Law Commons^™

Will Conservative Justices Sound The Death Knell Of State Action? Be Careful For What You Wish, Anne M. Lofaso

Law Faculty Scholarship

No abstract provided.

Aligning Education Rights And Remedies, Joshua Weishart

Law Faculty Scholarship

Over the course of five decades and three waves of litigation, courts have approved remedies under the state constitutional right to education that demand more equitable and adequate funding of public schools. Scholars have urgently called for a 'fourth wave" of litigation seeking remedies beyond money: racial and socioeconomic integration, school choice, universal preschool, and teacher tenure reform, just to name a few. Desperate for progress and to escape the incessant rut of school funding battles, advocates have, in turn, initiated lawsuits seeking a broader range of remedies. If this strategy induces a fourth wave, advocates will encounter a beleaguered …

Reconstituting The Right To Education, Joshua Weishart

Law Faculty Scholarship

Confronting persistent and widening inequality in educational opportunity, advocates have regarded the right to education as a linchpin for reform. In the forty years since the Supreme Court relegated that right to the domain of state constitutional law, its power has surged and faded in litigation challenging state school finance systems. Like so many of the students it is meant to protect, however, the right to education has generally underachieved, in part because those wielding it have not always appreciated its distinctive forms and function.

Deconstructed, the right to education held by children has been formulated doctrinally as both a …

Dissecting The Hybrid Rights Exception: Should It Be Expanded Or Rejected?, David L. Hudson Jr., Emily H. Harvey

Law Faculty Scholarship

In the early 1960s, the Supreme Court of the United States adopted a high level of protection for religious liberty claims. The Court applied a version of strict scrutiny when evaluating governmental laws or regulations that burdened an individual's free exercise of religion. In 1990, the Supreme Court reversed decades of precedent and fundamentally changed the meaning and application of the Free Exercise Clause. In Employment Division v. Smith, the Court, in an opinion by Justice Antonin Scalia, determined that the Free Exercise Clause does not protect individuals from laws that donot target specific religious beliefs or practices. However, Justice …

Advising The President: The Growing Scope Of Executive Power To Protect America, Alberto R. Gonzales

Law Faculty Scholarship

The scope of power that the executive branch has to act independently of the other government branches in the national security arena is one of the most difficult questions to answer in constitutional law. Congress has passed a number of statutes empowering the President to take actions necessary to protect our national security, but on relatively few occasions has Congress authorized the President to use force through declarations of war. As Counsel to the President, my job was to work with Attorney General John Ashcroft and other senior lawyers in the Bush Administration to advise the President on the limits …

Constitutional Constraints On Retroactive Civil Legislation: The Hollow Promises Of The Federal Constitution And Unrealized Potential Of State Constitutions, Jeffrey Omar Usman

Law Faculty Scholarship

Within American society, there is a general sense that changing the rules after the game has been played is unfair. While state legislatures more often enact prospective legislation, they nevertheless still regularly engage in retroactive civil lawmaking. In essence, state legislatures are changing the rules after the game has been played. Most Americans inaccurately assume such measures are unconstitutional under the federal constitution. Although several provisions of the United States Constitution offer potential sources of constitutional constraint upon retroactive civil lawmaking, ultimately, as they have been interpreted by the United States Supreme Court, these protections are extremely narrow, largely hollow, …

Black Armbands, 'Boobies' Bracelets And The Need To Protect Student Speech, David L. Hudson Jr.

Law Faculty Scholarship

Discusses the precedential value of the Tinker v. Des Moines Independent School District decision in the current Boobies Bracelets debate.

The Secondary-Effects Doctrine: Stripping Away First Amendment Freedoms, David L. Hudson Jr.

Law Faculty Scholarship

An essay on the secondary-effects doctrine and its threat to First Amendment.freedoms.

Pearson V. Callahan And Qualified Immunity: Impact On First Amendment Law, David L. Hudson Jr.

Law Faculty Scholarship

An essay on Pearson v. Callahan and its impact on First Amendment Law.

Circuit-Specific Application Of The Internal Revenue Code: An Unconstitutional Tax, Jeffrey S. Kinsler

Law Faculty Scholarship

For all practical purposes, the Constitution prescribes only one limit on the federal government's power to tax: the Uniformity Clause, which requires that indirect taxes, such as income and excise taxes, be "uniform throughout the United States ... " It is exceedingly rare for a federal tax law to violate the Uniformity Clause. The Internal Revenue Code does not fix different taxes for different states, as Congress has carefully crafted the tax laws to avoid geographical distinctions. Unfortunately, the Internal Revenue Service ("IRS") has not always been so careful. In recent years, the IRS has adopted a practice of applying …

El Principio De "La Alternativa Menos Restrictiva" En Derecho Constitucional Norteamericano, Robert Bastress Jr.

Law Faculty Scholarship

No abstract provided.

Land Use Regulation And The Takings Clause: How Much Use Must An Owner Lose Before Being Entitled To Compensation Because The Government Has Taken The Property?, Patrick C. Mcginley

Law Faculty Scholarship

No abstract provided.

Trashing The Constitution: Judicial Activism, The Dormant Commerce Clause, And The Federalism Mantra, Patrick Mcginley

Law Faculty Scholarship

No abstract provided.

Federalism Lives! Reflections On The Vitality Of The Federal System In The Context Of Natural Resource Regulation, Patrick Mcginley

Law Faculty Scholarship

No abstract provided.

The Four Corners Requirement: A Constitutional Prerequisite To Search Warrant Validity, Patrick C. Mcginley

Law Faculty Scholarship

No abstract provided.

United States Of America V. Martin Linen Supply Company And Texas Sanitary Towel Supply Corporation, Patrick C. Mcginley

Law Faculty Scholarship

No abstract provided.