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Full-Text Articles in Law
Clearly Canadian--Hill V. Colorado And Free Speech Balancing In The United States And Canada, Donald L. Beschle
Clearly Canadian--Hill V. Colorado And Free Speech Balancing In The United States And Canada, Donald L. Beschle
UC Law Constitutional Quarterly
Two doctrines have equally influenced and informed the debate regrading the scope of the First Amendment free speech guarantee: absolutism versus the balancing of competing interests. Despite the language of the United States Constitution that suggests the application of absolutes, the courts have often resorted to balancing in the resolution of cases. This Article examines the debate by comparing the different approaches taken by the courts in the United States and Canada. This examination reveals that perhaps the two doctrines do not need to negate each other in their application, and that a recent decision by the United States Supreme …
Supreme Court Voting Behavior: 1999 Term, Richard G. Wilkins, Scott Worthington, Rachelle Fleming, Matthew Fleming
Supreme Court Voting Behavior: 1999 Term, Richard G. Wilkins, Scott Worthington, Rachelle Fleming, Matthew Fleming
UC Law Constitutional Quarterly
This Study, the fourteenth in a series, tabulates and analyzes the voting behavior of the United States Supreme Court during the 1999 Term. The analysis is designed to determine whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same as compared with past Terms. This Term's survey suggests a reversal of the Court's liberal trend over the past two Terms, with conservative movement in six of the ten categories. Specifically, the Court's support of statutory civil rights claims plummeted to an all time low, while the Court exhibited a dramatic conservative …
Tracking In An Era Of Standards: Low-Expectation Classes Meet High-Expectation Laws, Kevin G. Welner
Tracking In An Era Of Standards: Low-Expectation Classes Meet High-Expectation Laws, Kevin G. Welner
UC Law Constitutional Quarterly
This article explores racial resegregation of students through the practice of tracking - the grouping of students into separate classrooms pursuant to perceived academic ability. It places tracking within its larger historical context, as a means for white parents to feel secure about their children's education, and presents a review of scholarly literature concerning the characteristics and application tracking. The main body of the article then sets forth recent analyses of data from two school districts, investigating the harmful and segregative effects of tracking. The article ends by examining aspects of tracking that leave it susceptible to legal challenge, considering …
Sexually Explicit Speech, Jerrold J. Kippen
Sexually Explicit Speech, Jerrold J. Kippen
UC Law Constitutional Quarterly
Despite the title, this Note does not attempt to articulate a defense of sexually explicit speech. Rather, the effort here is to expose current inconsistencies in First Amendment speech doctrine and to argue that those inconsistencies are the result of the excessive, if not wholly improper, weight given to majoritarian morality when evaluating the regulation of non-obscence sexually explicit speech. Thus, this Note will argue that the Supreme Court's treatment of non-obscene sexually explicit speech in the form of licensing, zoning and nudity regulations has weakened the scrutiny applied to all speech regulations. The Note concludes that, because the assesment …
The Marlboro Man's Secret Versus The Public Health: Trade Secrets And Unconstitutional Takings In Phillip Morris V. Reilly, Melanie Tang
The Marlboro Man's Secret Versus The Public Health: Trade Secrets And Unconstitutional Takings In Phillip Morris V. Reilly, Melanie Tang
UC Law Constitutional Quarterly
Trade secrets have traditionally been considered to be property interests under the law protected by the Fifth Amendment. However, in a series of decisions finding a Massachusetts tobacco product disclosure law to be unconstitutional, the Massachusetts district court departed from established Fifth Amendment takings case law, setting a precedent for successful "regulatory takings" challenges by private companies to public health, welfare, and safety laws. This Note discusses the novel interpretation of a property owner's reasonable investment-backed expectations advanced by the Phillip Morris holdings in contravention to Ruckelshaus v. Monsanto, as x ell as the misguided analysis of the character of …
Privileges Or Immunities: The Missing Link In Establishing Congressional Power To Abrogate State Eleventh Amendment Immunity, William J. Rich
Privileges Or Immunities: The Missing Link In Establishing Congressional Power To Abrogate State Eleventh Amendment Immunity, William J. Rich
UC Law Constitutional Quarterly
When the Supreme Court ruled that Congress could not rely upon its powers under Article I to abrogate Eleventh Amendment immunity, it failed to consider the significance of the Fourteenth Amendment Privileges or Immunities Clause. In Congressman Bingham's final speech to Congress calling for approval of that Amendment, he argued that the Privileges or Immunities Clause barred states from attempts to nullify federal law. Subsequent Supreme Court interpretations, beginning with the Slaughter-House Cases, reinforced this understanding. When Congress uses its Article I authority to establish rights, privileges, or immunities of the United States citizens, section five of the Fourteenth Amendment …
Injury Without Harm: Texas V. Lesage And The Strange World Of Article Iii Injuries, Ashutosh Bhagwat
Injury Without Harm: Texas V. Lesage And The Strange World Of Article Iii Injuries, Ashutosh Bhagwat
UC Law Constitutional Quarterly
In Texas v. Lesage the Supreme Court held, in a unanimous, per curiam opinion, that a plaintiff denied admission at a state university whose admissions process make unconstitutional use of race may not recover monetary damages under 42 U.S.C. §1983 if the defendant school can demonstrate that the plaintiff would have been denied admission even if race had not been used as a criterion. Elsewhere in the opinion, however, the Court indicated that such a plaintiff is entitled to injunctive relief because the relevant injury in that situation is "the inability to compete on equal footing." The latter holding builds …
Irrational Prejudice: The Military's Exclusion Of Gay, Lesbian, And Bisexual Service Members After Romer V. Evans, Huong Thien Nguyen
Irrational Prejudice: The Military's Exclusion Of Gay, Lesbian, And Bisexual Service Members After Romer V. Evans, Huong Thien Nguyen
UC Law Constitutional Quarterly
On the brink of the new millennium, the European Court of Human Rights, with jurisdiction over 40 countries, representing about 800 million people, declared that Britain must allow gays, lesbians, and bisexuals to serve openly in its military. In the wake of this decision, the United States, however, has remained steadfast and undeterred in implementing the "Don't Ask, Don't Tell" Policy, the military ban on gays. The United States Supreme Court has not spoken on the Policy, and no federal circuit court has found it unconstitutional. In particular, equal protection challenges have failed as a result of the circuit courts' …
Free Speech For Lawyers, W. Bradley Wendel
Free Speech For Lawyers, W. Bradley Wendel
UC Law Constitutional Quarterly
The application of First Amendment doctrine to cases involving expressive liberties of lawyers and judges has been remarkably inconsistent. Courts are split on such fundamental issues as whether lawyers' speech should be considered core political expression or some other category of speech with diminished constitutional protection; whether lawyers give up some of their expressive freedoms upon becoming members of the bar; and whether government interests such as maintaining the public's respect for lawyers are sufficient bases for restricting speech. This Article considers how constitutional principles such as the principle of content- and viewpoint-neutrality, the distinction between speech and conduct, the …
United States V. Emerson And The Second Amendment, Wade Maxwell Rhyne
United States V. Emerson And The Second Amendment, Wade Maxwell Rhyne
UC Law Constitutional Quarterly
This Note analyzes the district court decision in United States v. Emerson and compares the two competing theories of the Second Amendment: the states' rights and individual rights theories. The Note constitutionally examines these competing theories historically, textually, doctrinally, prudentially, and structurally. The Note then proposes a level of scrutiny and subsequent test for the government's curtailment of any individual right that may exist in the Second Amendment. It is an effort to define the outer boundaries of the permissible limits which may be placed on gun ownership.
The End Of School Desegregation And The Achievement Gap, David J. Armor
The End Of School Desegregation And The Achievement Gap, David J. Armor
UC Law Constitutional Quarterly
After nearly five decades of school desegregation mandated by federal courts, school districts throughout the nation are being released from court orders, leading some civil rights proponents to complain that ending school desegregation will deprive minority students of educational benefits. This article argues that ending school desegregation will not have any appreciable impact on the academic achievement of African American students. To the extent that desegregation had academic benefits, those benefits have already occurred. Despite the extensive desegregation of American schools during the 1970s and 1980s, a large black-white achievement gap remains, and there is credible evidence that this gap …
The Tensions Between Integration And School Reform, John A. Powell
The Tensions Between Integration And School Reform, John A. Powell
UC Law Constitutional Quarterly
It is widely recognized that the purpose of education is not merely to develop in students a narrow set of skills. Rather, education should prepare all students to assume roles in actively shaping our democracy. Racial segregation and economic isolation in schools prevent the attainment of full and meaningful citizenship rights for students of color and low-income students in that they deny fair access to educational opportunities and other structures crucial to democratic participation. These forces also undermine our striving for a truly inclusive and participatory society. Many currently popular school reform measures promise benefits in terms of student outcomes …
Return To Neighborhood Schools, Concentrated Poverty, And Educational Opportunity: An Agenda For Reform, Patrick James Mcquillan, Kerry Suzanne Englert
Return To Neighborhood Schools, Concentrated Poverty, And Educational Opportunity: An Agenda For Reform, Patrick James Mcquillan, Kerry Suzanne Englert
UC Law Constitutional Quarterly
Throughout the US, school systems that once faced federally-mandated desegregation plans have been declared "unitary" - that is, courts ruled that these districts have removed any vestiges of overt segregation and therefore need not adhere to previous integration mandates. In Denver, Colorado, after busing students for over 20 years, federal courts declared the city school system unitary in 1996. In Denver the return to neighborhood schools has meant a concurrent return to more racially segregated schools. Given the strong correlation between race/ethnicity and socioeconomic status in US urban centers, the return to neighborhood schools has created conditions of concentrated poverty …
The Consequences Of School Desegregation: The Mismatch Between The Research And The Rationale, Amy Stuart Wells
The Consequences Of School Desegregation: The Mismatch Between The Research And The Rationale, Amy Stuart Wells
UC Law Constitutional Quarterly
This article challenges the narrow way in which the "consequences" of school desegregation have been defined - namely as measured by standardized test scores alone. This article serves as a reminder that in the early, pre-Brown cases, the Supreme Court argued that the purpose of school desegregation was to assure "wider association" for African American students who had been cut off from high-status educational institutions and the honor and social networks they confer. The bulk of social science research on school desegregation has ignored this rationale as researchers mostly examined students' test scores after only one or two years of …
Why Dosen't She Leave - The Collision Of First Amendment Rights And Effective Court Remedies For Victims Of Domestic Violence, Laurie S. Kohn
Why Dosen't She Leave - The Collision Of First Amendment Rights And Effective Court Remedies For Victims Of Domestic Violence, Laurie S. Kohn
UC Law Constitutional Quarterly
Why doesn't she leave? This is a commonly asked question by people confounded by the phenomenon of women who stay in battering relationships despite the abuse they endure. Social scientists have offered many explanations to elucidate this seemingly paradoxical behavior. This article, however, focuses on a pervasive and previously unexamined explanation: the victim's fear that the batterer will publicize truthful confidential information about her. Typically, the batterer will threaten that if the victim leaves him, he will disseminate information such as the victim's HIV status, sexual orientation, or immigration status. The stakes are high. The victim will fear, often rationally, …
Colorblind Redistricting: Racial Proxies As A Solution To The Court's Voting Rights Act Quandry, Michelle E. O'Connor-Ratcliff
Colorblind Redistricting: Racial Proxies As A Solution To The Court's Voting Rights Act Quandry, Michelle E. O'Connor-Ratcliff
UC Law Constitutional Quarterly
This Note explores the crossroads of the Voting Rights Act of 1965, redistricting, strict scrutiny, the colorblind ideal, and racial proxies. Although better than total rejection of race as a consideration in redistricting, racial proxies are not good enough. The unattained colorblind ideal should not be treated as if it were reality. We are not yet a colorblind society and are likely a long way from it. Race awareness does have a part to play in building America into the Court's dream utopia that eventually becomes colorblind. Racial proxies only prompt states to pretend that race is not a factor …
Anti-Vibrator Legislation: The Law Is On Shaky Ground, Nicole Schilder
Anti-Vibrator Legislation: The Law Is On Shaky Ground, Nicole Schilder
UC Law Constitutional Quarterly
This Note confronts the absurdity of laws that ban the sale and production of sexual devices. These laws are imbedded in the obscenity statutes of Alabama, Georgia, Mississippi, Texas, and Virginia. The Note commences with a history of sexual devices in the United States. The Note proceeds to use the 11th Circuit case of Williams v. Pryor and cases from Colorado, Georgia, Kansas, Louisiana, and Texas to demonstrate that anti-sexual device statutes are unconstitutional because they infringe on the privacy right or, in the alternative, are overbroad and thus must fail under the rational basis test.