Law Commons^™

Signed, Sealed, Delivered, And ?: The Correlation Between Policy Areas, Signing, And Legal Ratification Of Organization Of American States’ Treaties By Member States., Alexandra R. Harrington

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Abstract: Signed, Sealed, Delivered, and ?: The Correlation Between Policy areas, Signing, and Legal Ratification of Organization of American States’ Treaties by Member States.

Like any organization, the Organization of American States’ ability to affect lasting policy changes through treaties is only as strong as the will of the federal legislative bodies of its member states. No matter how lofty or well-meaning the OAS’s goals in any area or matter addressed by a treaty, or the number of OAS member states which sign onto a treaty reflecting these goals, under the OAS Charter, and the federal constitutions of most member …

“Pick”Ering The Speech Rights Of Public School Teachers: Arguing For A Movement By Courts Toward The Hazelwood-Tinker Standard Under The First Amendment, Heather P. Bennett

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This Note addresses freedom of speech issues facing the nation's public schools, concentrating on the recent decision by the District Court for the Eastern District of Virginia, Lee v. York County School Division, for the final paper in my First Amendment course. Ultimately, this Note analyzes the court’s decision in this case and both standards set forth by the Supreme Court in dealing with free speech rights in the field of public education, which are currently creating a circuit split between the Courts of Appeals. The Note argues that the Hazelwood-Tinker standard applied to student speech should be the general …

Child Statements In A Post-Crawford World: What The United States Supreme Court Failed To Consider With Regard To Child Victims And Witnesses, Allie Phillips

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With the issuance of Crawford v. Washington, 514 U.S. 36 (2004), by the United States Supreme Court on March 8, 2004, wide spread confusion and concern swept through the nation’s prosecutorial community. The new rule announced in Crawford created too many questions and provided few answers by the Court. In particular, anxiety arose from the child protection community in regard to one primary issue: Are forensic interviews of child victims and witnesses, and other statements made by children, considered “testimonial statements” according to Crawford, thus requiring the child to take the witness stand? The Court further confused the new rule …

The Constitutionality Of The Partial-Birth Abortion Ban Of 2003, Katherine R. Atkinson

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Evaluates the constitutionality of the Partial-Birth Abortion Ban Act of 2003, beginning with a general discussion of relevant abortion procedures and jurisprudence. The Article then analyzes the Act using the void for vagueness doctrine, the undue burden test, and the Court's analysis in Stenberg, ultimately concluding the Act is unconstitutionl.

Privilege Through Prayer: Examining Bible-Based Prison Rehabilitation Programs Under The Establishment Clause, Nathaniel J. Odle

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In early June of 2006, an Iowa federal judge found a publicly-funded prison ministry to be in violation of the Establishment Clause and ordered it stopped. The program in question, the InnerChange Freedom Initiative, conceived and maintained by Prison Fellowship Ministries, utilized an overtly Christian model to rehabilitate inmates through spiritual and moral regeneration. In the eyes of the court, the failure of the state of Iowa to provide a reasonable secular alternative had the primary effect of advancing religion and fostered excessive governmental entanglement under a traditional Lemon analysis. Equally important in the court’s decision was the lack of …

The United States Supreme Court And The Second Amendment, Stefan B. Tahmassebi

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In the media and in the legislative arena there has been much debate about the holdings of the United States Supreme Court in regard to the Second Amendment. Some gun control proponents assert that the Supreme Court has held that the Second Amendment is a "collective right;" a right of the "collective" and not of any individual. Are they correct? Other gun control proponents assert that the Second Amendment has not been incorporated and is not effective against state government action. Firearms rights proponents assert that the Supreme Court has held that the Second Amendment protects the right of the …

The Meaning Of “Life”: The Morning-After-Pill, The Question Of When Life Begins, And Judicial Review, Jason M. Horst

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The Article foresees that certain state legislation limiting access to the morning-after-pill will thrust the question of when life begins onto the courts. This is due both to fact that the morning-after-pill has the potential to act at a point when the existence of potential life is in dispute and largely a matter of belief and to the fact that the constitutionality of the legislation may depend on whether courts consider the morning-after-pill abortion or contraception.

The Article argues that courts should address the question of whether to consider the morning-after-pill abortion or contraception by attempting to adopt and apply …

Free Expression And A Satisfied Society: What Child Pornography Laws Really Protect, James E. Bristol

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Motion pictures portray childhood sexuality by pushing the elusive and controversial line between free expression and exploitation. While child pornography laws protect real children as subjects in overtly sexually exploitative motion pictures (kiddy porn), in practice, due to issues of interpretation, application, and accessibility, free expression in mainstream motion pictures is supported more fully than child protection. Recent Supreme and Circuit Court decisions allow the motion picture industry to more freely portray childhood sexuality without fear of expression becoming illegal. Thus, as our social history illustrates, the societal awareness of the sexuality of children is all the more satisfied. Legally …

Death Penalty Jurisprudence In New York And The Supremacy Clause Of The United States Constitution: How Supreme Is It ?, Joseph E. Fahey

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This article deals with the treatment of the Supremacy Clause by the New York Court of Appeals in the evolution of its death penalty jurisprudence. It traces the application of the Clause by the Court and its abandonment in its imposition of stronger guarantees under the New York State Constitution

Daubert And The Disappearing Jury Trial, Allan Kanner

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Since being decided by the Supreme Court in 1993, Daubert v. Merrell Dow Pharmaceuticals has earned its place as one of the most misinterpreted and misapplied decisions in modern history. Meant to liberalize the standards for admissions of proof, the decision has had the opposite effect. The gatekeeper powers given to judges via Daubert, coupled with the internal and external incentives to prevent jury trials, has placed our entire civil justice system at risk.

The Public Forum Doctrine And Public Housing Authorities: Can You Say That Here?, Martin J. Rooney

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This article reviews a number of federal cases applying the Public Forum Doctrine of the First Amendment. The doctrine concerns the use of public property for expressive purposes. These cases explore the application of this doctrine to situations were the government is acting as landlord, and not as sovereign. Several of these federal cases have been seriously questioned, if not outright rejected, by the Massachusetts Supreme Judicial Court. The state court has taken a much more absolutist view of the Free Speech – First Amendment rights of public housing tenants than has most of the federal case law.

A Complete Property Right Amendment, John H. Ryskamp

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The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Compulsory Labor In A National Emergency: Public Service Or Involuntary Servitude? The Case Of Crippled Ports, Michael H. Leroy

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The 13th Amendment ban on involuntary servitude has new relevance as the U.S. grapples with national emergencies such as catastrophic hurricanes, flu pandemics, and terrorism. This Article considers work refusal and coerced work performance in life-threatening employment contexts. Overwhelmed by fear, hundreds of police officers and health care workers abandoned their jobs during Hurricane Katrina. Postal clerks worked against their will without masks in facilities with anthrax. A report by Congress worries that avian flu will cause sick and frightened medical personnel to stay away from work, thus jeopardizing a coherent response to a crisis.

How far can the U.S. …

Medical Self-Defense, Prohibited Experimental Therapies, And Payment For Organs, Eugene Volokh

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Three sisters lie in adjoining hospital rooms. A fourth lives a block away. All are in deadly peril.

Alice is seven months pregnant, and the pregnancy threatens her life. Her fetus has long been viable, so she no longer has the Roe/Casey right to abortion on demand. But because her life is in jeopardy, she has a constitutional right to save her life by hiring a doctor to perform a post-viability abortion, though it means the death of a viable fetus. She would even have such a right if the pregnancy were only posing a serious threat to her health, …

St. George Tucker’S Second Amendment: Deconstructing ‘The True Palladium Of Liberty’, Stephen P. Halbrook

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St. George Tucker, known as “America’s Blackstone” and author of the first commentary on the Constitution in 1803, described the Second Amendment right of the people to keep and bear arms as “the true palladium of liberty.” In a recent symposium at the William and Mary College of Law, Prof. Saul Cornell presented Tucker as an adherent of the view that the Amendment guarantees a collective or civic right to bear arms in the militia, not an individual right to have arms for self defense or as a dissuasion to tyranny. In response, my article scrutinizes Tucker’s work in detail …

Off To Elba: The Legitimacy Of Sex Offender Residence And Employment Restrictions, Joseph L. Lester

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Overborne by a mob mentality for justice, officials at every level of government are enacting laws that effectively exile convicted sex offenders from their midst with little contemplation as to the appropriateness or constitutionality of their actions. These laws fundamentally alter the liberties and freedom of convicted sex offenders to satisfy the ignorant fear of the masses. As a result, residence and employment restrictions which in theory are to protect society, in practice only exacerbate the perceived recidivism problem. When such laws are passed and the political process is broken, it is necessary for the judicial branch to step forward …

From Origin To Delta: Changing Landscape Of Modern Constitutionalism, Jiunn-Rong Yeh, Wen-Chen Chang

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This article deals with the question of whether and to what extent the two forces of democratization and globalization have altered our understandings of constitutionalism. We attempt to theorize a changing landscape of constitutionalism that includes transitional and transnational perspectives and examine respectively their features, functions and characteristics. First, we analyze respective developments of transitional and transnational constitutionalism by identifying their features, perspectives, functions, and characteristics. Then we examine to what extent and in what ways the developments in transitional and transnational constitutionalism pose challenges to our traditional understanding of modern constitutional laws. Finally, we shall picture a new constitutional …

Uncivil Religion: "Judeo-Christianity" And The Ten Commandments, Frederick Mark Gedicks, Roger Hendrix

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In the recent Decalogue Cases, Justice Scalia argued that when it comes to “public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits th[e] disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists.” Justice Scalia's argument represents the latest attempt to insulate American civil religion from Establishment Clause attack. A “civil religion” is a set of nondenominational values, symbols, rituals, and assumptions which create both reverence of national history and formation of a communal national bond. The most recent incarnation of American civil …

Troubles With Hiibel: How The Court Inverted The Relationship Between Citizens And The State, John A. Fennel, Richard Sobel

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This essay shows why the Supreme Court’s decision in Hiibel v. Sixth Judicial District of Nevada violates precedent, the Constitution, and the very basis for the relationship between government and the governed. First, the Court has violated the clear limits Terry v. Ohio set on the restricted searches based on reasonable suspicion within the restrictions of the Fourth and Fifth Amendments. By using the power of the state to compel citizens to produce identification, it also violates the First, Fourth, and Fifth Amendments as well as the unenumerated rights that conceptually link the enumerated rights in the Court’s jurisprudence. Finally, …

Theories Of Supranationalism In The Eu, Rafael Leal-Arcas

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Supranationalism has been a topic of analysis from various points of view when trying to understand the process of European integration. This article aims at presenting the major theories of supranationalism when discussing the ongoing process of European integration. Three main theories are examined: 1) normative versus decisional supranationalism; 2) theories of partial integration, and 3) legal theories of economic integration (such as the neo-liberal economic policy, the European Community (EC) as a special-purpose association of functional integration, as well as the theory of the supranational and intergovernmental dual structure of the EC).

Parents Involved & Meredith: A Prediction Regarding The (Un)Constitutionality Of Race-Conscious Student Assignment Plans, Eboni S. Nelson

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During the October 2006 Term, the United States Supreme Court will consider the constitutionality of voluntary race-conscious student assignment plans as employed in Parents Involved in Community Schools v. Seattle School District No.1 and Meredith v. Jefferson County Board of Education. These cases will mark the Court’s first inquiry regarding the use of race to combat de facto segregation in public education. This article examines the constitutionality of such plans and provides a prediction regarding the Court’s decisions.

The article begins with an analysis of the resegregation trend currently plaguing American educational institutions and identifies two causes for the occurrence: …

Wallace V. City Of Chicago And Accrual Of 1983 Claims, Michael D. Frisch

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This comment will analyze the recent 7th circuit case, Wallace v. City of Chicago. By ruling that claims under 1983 accrue from the moment of the injury, Wallace basically prevents convicts from recovering under 1983. I will examine the case and suggest resolutions for when the Supreme Court hears the case this term. See 440 F.3d 421

“Actions As Words, Words As Actions: Sexual Harassment Law, The First Amendment And Verbal Acts, John F. Wirenius

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The article examines the tension between the hostile work environment under the civil rights laws and the First Amendment’s protection of free speech, even when such speech is offensive and even discriminatory. After discussing the tension and its limits, the author examines other rationales proposed to resolve this tension, and rejecting them as unsatisfactory. Noting that hostile work environment doctrine, as a variable standard, employs a less “bright-line” approach than is typical of the First Amendment’s rule, the author nonetheless finds that the “open texture” of all rules, and the requirement that a hostile work environment be systematically pervasive or …

Reforming Redistricting, Nicholas Stephanopoulos

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There are several ways in which redistricting reform could in theory be achieved. State legislatures could voluntarily cede control over district-drawing, courts could invalidate especially egregious gerrymanders, or popular initiatives could be launched to create redistricting commissions. However, thanks to the self-interest of legislators as well as the Supreme Court’s unfortunate recent decisions in Vieth v. Jubelirer and LULAC v. Perry, the redistricting initiative is now the only realistic way to curb political gerrymandering. This Article provides the first detailed empirical and normative examination of redistricting initiatives. The Article begins by making the case for the popular initiative in the …

The Roberts Court And The Future Of Substantive Due Process: The Demise Of "Split-The-Difference" Jurisprudence?, John F. Basiak

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This article offers a critical perspective on a problematic trend in substantive due process doctrine and suggests a resolution based on the jurisprudence of Chief Justice John G. Roberts, Jr. The subject matter is both timely and un-preempted, and my analysis expands upon ideas I previously developed in two recently published law review articles, Inconsistent Levels of Generality in the Characterization of Unenumerated Fundamental Rights, 16 UNIVERSITY FLORIDA JOURNAL LAW & PUBLIC POLICY 401 (2005) and Dangerous Predictions: Referencing “Emerging” History and Tradition in Substantive Due Process Jurisprudence in an Era of Blue State Federalism, 15 WIDENER LAW JOURNAL 135 …

Herding Bullfrogs Towards A More Balanced Wheelbarrow: An Illustrative Recommendation For Federal Sentencing Post-Booker, Brian R. Gallini, Emily Q. Shults

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The Article argues in favor of shifting the balance in federal sentencing toward a more indeterminate system. By exploring the post-Booker legal landscape at both the federal and state levels, the Article asserts that the judiciary's continued reliance on the “advisory" Guidelines has practically changed federal sentencing procedures very little in form or function. Accordingly, the Article proffers that, rather than insisting upon the Guidelines' immutability, federal sentencing would do well to reflect upon its own history, and the evolution of its state counterparts.

Transsexualism And The Binary Divide: Determining Sex Using Objective Criteria, Mathew Staver

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This article deals with the legal status of postoperative transsexuals in terms of marriage and sex-based classifications. Until recently, sex has been assumed to be binary, i.e., male and female. Whether sex is immutable or transitory, objective or subjective, has now become an international concern. This article addresses every case in the world every decided on this issue. The resolution is centrally important to the battle over marriage and sex0based classifications. The thesis of this article is that sex is an immutable characteristic at the time of birth and must be determined by objective criteria. Sex must be determined by …

Fourth Amendment Searches Of The Home In Florida: State V. Rabb: Has The Florida Fourth District Court Of Appeals Barked Up The Wrong Tree? , Anthony Michael Stella

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The use of drug dogs in the United States began in 1970 when the United States Customs started using dog sniffs to detect the presence of contraband. This practice raised the Fourth Amendment issue of whether the use of a dog sniff required probable cause and a warrant. In United States v. Place, the United States Supreme Court found that a dog sniff is not a Fourth Amendment search because it is “less intrusive than a typical search” and because it reveals only “the presence or absence of narcotics.” Since that decision, some State courts have interpreted their constitutions to …

Polycephalous Anatomy Of The Ec In The Wto: An Analysis Of Law And Practice, Rafael Leal-Arcas

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This article analyzes the unique legal position of the European Community (EC) in the world trading system. Its polycephalous anatomy derives from the fact that all 25 Member States of the EC are members of the World Trade Organization (WTO) along with the EC itself. This means that when referring to the EC, the whole as well as its parts are independent Members of the WTO. This has legal and political consequences related to the allocation of powers between the national and supranational levels that will be analyzed. The article explains what is meant by a “mixed agreement” and analyzes …

Originalism And Parking Tickets, Lawrence Rosenthal

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Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems …