Law Commons^™

Progressivist Origins Of The 2003 California Gubernatorial Recall, Kira L. Klatchko

ExpressO

Progressivist Origins of the 2003 California Gubernatorial Recall, was written in Sacramento in the midst of the first statewide recall of an elected official in California. The paper explores the nature of the recall procedure and its implementation in the state, and is chiefly an inquiry into the relatedness of the current incarnation and its Progressivist root. It focuses particularly on the recall of Governor Gray Davis, and details how shifting attitudes towards public participation have altered the procedure over time.

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …

Muting Gideon's Trumpet: Pricing The “Right To Counsel” In Minnesota Courts, Peter Erlinder

C. Peter Erlinder

No abstract provided.

Vectoral Federalism, Scott Dodson

Scott Dodson

In this Article, I offer a new framework for understanding federalism. “Vectoral federalism” engages directional metaphors—horizontal and vertical—to group various federalism doctrines together into two principal groups. Horizontal federalism concerns the battle between the federal and the state governments for the power to regulate individuals. Vertical federalism concerns the federal government’s power to regulate states and the states’ concomitant power to resist this regulation. Viewing federalism doctrines as having vertical or horizontal vectors (or both) identifies their common justifications and characteristics, which can assist in understanding and in applying the principles of federalism. The directional synthesis also illuminates and helps …

Dignity: The New Frontier Of State Sovereignty, Scott Dodson

Scott Dodson

Few constitutional doctrines have had as turbulent a history as state sovereign immunity, the right of a state to refuse to appear as a defendant in court. The Court has, until recently, avoided a full explanation of the reason for immunizing states from certain suits. But in the 2002 decision Federal Maritime Commission v. South Carolina State Ports Authority, the Court asserted that the preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities. This “dignity rationale” lacks substantial justification and is untethered to any limiting principles. Given that, …

A Defining Faith: "True" Religion And The Establishment Clause, Jeffrey Shulman

ExpressO

This essay examines two trends in modern church-state law. Parts I and II review the history of the Supreme Court's Establishment Clause cases. It is a history that can best be understood as a series of jurisprudential maneuvers by which the Court has sought to make room for religion in civic life. The accommodations made by the Court to religious belief and conduct have, in effect, allowed for discrimination against non-religion, and have edged the court toward a nonpreferentialist perspective on disestablishment. But the Court’s accommodating attitude amounts to more than a preference for the many varieties of religious experience. …

Imposing Inequality On Law Schools, Kent Greenfield

Kent Greenfield

No abstract provided.

A Room Of One's Own: Morality And Sexual Privacy After Lawrence V. Texas, Marybeth Herald

ExpressO

No abstract provided.

Trial Of The Accused Taliban And Al Qaeda Operatives Captured In Afghanistan And Detained On A U.S. Military Base In Cuba, Jaime Jackson

ExpressO

A timely piece proposing solutions for issues certain to be raised in the upcoming trials of the accused Taliban and Al Qaeda operatives captured in Afghanistan and detained on a U.S. military base in Cuba. In the article, I begin by examining the history and jurisdiction of Article I and Article III courts and then address the history and structure of the Al Qaeda and Taliban regimes. After considering the Constitution, federal statutes, politics, and geographical limitations, I conclude that Al Qaeda detainees should be tried in Article III courts under terrorism statutes and Taliban detainees, as military combatants, should …

Indianapolis V. Edmond And The Original Understanding Of The Fourth Amendment, Bruce Newman

ExpressO

In this article I examine to what extent Indianapolis v. Edmond is in keeping with the original understanding of the Fourth Amendment. I conclude that the Founders were much more concerned with searches of real property, often insisting, not only on suspicion, but also a on warrant when searches of real property are involved. Secondly, while the Founders did not consider warrants necessary for searches and seizures off of real property (which for the sake of simplicity I call searches in public areas) the evidence suggests suspicion was required. Indeed, the Fourth Amendment was a direct response to the British …

National Identity Cards: Fourth And Fifth Amendment Issues, Daniel J. Steinbock

ExpressO

In the past two years there have been serious calls for a national identity system whose centerpiece would be some form of national identity card. Such a system is seen mainly as a tool against terrorists, but also as a useful response to illegal immigration, identity theft, and electoral fraud. Both proponents and opponents have noted the potential constitutional problems of such an identity system, but as yet there has been no published legal analysis of these questions. This article aims to fill that gap by analyzing the Fourth and Fifth Amendment issues in two major features of any likely …

The Narrow Tailoring Issue In The Affirmative Action Cases: Reconsidering The Supreme Court's Approval In Gratz And Grutter Of Race-Based Decision Making By Individualized Discretion, David Crump

ExpressO

No abstract provided.

Damage Limitations In Medical Malpractice Actions: Necessary Legislation Or Unconstitutional Deprivation, William R. Padget

South Carolina Law Review

No abstract provided.

Tattoos And The First Amendment - Art Should Be Protected As Art: The South Carolina Supreme Court Upholds The State's Ban On Tattooing, Bebby G. Frederick

South Carolina Law Review

No abstract provided.

Combating Money Laundering And International Terrorism: Does The Usa Patriot Act Require The Judicial System To Abandon Fundamental Due Process In The Name Of Homeland Security?, Joan M. O'Sullivan Butler

ExpressO

The USA PATRIOT Act was part of a wave of legislation which reshaped national security policies while simultaneously restricting traditional civil liberties in response to the terrorist attacks of September 11. Among the many terrorism related provisions of the Act, the executive branch was given authority to freeze the assets of organizations in which there is a foreign interest suspected of funding terrorist organizations through the use of an asset blocking order pending further investigation. The Act further permits the use of classified information which will be subjected to only ex parte, in camera inspection by the judge presiding over …

The Self-Incrimination Clause Explained And Its Future Predicted, Ronald J. Allen

ExpressO

No abstract provided.

Liability Rules For Constitutional Rights: The Case Of Mass Detentions, Eugene Kontorovich

ExpressO

Constitutional law assumes that rights should always be protected by property rules – that is, the government can only take them with the individual’s consent. This Article extends to constitutional law the insights of Calabresi and Melamed’s famous article on property and liability rules. Whether rights should be protected by property rules or liability rules depends on the transaction costs of negotiating a transfer of rights. As transaction costs rise, liability rules become more attractive.

This Article shows that liability rules can have an important role in constitutional law. Using mass detentions in national security emergencies as a case study, …

Canadian Fundamental Justice And American Due Process: Two Models For A Guarantee Of Basic Adjudicative Fairness, David M. Siegel

ExpressO

This paper traces how the Supreme Courts of Canada and the United States have each used the basic guarantee of adjudicative fairness in their respective constitutions to effect revolutions in their countries’ criminal justice systems, through two different jurisprudential models for this development. It identifies a relationship between two core constitutional structures, the basic guarantee and enumerated rights, and shows how this relationship can affect the degree to which entrenched constitutional rights actually protect individuals. It explains that the different models for the relationship between the basic guarantee and enumerated rights adopted in Canada and the United States, an “expansive …

The Coherence Of Orthodox Fourth Amendment Jurisprudence, Samuel C. Rickless

ExpressO

In the legal academy it is widely believed that the U.S. Supreme Court's orthodox (post-Katz, pre-Houghton) fourth amendment jurisprudence is theoretically incoherent. In particular, the Court has been criticized (on doctrinal and textual grounds) for accepting (i) Justice Harlan's definition of a "search" as an infringement of a subjective expectation of privacy that society is prepared to recognize as reasonable, (ii) the Warrant Requirement and Probable Cause Requirement (according to which searches and seizures without a warrant or probable cause are presumptively unreasonable), and (iii) the Exclusionary Rule (according to which any evidence obtained in violation of a person’s fourth …

In The Name Of National Security Or Insecurity?: The Potential Indefinite Detention Of Non-Citizen Certified Terrorists In The United States And The United Kingdom In The Aftermath Of September 11, 2001, Dana L. Keith

ExpressO

No abstract provided.

The Military -Judicial Nexus In Response To Terrorism: Kkk And Alqaeda, Wayne Mccormack

ExpressO

In considering the validity of "enemy combatant" status and military detention for alleged terrorists, several additional propositions emerge. Indefinite military detention of a US citizen arrested on US soil for a domestic crime is far beyond the pale of basic constitutional underpinnings. With respect to noncitizens and citizens captured overseas, military power is arguable but far from solid. In that event, why not take the route that does the least disruption to our system? Second, because the law abhors incoherence, we should be able to make coherent distinctions among alleged terrorists for the purpose of deciding who is tried in …

Judge Noonan's J'Accuse . . . !, Brannon P. Denning

ExpressO

This review of John Noonan’s book Narrowing the Nation’s Power: The Supreme Court Sides with the States critically evaluates the evidence Judge Noonan offers in support of his thesis that the Court's recent federalism decisions have done violence to the Constitution, and put Congress's ability to govern effectively at risk. I conclude that while one may quarrel with aspects of the Court's recent approach to federalism questions, the indictment Judge Noonan has penned fails to acknowledge reasonable arguments that contradict his thesis, and that he unfairly suggests that the Court has abandoned good faith legal analysis in favor of political …

Lawrence And Same-Sex Marriage Bans: On Constitutional Interpretation And Sophistical Rhetoric, Mark Strasser

ExpressO

No abstract provided.

“Preemptive War”: Is It Constitutional?, John B. Mitchell

ExpressO

No abstract provided.

Secularism's Laws: State Blaine Amendments And Religious Persecution, Kyle Duncan

ExpressO

The State Blaine Amendments are provisions in thirty-seven state constitutions that restrict persons’ and organizations’ access to public benefits on religious grounds. They arose largely in the mid- to late-1800s in response to bitter strife between an established Protestant majority and a growing Catholic minority that sought equal access to public funding for Catholic schools. After the failure to pass a federal constitutional amendment—the "Blaine Amendment"—that would have sealed off public school funds from "sectarian" institutions, similar provisions proliferated in state constitutions. These "State Blaines" have often been interpreted, under their plain terms, as erecting religion-sensitive barriers to the flow …

Takings Formalism And Regulatory Formulas: Exactions And The Consequences Of Clarity, Mark Fenster

ExpressO

A vocal minority of the U.S. Supreme Court recently announced its suspicion that lower courts and state and local administrative agencies are systematically ignoring constitutional rules intended to limit, through heightened judicial review, exactions as a land use regulatory tool. Exactions are the concessions local governments require of property owners as conditions for the issuance of the entitlements that enable the intensified use of real property. In two cases decided over the past two decades, Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), the Court has established under the Takings Clause a logic and metrics …

Circuit-Specific Application Of The Internal Revenue Code: An Unconstitutional Tax, Jeffrey S. Kinsler

ExpressO

My manuscript unmasks a dirty little secret of the federal government, namely, that the Internal Revenue Service is applying various tax laws in a non-uniform manner in violation of the Tax Uniformity Clause (Art. I, § 8, cl. 1) of the United States Constitution. It is indisputable that the Framers of the Constitution intended for federal taxes be applied uniformly throughout the nation; that is, residents of New York ought to pay the same tax as residents of California. The IRS’s practice, however, is quite the contrary.

Affirmative Action: More Efficient Than Color Blindness, Abraham Lee Wickelgren

ExpressO

One of the most compelling reasons against affirmative action is the principle of color blindness, that is, the idea that race is an irrelevant characteristic that should not affect higher education admissions or hiring decisions. Despite its intuitive appeal, this paper shows that adherence to this principle impedes economic efficiency when there has been past discrimination based on color. Past discrimination creates inefficiencies in the economy that persist across generations. Because of this persistence, race is not an irrelevant characteristic for firms and universities looking to hire or admit the best candidates. Affirmative action, not color-blindness, is necessary to reduce …

The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham

ExpressO

Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important …

Same-Sex Union Announcements: Precis On A Not So Picayune Matter, James M. Donovan

Law Faculty Scholarly Articles

Although some newspapers have voluntarily begun to publish same-sex union announcements, others will continue in their traditional exclusionary practices. Some of those papers can anticipate being accused in court of unlawful discrimination where the law allows that cause of action. Reflexively, those newspapers will in turn erect a defensive shield from such charges by appealing, at least in part, to the First Amendment.

This comment examines the viability of that defense. The set-piece for the discussion are the details of a complaint, described in Part I, lodged against the Times-Picayune by a lesbian couple that was denied access to its …