Law Commons^™

Examining The Americans With Disabilities Act's Reassignment Provision Through An Equal Protection Lens, Danielle Bogaards

UC Law Constitutional Quarterly

Disabled employees were given equal protection rights when Congress acted under Section 5 of the Fourteenth Amendment to enact the Americans with Disabilities Act ("ADA"). This note begins by analyzing the ADA's reassignment provision, which is triggered when a current employee becomes disabled and can no longer perform the essential tasks of his or her current position. The ADA considers various forms of accommodations the employer may provide; yet circuit courts are split when faced with application of the ADA's reassignment provision because it is often used as a last resort before termination. More specifically, when an employer has a …

The Government’S Lies And The Constitution, Helen L. Norton

Indiana Law Journal

The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political accountability for its misconduct; to inflict economic and reputational harm; or to enable the exercise of its powers to imprison, to deploy lethal force, and to commit precious national resources. On the other hand, the government’s lies can sometimes be helpful: consider lies told to thwart a military adversary or to identify wrongdoing through undercover police work. The substantial harms threatened by some government lies invite a search for ways to punish and prevent them. At the same time, …

The (Not So Dire) Future Of The Necessary And Proper Power After National Federation Of Independent Business V. Sebelius, Celestine Richards Mcconville

William & Mary Bill of Rights Journal

No abstract provided.

The Eighth Amendment And Tax Evasion: Whether Fatca Non-Compliance Fines And Fbar Penalties Are Excessive, Tyler R. Murray

William & Mary Bill of Rights Journal

No abstract provided.

Under School Colors: Private University Police As State Actors Under § 1983, Leigh J. Jahnig

Northwestern University Law Review

Under 42 U.S.C. § 1983, individuals may sue those who violate their constitutional rights while acting under color of state law. The Supreme Court has held that private actors may act under color of state law, and may be sued under § 1983 in some circumstances. However, courts have not been consistent in determining whether private university police forces act under color of state law. Private universities often maintain police forces that are given extensive police powers by state statutes but are controlled by private entities. Some courts have looked directly to the state statutes that delegate police power, but …

Affirmative Action And The Crisis In Higher Education, Scott D. Gerber

ConLawNOW

At all but the nation’s top colleges and universities, enrollments are down and budgets are strapped. Although many offer ideas why, the heavy-headed use of racial and ethnic preferences in student admissions, financial aid, and faculty hiring is also to blame, but also nobody ever mentions that. The term “affirmative action” originated with an executive order signed by President John F. Kennedy on March 6, 1961. Fast forward five decades and, to borrow a line from Dorothy in The Wizard of Oz, “We’re not in Kansas any more.” Bluntly stated, there is systemic discrimination in all three categories of affirmative …

Tradition, Policy And The Establishment Clause: Justice Kennedy's Opinion In Town Of Greece V. Galloway, Wilson Huhn

ConLawNOW

The great jurisprudential battle that has raged in the Supreme Court for more than a century and the question that our society has struggled with since the advent of the Civil War is whether the Constitution is a command by our ancestors that we retain the same political structures, social hierarchies, and cultural traditions that they had, or whether it reflects ideals of liberty, equality, fairness, and tolerance that they aspired to and that they expected us to reach for. That struggle between rules and standards, doctrine and principles, conventionalism and consequentialism, tradition and policy in the interpretation of the …

Prayer And The Meaning Of The Establishment Clause: A Debate On Town Of Greece V. Galloway, Patrick M. Garry

ConLawNOW

Greece v. Galloway involved the constitutionality of the town of Greece’s practice of opening its monthly town board meetings with an invocation given by a volunteer chaplain of the month. The issue in Greece was not the appropriateness, sensitivity, or wisdom of the prayers, nor whether some people are offended by the prayers.

The Establishment Clause is not about feelings, just as the Speech Clause is not about the feelings of people who disagree with or are offended by other people’s speech. The Establishment Clause is not an individual rights clause; it is a clause focused on the institutional liberty …

Navigating A "Legal Black Hole": The View From Guantanamo Bay, Carlos Warner

ConLawNOW

This article discusses the unique and perhaps bizarre litigation surrounding the detainees held in Guantanamo Bay, Cuba by the United States Government. The article describes in detail the development of the litigation making “meaningful judicial review” impossible for the detained men. The article also describes how one attorney has strategically advanced the causes of his clients in spite of restrictive classification of material and impossible legal standards. The article describes the conditions and logistics surrounding visiting clients in Guantanamo and litigating cases.

Finally, the article concludes that the only way to "win" the Guantanamo litigation is through a "Dada" approach …

Who Amended The Amendment?, John Olsson

ConLawNOW

The purpose and intent of the Sixth Amendment of the US Constitution has been repeatedly distorted by textualist misinterpretation, orchestrated by elements of the judiciary more concerned with preserving the power of government than the rights of individual defendants. As a result, it is hard to know what the Amendment stands for, since it has been successively re‑interpreted and, effectively, amended for at least the past 80 years and possibly longer. The author argues that it is time for courts to return to the spirit of the laws that actuated the Bill of Rights over two hundred years ago, and …

The Founders On: "Does The Constitution Work?", Craig A. Stern

ConLawNOW

Whether the Constitution works depends upon the purpose of its working. Discerning that purpose, however, has resisted consensus. Consequently, this article suggests a roundabout way to supply at least a tentative answer to the question whether the Constitution works. The Founders believed that the Constitution, like any republican form of government, would work only for a moral and religious people. They framed and adopted the Constitution in that belief. John Adams warned that without morality and religion, the passions of the people “would break the strongest cords of our Constitution.” A glance at how some cords have fared with a …

A Constitutional Right To Police Protection And Classical Liberal Theory: Complement, Not Conflict, Laura Rae Dove

ConLawNOW

This article considers whether an obligation should be placed upon the State to enforce its own laws in situations where the State is in a unique position to protect particular citizens. The author argues that the current system, under which the State has virtually no obligation to enforce its own laws, affronts the classical liberal underpinnings on which the United States was founded.

The article examines the U.S. Supreme Court’s holdings in DeShaney v. Winnebago County Department of Social Services and in Town of Castle Rock v. Gonzales. These two holdings, the author argues, do not properly consider the …

Realism Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts' Opinion Upholding The Individual Mandate, Wilson Huhn

ConLawNOW

This article examines Chief Justice Roberts’ opinion in National Federal of Independent Business v. Sebelius, a decision that upheld the constitutionality of key provisions in the Affordable Care Act. The individual mandate, the focus of this article and perhaps the most hotly contested provision in the Act, requires private citizens to purchase health insurance or face financial penalty for remaining uninsured. The individual mandate has had and will continue to have important ramifications both for the national economy and for constitutional interpretation in future cases.

First, the article addresses important repercussions of upholding the Act, including significant consequences for …

The Unconstitutionality Of Ohio's House Bill 125: The Heartbeat Bill As Analyzed Under The First Amendment Of The United States Constitution, Jessica L. Knopp

ConLawNOW

This article examines the constitutionality of Ohio’s controversial House Bill 125 (“H.B. 125”), which includes new restrictions and requirements for abortion procedures performed in Ohio. The author argues that, while the new abortion measures conflict with the Supreme Court’s Fourteenth Amendment jurisprudence established in Roe v. Wade and in Planned Parenthood v. Casey, H.B. 125 also violates the Establishment Clause of the First Amendment by imputing religious beliefs about conception and the value of life onto all Ohioans.

The article first outlines the current legal framework for constitutionally acceptable and unacceptable abortion restrictions, including a discussion of informed consent …

Why It Is Not Unreasonable For The Police To Refuse To Provide A Copy Of The Search Warrant At The Outset Of The Search, M. Jackson Jones M.S.

ConLawNOW

This article presents numerous reasons why it would not be unreasonable for the police to refuse to provide an occupant of the premises a copy of the search warrant at the outset of the search when an occupant of the premises is present and poses no threat to the officers’ safe and effective performance of their mission. First, neither the plain text of the Fourth Amendment nor the plain text of Federal Rule 41 requires it. Second, there are numerous constitutional and statutory protections that ensure the executing official does not wrongfully execute the warrant.

In essence, requiring the police …

The Potential Tension Between A "Free Marketplace Of Ideas" And The Fundamental Purpose Of Free Speech, M. Neil Browne, Justin Rex, David L. Herrera

ConLawNOW

The authors argue that the marketplace of ideas is not competitive in the economic sense. Yet the Court often rules as if it is. What are the implications?

By assuming often that the idea market is competitive, Justices are committing the reification fallacy. They are treating an abstract belief or hypothetical construct as if it represented a concrete event or physical entity. In this instance, the Justices assume that existing markets are structured the same way idealized competitive markets are. In doing so, they treat the marketplace of ideas as inherently good, when in fact one must first determine what …

A Short Comment On Current Detainee Policy: One Step Forward And Two Steps Back, Kyndra Miller Rotunda

ConLawNOW

During the Presidential Campaign, President Obama promised to close Guantanamo Bay and to abandon Military Commissions. Shortly after taking office, he halted Military Commissions that were then underway, in order to explore other alternatives. Nearly three years later, Guantanamo Bay remains opens, and President Obama has recently resumed Military Commissions.

With the exception of a lone amendment to the Military Commissions Act, the procedures governing Military Commissions under President Obama and those under President Bush are virtually indistinguishable.

What is distinguishable is that now, under President Obama, many detainees will receive no procedural protections under the Military Commissions Act, but …

When The Chief Justice Serves In The Legislative Branch, Roy E. Brownell Ii

ConLawNOW

This article argues that the Chief Justice is considered part of the legislative branch during presidential impeachment trials. In so arguing, this article first argues, as a matter of constitutional text, that the Chief Justice during presidential impeachment trials steps into the shoes of the president of the Senate. The Chief Justice’s authority in this vein is granted by Article I, which predominantly governs the legislative branch, and not Article III, which does the same for the federal judiciary.

Indeed, the only reference to the Chief Justice in the entirety of the Constitution occurs in this context in Article I. …

Preliminary Injunctions, Excessive Entanglement, And Prior Restraints: Should Courts Treat Potential Pretrial Religious Infringement The Same As Potential Pretrial Speech Infringement?, Conor Reilly

ConLawNOW

The virtually absolute ban on prior restraints against speech is, of course, cemented in the Supreme Court’s Free Speech jurisprudence. But the doctrine may potentially apply to another important First Amendment Clause: Establishment. In free speech cases, courts almost always refuse to restrict expression prior to a determination that it is protected. This Article argues that the courts should apply the same principle in cases implicating religious liberty.

First, this Article examines a case in which a district court granted a preliminary injunction in favor of a religious group, but also imposed severe restrictions on the group’s ability to practice …

Mcdonald V. Chicago, Self-Defense, The Right To Bear Arms, And The Future, Richard L. Aynes

ConLawNOW

In this article, Professor Richard L. Aynes, who was cited for his research by the majority in McDonald, delivers his critique on the opinion, the concurrence, and the dissent. Professor Aynes provides an in-depth analysis of Justice Thomas’ concurrence, which asserts the proper vehicle for incorporation to be the Fourteenth Amendment’s Privileges and Immunities Clause, as opposed to the traditional method employed by the court – the Due Process Clause. With contemporary legal scholarship in agreement with Justice Thomas, Professor Aynes asserts that just as the Privileges and Immunities Clause commanded the support of a ratifying nation, “it will …

Judicial Elections: The Case For Accountability, Jack Park

ConLawNOW

In this article, Jack Park defends the use of partisan elections as a method of selecting state court judges. He first frames the debate and describes its participants. The author then discusses the competing values that supporters and opponents of judicial elections advance. Finally, Mr. Park addresses the arguments for and against judicial elections, showing that, while they may not be a perfect method of selecting judges, neither are the alternatives.

Electing Our Judges And Judicial Independence: The Supreme Court's "Triple Whammy", Martin H. Belsky

ConLawNOW

In this article, Martin Belsky makes the case for judicial selection based on merit, as opposed to popular elections. Belsky cites Caperton v. A.T. Massey Coal Company and the recent defeat of three Iowa supreme court justices because of their opinion in a controversial gay marriage case for the proposition that judicial elections can, and do, yield unjust results. Belsky asserts the need for judicial independence, but concludes that this goal is not achievable through elections because of the “triple whammy” of constitutional limitations: (1) the First Amendment protection of the right of judges and judicial candidates to give specific, …

Crawford's Last Stand? What Melendez-Diaz V. Massachusetts Means For The Confrontation Clause And For Criminal Trials, Elizabeth Stevens

ConLawNOW

The Supreme Court’s recent decision in Melendez-Diaz v. Massachusetts heralds a dramatic change for Confrontation Clause jurisprudence and for most criminal trials. Crawford v. Washington held that “testimonial” statements were admissible only if the accused had a prior opportunity to cross-examine the witness. Melendez-Diaz applied this rule to forensic evidence, holding that certificates of analysis – used in a drug trail to prove the nature and weight of the proscribed substances, and sworn to and signed by the analysts who performed the tests – are testimonial.

This article analyzes Melendez-Diaz’s implications for the Court’s Confrontation Clause jurisprudence and for the …

The Second Amendment Standard Of Review After Mcdonald: "Historical Guideposts" And The Missing Arguments In Mcdonald V. City Of Chicago, Patrick J. Charles

ConLawNOW

In this article, Patrick Charles addresses the first step in analyzing Second Amendment challenges – whether the challenged conduct was “publicly accepted” or “publicly understood” as within the scope of the Second Amendment, circa 1791. This article also analyzes two premises on which the McDonald plurality based its decision, ultimately concluding that those premises are inaccurate. In his opinion, Justice Alito asserted that State constitutions at the time of the founding generally protected an individual right to keep and bear arms. However, an in-depth examination of all State constitutional provisions suggests otherwise. Secondly, John Bingham’s understanding of what the Fourteenth …

Citizens United: Correct, Modest, And Overdue, Allison R. Hayward

ConLawNOW

In this article, Professor Allison Hayward seeks to refute the criticisms leveled at the outcome in Citizens United. Professor Hayward maintains that the “long-standing precedent” overturned by the majority was not firmly rooted, having only been around for a mere 20 years. She further argues that Citizens United is a proper application of First Amendment doctrine. Lastly, Professor Hayward argues that corporations play an important role in our society, most especially those non-profit entities which so often are associated with political advocacy.

The Roberts' Court Takes A Sledge Hammer To Ashwander And Cautious Constitutional Jurisprudence: Citizens United V. Federal Election Commisson, Allen Shoenberger

ConLawNOW

In this January’s decision of Citizens United v. Federal Election Commission, the Supreme Court overturned more than 100 years of legislative precedent, as well as its own precedent of twenty years, to permit corporations to spend unlimited amounts of money on direct advocacy of the election or defeat of candidates for political office. The breadth of the holding is startling. Although the specific context considered a video-on-demand ninety minute diatribe regarding Presidential aspirant Hilary Clinton, the plain import of the holding reaches all federal and state elections, presidential, congressional, gubernatorial, judicial, and janitorial!

Chief Justice Roberts And The "Forty Thieves", Keith R. Fisher, Konstantina Vagenas

ConLawNOW

“What’s in a name? That which we call a rose/ By any other name would smell as sweet.” Whether or not one agrees with the young Shakespeare about names – and many decidedly do not – numbers (as numerologists undoubtedly will assure you) are decidedly a different story and have always been thought to have extrinsic significance.

The number forty, for example, has extensive numerological significance, principally (though not exclusively) in biblical texts. A time period in the Bible – whether in days, months, or years and whether in the books of the Old or New Testament – that features …

Originalism And Its Tools: A Few Caveats, David T. Hardy

ConLawNOW

In District of Columbia v. Heller, the United States Supreme Court adopted original public understanding as an interpretative tool. While this approach has the virtue of establishing meaning independent of a court’s personal values and preferences, this article explores some hazards which courts should try to avoid. First, one must resist the temptation to see historians as invariably objective; some are apt to push a personal agenda, or get a reputation as a “debunker,” at the cost of distorting, overlooking, or even inventing the historical record. Historical studies of this type have misled the Ninth Circuit, and a dissent …

On Marriage, Religious Freedom, Equality And Homosexuality: A Reply To Professor Huhn, George W. Dent Jr.

ConLawNOW

As Professor Huhn says, there is much on which we agree. I concur that the Free Exercise Clause gives citizens no power to override an Equal Protection decision by the Supreme Court (his answer to his Question 1), or a decision of a state supreme court to compel legal recognition of same-sex “marriage” (SSM) (his answer to his Question 2). We part company, though, over the meaning of equality and its application to marriage.

Ten Questions On Gay Rights And Freedom Of Religion, Wilson R. Huhn

ConLawNOW

I have prepared a series of ten questions that will progressively narrow the issues concerning gay rights and free exercise rights until we come to the principal point upon which Professor Dent and I disagree – the definition and application of the principle of equality.