Law Commons^™

Two Dissents, Charles S. Doskow

Charles S Doskow

This essay discusses individual dissents by two justices of the Supreme Court in cases decided at the close of the most recent term, and comments on the individual qualities that led each to make individual comments. The dissent of Justice David Souter in Osborne, in which the majority refused to find a constitutional right to post-conviction DNA testing, urged a moderate view with respect to the creation of new rights where technology has altered traditional fact patterns. Justice Clarence Thomas’s dissent in the voting rights case is striking, in that he alone on the Court would have held the 2006 …

Using Activism Appropriately, Alan E. Garfield

Alan E Garfield

No abstract provided.

About Time: The Timeliness Of Habeas Corpus And An Exceptional Circumstance In Boumediene V. Bush, Benjamin J. Lozano

Benjamin J Lozano

In wartime states of emergency, the Supreme Court has historically held that a constitutional entitlement to habeas review is neither predicated on the length of detention nor the timeliness of due process, but rather is objective, concrete, and atemporal. The question of wartime habeas corpus has therefore always been an ontological question, exclusively determined by the corresponding categories of subject and space. However, this paper argues that a surreptitious shift in methodology buried inside the ostensible precedent of Boumediene v. Bush should not be overlooked, for the ruling signals the inaugural moment whereby the length and indefinite duration (i.e. the …

Section 5: Individual Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

La Incidencia De La Acción De Tutela En Las Políticas Públicas, Fernando Castillo Cadena

Fernando Castillo Cadena

No abstract provided.

Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

More than fifty years ago, Congress enacted a prohibition against political campaign intervention for all charities, including churches and other houses of worship, as a condition for receiving tax deductible contributions. Yet the IRS has never taken a house of worship to court for alleged violation of the prohibition through political comments from the pulpit, presumably at least in part because of concerns about the constitutionality of doing so. This decision is surprising, because a careful review of Free Exercise Clause case law – both before and after the landmark Employment Division v. Smith decision – reveals that the prohibition …

Our Schizoid Approach To The United States Constitution: Competing Narratives Of Constitutional Dynamism And Stasis, Sanford Levinson

Indiana Law Journal

Jerome Hall Lecture at the Indiana University Maurer School of Law - Bloomington on October 3, 2008

The Height Of Sophistication: Law And Professionalism In The City-State Of Charleston, South Carolina, 1670-1775, William E. Nelson

South Carolina Law Review

No abstract provided.

Refuge From A Jurisprudence Of Doubt: Hohfeldian Analysis Of Constitutional Law, Allen Thomas O'Rourke

South Carolina Law Review

No abstract provided.

Rethinking Women And The Constitution: An Historical Argument For Recognizing Constitutional Flexibility With Regards To Women In The New Republic, Samantha Ricci

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

A Step Too Far - Posthumously Conceived Children And Social Security Entitlements In Vernoff V Astrue, Mel Cousins

Mel Cousins

This case note examines a recent decision of the Court of Appeals for the Ninth Circuit concerning the entitlements of posthumously conceived children under social security. In contrast to its earlier (expansionary) decision in Gillett-Netting, here the Court set out the limits to how far it is willing to push the interpretation of the (convoluted) legislation and refused to find a right to benefit where there was no evidence that the father had consented to (or even considered) having a child post-mortem.

Childhood Immunizations: Paralysis On Parental Rights, Demand On Taxpayer Dollars, Rena L. Holmes Jones

Rena L Holmes Jones

The rise in the incidence of Autism Spectrum Disorder (ASD) is one of the most serious public health issues in recent years. The current statistics suggests that roughly one child out of every 150 has autism or an autistic-like disorder, compared to earlier estimates placing the rate at four or five children out of every 10,000. Autism is a condition that typically reveals itself within the first 0-4 years of life. The wide continuum of associated cognitive and neurobehavioral disorders have three core-defining features: impairments in socialization, impairments in verbal and nonverbal communication, and restricted and repetitive patterns of behaviors. …

Meade V. Dennistone: The Naacp's Test Case To "...Sue Jim Crow Out Of Maryland With The Fourteenth Amendment.", Garrett Power

Garrett Power

In 1936, Edmond D. Meade, an African-American pastor at Israel Baptist Church in Baltimore, contracted to purchase a home in an almost exclusively white block of Baltimore City. Meade’s purchase was followed by a suit by the white residents to block the use of the home by the new buyers. This work examines the legacy of Meade v. Dennistone, the effect of the decision on “free market forces” and concludes by considering the impact of the decision – and the community response – on the final judicial rejection of the “separate but equal” treatment of the races.

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions, 2007, Garrett Power

Garrett Power

Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions (2007) is electronically published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in Land Use Control and Environmental Law courses. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text consists of non-copyrighted material and professors and students are free to use it in whole or part. The author requests …

Has The Fourth Amendment Gone To The Dogs?: Unreasonable Expansion Of Canine Sniff Doctrine To Include Sniffs Of The Home, Leslie A. Lunney

Leslie A Lunney

No abstract provided.

Peek-A-Boo I See You:The Constitution, Defamation Plaintiffs And Pseudonomous Internet Defendants, Charles S. Doskow

Charles S Doskow

Plaintiffs seeking to bring defamation actions arising out of anonymous or pseudononynous speech on the Internet must often seek court assistance in discovering the true identity of the speaker. Normally the website will not disclose the identities. The constitutional right to anonymous speech is often asserted in opposition to motions for disclosure. The courts have imposed varying requirements on plaintiffs seeking defendants’ identities, ranging from requiring simply a good faith pleading to showing sufficient facts to meet a summary judgment motion. A recent Maryland case adopts a balancing test. This article argues that plaintiffs should not be unduly hindered by …

Rules And Tools Of Nonprofit Lobbying, Sharon Wilson

Sharon Wilson

Abstract: This article focuses primarily on the federal tax law restrictions on lobbying and political campaign activities of 501( c)(3) organizations. A brief history of the restrictions on lobbying is followed by an instructional guide for nonprofit organizations and attorneys seeking to advise nonprofits about permissible conduct in this arena. Opportunities for greater political involvement through use of sec 501(h), sec 501©(4) and other strategies that have been deemed permissible by the Internal Revenue Service are explored. An examination of the IRS’s questionable annual examination process for nonprofits is explored.

The Employment Non-Discrimination Act: An Argument For H.R. 3685, Deborah L. Cook

Deborah L Cook

This article examines the language of H.R. 3685 and compares it to an earlier version of the Employment Non-Discrimination Act that was introduced in April of 2007 as H.R. 2015. Drawing upon arguments from both conservative and liberal perspectives challenging the Act, this article argues that the latest version of the Employment Non-Discrimination Act, proposed in September of 2007 as H.R. 3685, offers greater promise for protecting gay, lesbian and bisexual Americans from discrimination in the workplace. The revised Employment Non-Discrimination Act will act to ensure that individuals will be protected regardless of their sexual orientation by the same fundamental …

Has The Fourth Amendment Gone To The Dogs?: Unreasonable Expansion Of Canine Sniff Doctrine To Include Sniffs Of The Home, Leslie A. Lunney

Leslie A Lunney

No abstract provided.

Betraying Truth: The Abuse Of Journalistic Ethics In Middle East Reporting, Kenneth Lasson

Kenneth Lasson

BETRAYING TRUTH: THE ABUSE OF JOURNALISTIC ETHICS IN MIDDLE EAST REPORTING By Kenneth Lasson Abstract In a world at once increasingly chaotic and historically interconnected, the news media have come to play unprecedented roles both in the virtually instantaneous recording of fast-moving events and in influencing the occurrence and evolution of those events themselves. The media, of course, are not beyond reproach. Freedom of the press does not mean immunity from criticism. Reputable journalists abide by standards which, though largely self-imposed, are presumed to be honestly applied. When these principles are abrogated, violators should be taken to task. Nowhere has …

Cases And Materials On Privatization, Alexander Volokh

Alexander Volokh

These are the materials for my course on privatization, and the draft for an eventual casebook.

The Future Of Local News Reporting, Alan E. Garfield

Alan E Garfield

No abstract provided.

Has The Fourth Amendment Gone To The Dogs?: Unreasonable Expansion Of Canine Sniff Doctrine To Include Sniffs Of The Home, Leslie A. Lunney

Leslie A Lunney

No abstract provided.

Has The Fourth Amendment Gone To The Dogs?: Unreasonable Expansion Of Canine Sniff Doctrine To Include Sniffs Of The Home, Leslie A. Lunney

Leslie A Lunney

No abstract provided.

A Free Speech Right To Impugn Judicial Integrity In Court Proceedings, Margaret C. Tarkington

Margaret C Tarkington

Throughout the United States, state and federal courts discipline and sanction attorneys who make disparaging remarks about the judiciary and thereby impugn judicial integrity. In so doing, courts have almost universally rejected the constitutional standard established in New York Times v. Sullivan for punishing speech regarding government officials. While courts have imposed severe sanctions regardless of the forum where the speech has occurred, many of the cases involve speech made by attorneys in court proceedings. The existing scholarly literature generally supports the denial of First Amendment protection in such cases, indicating that attorney speech when made in court proceedings is …

Which Came First The Parent Or The Child?, Mary P. Byrn

Mary P. Byrn

From the moment a child is born, she is a juridical person endowed with constitutional rights. A child’s parents, however, do not become legal parents until a state statute grants them the fundamental right to raise one’s child. The state, therefore, exercises considerable power and discretion when it drafts the parentage statutes that determine who becomes a legal parent. This article asserts that the state, through its parens patriae power, has a duty to act as an agent for children when it drafts its parentage statutes. In particular, the state must adopt parentage statutes that satisfy children’s fundamental right to …

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …

Administrative Law In The Roberts Court: The First Four Years, Robin K. Craig

Robin K. Craig

Given Justice David Souter’s retirement in the summer of 2009, the four U.S. Supreme Court terms that began in October 2005 and ended in June 2009 constitute a first distinct phase of the Roberts Court. During those first four terms, moreover, the Court decided a number of cases relevant to the practice and structure of administrative law.

This Article provides a comprehensive survey and summary of the Supreme Court’s administrative-law-related decisions issued during this first phase of the Roberts Court. It organizes those decisions into three categories. Part I of this Article discusses the Supreme Court decisions that affect access …

Our Forgotten Founders: Reconstruction, Public Education, And Constitutional Heroism, Thomas G. Donnelly

Thomas G Donnelly

This Article examines a set of constitutional stories that has not been the subject of focused study by legal scholars—the stories we tell our schoolchildren about the Founding and Reconstruction. These stories offer new clues about the background assumptions that elite lawyers, political leaders, and the wider public bring to bear when they consider the meaning of the Constitution. Since the early twentieth century, our leading high school textbooks have tended to praise the Founding generation and canonize certain “Founding Fathers,” while, at the same time, largely ignoring Reconstruction’s key players and underemphasizing the constitutional revolution these “Forgotten Founders” envisioned …

The Story Of Us: Resolving The Face-Off Between Autobiographical Speech And Information Privacy, Sonja West

Sonja R. West

Increasingly more “ordinary” Americans are choosing to share their life experiences with a public audience. In doing so, however, they are revealing more than their own personal stories, they are exposing private information about others as well. The face-off between autobiographical speech and information privacy is coming to a head, and our legal system is not prepared to handle it. In a prior article, I established that autobiographical speech is a unique and important category of speech that is at risk of being undervalued under current law. This article builds on my earlier work by addressing the conflict between autobiographical …