Law Commons^™

The Establishment Clause And The Free Exercise Clause Of The Washington Constitution—A Proposal To The Supreme Court, Frank J. Conklin, James M. Vaché

Seattle University Law Review

This Article traces the independent development in the case law interpreting the Washington Constitution and in the drafting of the document itself. It is the position of the authors that the strict approach and consequent rigorous, independent analysis by the Washington court is not a necessary or appropriate method of deciding church-state issues, at least in many contexts. When examining establishment clause issues under the state constitution, the Washington State Supreme Court should therefore modify its previous position and adopt a more common-sense approach in lieu of the doctrinaire rigidity that has characterized prior opinions.

Framers Intent: The Illegitimate Uses Of History, Pierre Schlag

Seattle University Law Review

In this Article, I will present a series of attacks on intentionalism. My efforts are aimed at eroding the high ground that the intentionalist position appears to enjoy in the interpretation of state and federal constitutions. Currently, one almost has to justify departure from the framers intent in advancing a nonconforming constitutional interpretation. This Article is an attempt to reverse this assumed burden of persuasion.

Washington's Equal Rights Amendment: It Says What It Means And It Means What It Says, Patricia L. Proebsting

Seattle University Law Review

This Comment begins with a discussion of the ERA's legislative history and the legislature's attempt to bring state statutes into compliance with the ERA upon its passage. Next, judicial interpretations of the new constitutional guarantee are compared to the interpretation of the Washington Constitution's privileges and immunities clause. Finally, the Comment compares Washington's standard of review with a similar standard used by the Pennsylvania Supreme Court and argues that the Washington Supreme Court should adopt the absolute standard applied by the Pennsylvania courts.

An Analytical View Of Recent "Lending Of Credit" Decisions In Washington State, Hugh Spitzer

Seattle University Law Review

This Article first presents an analytic framework for assessing government actions that present possible violations of article VIII, sections 5 and 7, and then analyzes five recent cases interpreting those provisions.

The Right To Speak, Write, And Publish Freely: State Constitutional Protection Against Private Abridgment, Justice Robert F. Utter

Seattle University Law Review

This Article presents an independent analysis of a fundamental aspect of the free speech provision of the Washington Declaration of Rights, which closely resembles the free speech provisions of many other state constitutions. The focus is on whether the Washington free speech provision protects Washingtonians against abridgment of their speech and press rights by private individuals and organizations. To answer this question, this Article examines the nature of state constitutions and government, the case law of other jurisdictions interpreting similar provisions, the text of the Washington provision, the origins of the provision, the historical background of the Washington Constitutional Convention, …

Less Than The Sum Of Its Parts, Charles F. Abernathy

Georgetown Law Faculty Publications and Other Works

Constitutional Choices is not a newly created treatise but a collection of essays on a diverse range of topics. Most were printed previously in serial publications, and the others, one suspects, arose from projects undertaken independently of one another over the last few years. Such reprintings may strike some as a waste of paper and purchasers' money, but, as The New Yorker Album of Drawings amply proves, additional insight is often gained from seeing parts brought together as a whole. But that is not the case here, for the whole of Tribe's new book is less than the sum of …

Will The Seventh Amendment Survive Adr?, Roger W. Kirst

Journal of Dispute Resolution

The seventh amendment problem is not within the ADR procedures themselves, but rather in how ADR is integrated into the total system of formal dispute resolution. Proponents of ADR may not intend to destroy federal civil jury trial, but ADR could be a serious threat to the seventh amendment if alternative procedures supplant civil jury trial and leave the constitutional language as a hollow shell. On the other hand, substantial use of ADR would not necessarily threaten seventh amendment values if jury trial remains available; instead, ADR procedures in routine litigation might protect the role of the civil jury in …

Battling A Receding Tort Frontier: Constitutional Attacks On Medical Malpractice Laws, David Randolph Smith

Oklahoma Law Review

No abstract provided.

Backing Off Bivens And The Ramifications Of This Retreat For The Vindication Of First Amendment Rights, Joan Steinman

Michigan Law Review

In Part I of this Article, Chappell and Bush are analyzed against the backdrop of the preceding Bivens cases. The analysis explains how these cases presented situations that were similar to one another but unlike any the Supreme Court previously had faced in Bivens cases. It demonstrates how the Court departed from the line of analysis that its previous Bivens cases had established, in a way that makes it more difficult for at least some plaintiffs seeking vindication of their constitutional rights to succeed in having a money damage remedy implied directly under the Constitution. The Article then argues that …

Second Generation State Takeover Legislation: Maryland Takes A New Tack, Michigan Law Review

Michigan Law Review

This Note examines the approach recently adopted by the Maryland legislature in special session one year after the Supreme Court's decision in MITE. Maryland has departed radically from the regulatory approach of first generation statutes; however, this Note argues that the statute has failed to escape the constitutional infirmities of its predecessors. Part I outlines the various mechanisms that regulate acquisition of corporate control: the federal tender offer regulatory mechanism known as the Williams Act, state takeover legislation such as the Illinois statute invalidated in MITE, and the new Maryland statute. Part II analyzes the debate concerning the …

International Law As Law In The United States, Louis Henkin

Michigan Law Review

"International law is part of our law." Justice Gray's much-quoted pronouncement in The Paquete Habana was neither new nor controversial when made in 1900, since he was merely restating what had been established principle for the fathers of American jurisprudence and for their British legal ancestors. And Gray's dictum remains unquestioned today. But, after more than two hundred years in our jurisprudence, the import of that principle is still uncertain and disputed. How did, and how does, international law become part of our law? What does it mean that international law is a part of our law? What is the …

The Inventory Search And The Arrestee's Privacy Expectation, John M. Wray

Indiana Law Journal

No abstract provided.

Judicial Review And Constitutional Ethics, Martin H. Redish

Michigan Law Review

A Review of Constitutional Fate: Theory of the Constitution by Philip Bobbitt

A Republic, If You Can Keep It, Daniel N. Hoffman

Michigan Law Review

A Review of Undeclared War: Twilight Zone of Constitutional Power by Edward Keynes and The War-Making Powers of the President: Constitutional and International Law Aspects by Ann Van Wynen Thomas and A.J. Thomas, Jr.

The Doctrine Of Conditional Preemption And Other Limitations On Tenth Amendment Restrictions, Ronald D. Rotunda

Law Faculty Articles and Research

No abstract provided.

Freedom And Diversity In A Federal System: Perspectives On State Constitutions And The Washington Declaration Of Rights, Justice Robert F. Utter

Seattle University Law Review

Increasingly, Washington courts are being asked to consider our Declaration as an independent and effective source of protection for individual rights, including some rights not recognized or protected by the United States Supreme Court, and to give our state constitution a truly independent interpretation. No matter how sympathetic they may be to such requests, lawyers and judges face at least three major problems in making a truly independent interpretation of a state constitutional provision. First, they must justify departing from precedents laid down by the United States Supreme Court, a step which makes many people understandably uncomfortable until the differing …

U.S. Supreme Court: The 1983-84 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

Incest Statutes And The Fundamental Right Of Marriage: Is Oedipus Free To Marry?, Carolyn S. Bratt

Law Faculty Scholarly Articles

The U.S. Supreme Court has found that the right to marry is a constitutionally protected right. That right is restricted, however, by state incest statutes which impede marriage between adults by making some choices of a marriage partner illegal. The constitutional validity of modern state incest statutes is difficult to analyze because of shifting definitions, reflexive fears, ambivalent attitudes, and underlying facile generalizations.

The mere word "incest" triggers strong feelings of revulsion in most people. Therefore, any a priori labeling of a marriage as incestuous tends to preclude objective thought about the permissibility of the particular form of the marriage …

Withdrawing Jurisdiction From Federal Courts, Charles E. Rice

Journal Articles

Courts today accept two incorrect assumptions when interpreting the federal constitution. First, they assume that the judiciary is the sole branch with the definitive power in interpreting the Constitution. Second, they assume that the Supreme Court's decisions on constitutional interpretation are the law of the land and equal to the language of the Constitution itself. This Article proposes that Congress ought to exercise its removal power of appellate jurisdiction from the federal courts in certain areas of law to limit the Supreme Court’s power in creating law that expands the Constitution, which is mistakenly viewed today with equal stature as …

Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne

Faculty Scholarship

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.

Berger V. The Supreme Court—The Implications Of His Exceptions-Clause Odyssey, Thomas B. Mcaffee

Scholarly Works

In his 1969 Congress v. The Supreme Court, Raoul Berger evaluated the potential claims to supremacy of Congress and the Supreme Court under the exceptions clause of article III and found in favor of the Supreme Court. Berger explicated a narrow construction of Congress’ express power to make exceptions to the Court’s appellate jurisdiction, holding that Congress’ claimed power to curb judicial excess was at odds with the design of the Constitution and without historical foundation. From 1969 to 1980, Berger reaffirmed his initial reading of the legislative history of article III no less than four times, once in …

Blackfeet Tribal Business Council V. East Glacier Water & Sewer Dist., No. 83ca174 (Blkft. Tr. Ct., Nov. 17, 1983) 11 Ilr 6021, Blackfeet Tribal Court

Court Decisions

Plaintiff Blackfeet Tribal Business Council sought to enjoin the East Glacier Water & Sewer District, a public corporation organized pursuant to state law, composed of both tribal members and nonmembers, and located entirely within the Blackfeet Reservation, from shutting off water and sewer services to certain tribal members. Defendants moved for dismissal, arguing that the tribal court lacks jurisdiction because this case involves non-Indians. Upon reviewing provisions of the tribal constitution and noting the use of tribal forums by nonmembers in suits against members, the court finds that this case involves the health, safety and welfare of both Indian and …

Blackfeet Tribal Business Council V. East Glacier Water & Sewer Dist., No. 83ca174 (Blkft. Tr. Ct., Nov. 17, 1983) 11 Ilr 6021, Blackfeet Tribal Court

Court Decisions

Plaintiff Blackfeet Tribal Business Council sought to enjoin the East Glacier Water & Sewer District, a public corporation organized pursuant to state law, composed of both tribal members and nonmembers, and located entirely within the Blackfeet Reservation, from shutting off water and sewer services to certain tribal members. Defendants moved for dismissal, arguing that the tribal court lacks jurisdiction because this case involves non-Indians. Upon reviewing provisions of the tribal constitution and noting the use of tribal forums by nonmembers in suits against members, the court finds that this case involves the health, safety and welfare of both Indian and …

From Representation By Population To The Pursuit Of Elegance, Peter J. T. O. Hearn

Dalhousie Law Journal

Will the Canadian people be content with the present format of our recently won constitution? I do not think so. The obstacles to any further changes are indeed formidable, but they were equally formidable in the cases of the changes that have been achieved. In those cases, a popular will was at work which was spurred by the energy of a near-coalition of aggrieved groups, but which gently forced these energies into the formation of a more moderate working consensus. It is true that the consensus is a crippled one, especially concerning Quebec, and several problems will have to be …

Empty History, Erwin Chermerinsky

Michigan Law Review

A Review of Politics and the Constitution in the History of the United States, Volume 3: The Political Background of the Federal Convention by William Winslow Crosskey and William Jeffrey, Jr.

Equity And The Constitution, Michigan Law Review

Michigan Law Review

A Review of Equity and the Constitution by Gary L. McDowell

Berger's Defense Of The Death Penalty: How Not To Read The Constitution, Hugo Adam Bedau

Michigan Law Review

A Review of Death Penalties: The Supreme Court's Obstacle Course by Raoul Berger

The Death Penalty In America, Michigan Law Review

Michigan Law Review

A Review of The Death Penalty in America (Third Edition) by Hugo Adam Bedau