ballot in time, inability to find or access their polling place, voter ID problems, or other issues. Many state election laws are a labyrinth of rules and regulations that make it more difficult to vote, especially for younger people. As one report notes, “many young voters are new voters who need to register for the first time and who may be unfamiliar with the process. Young people …

The Executive's Privilege, Jonathan David Shaub

Law Faculty Scholarly Articles

Both the executive branch and Congress claim the final word in oversight disputes. Congress asserts its subpoenas are legal binding. The executive branch claims the final authority to assert executive privilege and, accordingly, to refuse to comply with a subpoena without consequence. These divergent views stem in large part from the relative absence of any judicial precedent, including not a single Supreme Court decision on the privilege in context of congressional oversight. In that vacuum - unconstrained by precedent - the executive branch has developed a comprehensive theory of executive privilege to support and implement prophylactic doctrines that render Congress …

Professor Williams And The Education Debates In State Constitutional Law, Scott R. Bauries

Law Faculty Scholarly Articles

Professor Robert "Bob" Williams, whom The Honorable Jeffrey Sutton once aptly referred to as the "Dean of State Constitutional Law," has announced a well-earned retirement, leaving the world of state constitutional law teaching and scholarship without its most prominent and influential intellectual voice. Although it is clear based on mere citations to Professor William's work that he has influenced nearly every debate - and every scholar - in state constitutional law, this Essay contribution to the Festschrift in Professor William's honor outlines two strands of Professor William's work that have greatly influenced my own work.

Neoformalist Constitutional Construction And Public Employee Speech, Scott R. Bauries

Law Faculty Scholarly Articles

This Article examines, evaluates, and prescribes improvements to a familiar form of constitutional construction favored by neoformalists—the preference for rules over standards. Constitutional law development can be understood as being composed of two judicial tasks—interpretation and construction. Judicial interpretation of the Constitution involves determining the semantic meaning of the words contained in the document. Once that semantic meaning is determined, the interpreted meaning must be constructed into legal doctrine for application in court. Sometimes, that construction involves the articulation of the legal doctrines based on the interpreted constitutional text that will govern a particular case and those similar to it. …

Expatriation Restored, Jonathan David Shaub

Law Faculty Scholarly Articles

Expatriation - the loss or relinquishment of citizenship - has a long and divisive history as a fundamental concept of American citizenship. It has been the subject of contentious and robust debate from the very beginning of the country. This Article posits that the concept of expatriation today has little jurisprudential salience, despite its increasing rhetorical valence in the context of terrorism, because the historical development of the concept has obscured its meaning. Expatriation originally had a precise meaning: an individual right declared by the country in 1868 to be "indispensable" to the inalienable rights identified in the Declaration of …

The Logic Of Speech And Religion Rights In The Public Workplace, Scott R. Bauries

Law Faculty Scholarly Articles

Can government function if its employees have individual rights that override their workplace duties? Intuitively, the answer is no, and the doctrine of public employee speech has mostly reflected this assumption. The Supreme Court has spoken authoritatively on these limitations on public employee speech, most recently in Garrett v. Ceballos and Lane v. Franks, but its jurisprudence on public employee religious expression has been less authoritative and more conflicting. Recent events pitting public employees' personal religious exercise against public rights and limitations on government necessitate the question at the beginning of this paragraph.

The Constitutionality Of Claiming Jail, Paul E. Salamanca

Law Faculty Scholarly Articles

Most pari-mutuel horse races in the United States are claiming races.In such races, a track official stipulates a claim price, and any authorized person may buy any horse that runs in that race at that price. This device discourages owners from running overqualified horses, which tends to ensure competitive fields. Say, for example, an official set a price of $50,000 for a race. An owner who ran a $60,000 horse in that race would stand a fair chance of picking up a good part of the purse, but he or she would also run a high risk of losing the …

Rluipa And The Limits Of Religious Institutionalism, Zachary A. Bray

Law Faculty Scholarly Articles

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with larger debates about …

Another Look At Skelly Oil And Franchise Tax Board, Paul E. Salamanca

Law Faculty Scholarly Articles

In recent years, members of the Supreme Court of the United States have twice cited Skelly Oil Co. v. Phillips Petroleum Co. for the proposition that the federal Declaratory Judgment Act, which Congress enacted in 1934, is “procedural only” and does not enlarge the scope of federal jurisdiction. By this, they probably mean that Skelly allows no case into federal court in the presence of the act that could not find its way there in its absence. But whether this assertion is accurate today, or was accurate in 1950 when Justice Frankfurter wrote Skelly, is not entirely clear. Depending …

A Benign Prior Restraint Rule For Public School Classroom Speech, Scott R. Bauries

Law Faculty Scholarly Articles

This Article is a contribution to a symposium on schools and free speech. It advances the claim that the First Amendment doctrines that apply to the classroom should adopt a benign prior restraint rule. In the case of teacher classroom speech, the Garcetti rule should apply where the government’s action in interfering with the speech constitutes a prior restraint—the First Amendment should not reach such interference. In cases where a teacher first speaks and then is later punished for that speech, however, basic notions of due process and the dangers of arbitrary governmental decision making are far more pressing, and …

Eldred & The New Rationality, Brian L. Frye

Law Faculty Scholarly Articles

Historically, the rational basis test has been a constitutional rubber stamp. In Eldred v. Ashcroft and Golan v. Holder, the Supreme Court applied the rational basis test and respectively held that Congress could extend the copyright term of existing works and restore copyright protection of public domain works, despite evidence that Congress intended to benefit copyright owners at the expense of the public. But in Lawrence v. Texas and United States v. Windsor, the Supreme Court seems to have applied the rational basis test and held that state and federal laws were unconstitutional because they were motivated by …

A Common Law Constitutionalism For The Right To Education, Scott R. Bauries

Law Faculty Scholarly Articles

This Article makes two claims, one descriptive and the other normative. The descriptive claim is that individual rights to education have not been realized under state constitutions because the currently dominant structure of education reform litigation prevents such realization. In state constitutional education clause claims, both pleadings and adjudication generally focus on the equality or adequacy of the system as a whole, rather than on any particular student's educational resources or attainment. The Article traces the roots of the currently dominant systemic approach, and finds these roots in federal institutional reform litigation. This systemic focus leads to a systemic, rather …

The Right To Vote Under State Constitutions, Joshua A. Douglas

Law Faculty Scholarly Articles

This Article provides the first comprehensive look at state constitutional provisions explicitly granting the right to vote. We hear that the right to vote is "fundamental," the "essence of a democratic society," and "preservative of all rights." But courts and scholars are still searching for a solution to the puzzle of how best to protect voting rights, especially because the U.S. Supreme Court has underenforced the right to vote. The answer, however, is right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the right to vote, as contrasted with the U.S. Constitution, which …

The Dialectic Of Obscenity, Brian L. Frye

Law Faculty Scholarly Articles

Until the 1960s, pornography was obscene, and obscenity prosecutions were relatively common. And until the 1970s, obscenity prosecutions targeted art, as well as pornography. But today, obscenity prosecutions are rare and limited to the most extreme forms of pornography.

So why did obscenity largely disappear? The conventional history of obscenity is doctrinal, holding that the Supreme Court’s redefinition of obscenity in order to protect art inevitably required the protection of pornography as well. In other words, art and literature were the vanguard of pornography.

But the conventional history of obscenity is incomplete. While it accounts for the development of obscenity …

The Education Duty, Scott R. Bauries

Law Faculty Scholarly Articles

A constitution is an instrument of entrustment. By adopting a democratic constitution, a polity places in the hands of its elected representatives its trust that those representatives will act to pursue the ends of the polity, rather than their own ends, and that they will do so with an eye toward the effects of adopted policies. In effect, the polity entrusts lawmaking power to its legislature with the expectation that such power will be exercised with loyalty to the public and with due care for its interests. Simply put, legislatures are fiduciaries.

In this Article, I examine the nature of …

American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries

Law Faculty Scholarly Articles

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for a …

State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

This Article begins by reviewing Wesley Newcomb Hohfeld's “fundamental conceptions” and expanding his theory to the arena of state constitutional rights, building on recent work by other scholars. From this foundation, it moves to a discussion of the sources of rights to education. The Article then examines the text of relevant state constitutional provisions, as well as the ever-changing landscape of school finance litigation, the principal vehicle through which litigants assert constitutional claims based on ostensible education rights. Next, it systematically analyzes the population of reported cases from the highest state courts to identify Hohfeldian conceptions of education rights held …

State Constitutional Design And Education Reform: Process Specification In Louisiana, Scott R. Bauries

Law Faculty Scholarly Articles

As to education, the Louisiana Constitution contains the familiar general mandate for the establishment of a public school system, now ubiquitous among state constitutions. But unlike the founding documents of any of the other states, Louisiana's constitution also provides for a very specific process-based allocation of the responsibilities for determining appropriations levels in education from year to year.

It is well-known that state constitutions often treat numerous—sometimes trivial—subjects, or contain provisions that seem hyper-specific and statutory, rather than foundational and constitutional, and state constitutions have been roundly criticized (and sometimes defended) for these features. In this Article, I argue that …

Snyder V. Phelps: A Hard Case That Did Not Make Bad Law, Paul E. Salamanca

Law Faculty Scholarly Articles

In Snyder v. Phelps, the Court stood by the First Amendment in hard times. A religious group conducted a protest some 1,000 feet from a fallen marine's funeral, holding such pickets as “God Hates the USA,” “Thank God for Dead Soldiers,” and “You're Going to Hell.” Despite the empathy that virtually anyone would feel for the marine's grieving father, the Court held by a vote of eight to one that his action for intentional infliction of emotional distress and intrusion upon seclusion could not survive, owing largely to the public nature of the issues the protesters had raised. “Hard …

The “New” Presumption Against Preemption, Mary J. Davis

Law Faculty Scholarly Articles

Is there or isn't there a “presumption against preemption”? The Supreme Court continues to mention it, but then does, or does not, apply it in a way that helps us understand what it is. This Article explores the Court's preemption opinions in the last several decades, particularly its most recent pronouncements, and concludes that, indeed, there is a presumption against preemption. It is a "new" presumption in the sense that it is born of the Court's active preemption docket in the last two decades, which has more narrowly defined both express and implied preemption analysis. The "new" presumption is stronger …

The Voting Rights Act Through The Justices' Eyes: Namudno And Beyond, Joshua A. Douglas

Law Faculty Scholarly Articles

The most surprising action from the Supreme Court's latest term may be what it did not do: strike down Section 5 of the Voting Rights Act (VRA) as unconstitutional. After the oral argument in Northwest Austin Municipal Utility District Number One v. Holder (NAMUDNO), most Court observers expected the Court to issue a strongly divided opinion invalidating Congress's reauthorization of the provision that requires certain "covered jurisdictions" to seek preapproval, or preclearance, before enacting any change that affects voting. Instead, the Court issued an 8-1 opinion that avoided the constitutional question and decided the case on a narrower statutory …

A Vote For Clarity: Updating The Supreme Court's Severe Burden Test For State Election Regulations That Adversely Impact An Individual's Right To Vote, Joshua A. Douglas

Law Faculty Scholarly Articles

The presidential election on November 2, 2004, was perhaps one of the most watched and contentious elections in recent memory. Both major parties knew that the race would come down to several battleground states, including Ohio. The real battle in Ohio, however, began a day or two before Election Day, when several federal judges clashed over whether to allow partisan challengers at the polls.

On October 31, 2004 and November 1, 2004, two separate district court judges ruled that an Ohio election statute allowing political parties and groups of five or more candidates to place challengers at election precincts to …

Introducing The Law Of Nonprofit Organizations And Philanthropy, David A. Brennen

Law Faculty Scholarly Articles

On January 5,2007, the Nonprofit and Philanthropy Law Section of AALS held its first program at the AALS Annual Meeting in Washington, D.C. The program, entitled "State-Level Legal Reform of the Law of Nonprofit Organizations," was a fitting way to launch what should prove to be a valuable contribution to the study of law relating to nonprofit organizations and philanthropy. This burgeoning area of academic legal study is well poised to grow by leaps and bounds in the coming years due to its impact on many traditional areas of legal study, including tax law, corporate law, estate law, trust law, …

Florida’S Past And Future Roles In Education Finance Reform Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

In federalist parlance, the states often are called laboratories of democracy. Nowhere is this truer than in the field of education, and almost no subset of the education field lends itself to this label more than education finance. Since 1973, with very few notable exceptions, the entire development of the practice of education finance has proceeded through state-specific reforms. These reforms have occurred mostly through legislative policymaking, but the courts have played an important role in directing that policy development.

If one were to seek to observe one of these laboratories in action—to witness the interaction of the courts, the …

Video Games As A Protected Form Of Expression, Paul E. Salamanca

Law Faculty Scholarly Articles

Video games, like motion pictures, failed to qualify for First Amendment protection until well after they emerged as a medium. Today, a number of courts have held that such games constitute a form of expression and do not fall into any recognized category of unprotected speech. Nevertheless, a number of commentators have called for limited constitutional protection for video games, predicating their arguments on a variety of grounds, including the alleged deleterious effects of such games on children. This Article responds to these commentators and defends recent decisions extending protection to video games.

Resorting To External Norms And Principles In Constitutional Decision-Making, Alvin L. Goldman

Law Faculty Scholarly Articles

Given the very significant role of constitutional law in the American political system and the fact that Supreme Court Justices are appointed through a political process, it is understandable that the appropriate judicial approach to resolving constitutional issues often is the subject of political commentary. Unfortunately, discourse by politicians concerning this issue seldom rises to the deserved level of wisdom. One of President George W. Bush's public mantras is illustrative of political commentary respecting federal judicial appointments: "I'm going to put strict constructionists on the bench." On its face, and as understood by politically naive audiences, the statement appears to …

The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca

Law Faculty Scholarly Articles

Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and …

Race Conscious Affirmative Action By Tax Exempt 501(C)(3) Corporations After Grutter And Gratz, David A. Brennen

Law Faculty Scholarly Articles

The Equal Protection Clause of the Fourteenth Amendment generally acts as a legal limit on the permissible bounds of government action. Accordingly, public universities and other government entities are constitutionally prohibited from engaging in acts that violate equal protection of the laws. The Supreme Court recently reinforced this point when it ruled, in two related cases, that public universities may consider the race of applicants when making admissions decisions, so long as an applicant's race does not amount to a deciding factor when granting admission. By its very terms, the constitutional limitation imposed by the Equal Protection Clause only directly …

Quo Vadis: The Continuing Metamorphosis Of The Establishment Clause Toward Realistic Substantive Neutrality, Paul E. Salamanca

Law Faculty Scholarly Articles

For years, the rhetoric of substantive neutrality has dominated interpretation of the Establishment Clause. Under this approach, courts and commentators purport to ask whether a public policy under scrutiny is likely to affect religious choices in an unacceptable way. In fact, so broadly has this approach been taken that both separationists and accommodationists resort to it freely, although with radically differing perceptions as to when policy becomes unacceptable. Arguably, however, adherents to this approach have paid insufficient attention to religious behavior per se. Had they paid sufficient attention to this phenomenon, they would have been forced to acknowledge that little …