Law Commons^™

The Solomon Amendment, Expressive Associations, And Public Employment, Paul Secunda

ExpressO

Rumsfeld v. FAIR apparently concedes that public employers, in the guise of public law school members of the FAIR association, have expressive association rights. This state of affairs could now mean that public employers could gain constitutional rights at the expense of pubic employees. Thus, to the extent that public employers are considered expressive associations, public employees may see their free speech and other constitutional rights diminished (even more so than they recently have been by the Garcetti v. Ceballos decision).

Thankfully, I cannot imagine that the Court, if faced with the question directly, would find that public employers have …

The Legality Of The Use Of White Phosphorus By The United States Military During The 2004 Fallujah Assaults, Roman O. Reyhani

ExpressO

The assaults on Fallujah by the United States military in April and November 2004 involved the use of white phosphorus. White phosphorus has extremely damaging effects on the health of victims, including severe burns and irritation of the respiratory system. This article examines whether the use of white phosphorus was a violation of the Chemical Weapons Convention, Protocol III to the Convention on Conventional Weapons and international humanitarian law. It concludes that the use of white phosphorus was illegal as it could be argued to be a chemical weapon, a riot control agent, or incendiary weapon. Furthermore, the methods and …

Surfing Past The Pall Of Orthodoxy: Why The First Amendment Virtually Guarantees Online Law School Graduates Will Breach The Aba Accreditation Barrier, Nicholas C. Dranias

ExpressO

The impact of the constitutional dilemma created by the ABA’s aversion to Internet schooling is widespread. Currently, 18 states and 2 U.S. territories restrict bar exam eligibility to graduates of ABA-accredited law schools. Additionally, 29 states and 1 U.S. territory restrict admission to practice on motion to graduates of ABA-accredited law schools.

Although numerous lawsuits have been filed in ultimately failed efforts to strike down bar admission rules that restrict eligibility to graduates of ABA-accredited law schools, none has challenged the ABA-accreditation requirement based on the First Amendment’s prohibition on media discrimination. This Article makes that case.

Despite accelerating technological …

Dialogic Allocution, Felix Valenzuela

ExpressO

This Article argues in favor of increasing the scope of the national sentencing dialogue in order to remedy the current sentencing defects. The increase in scope hinges on expanding the role of allocution within criminal sentencing. By treating allocution as seriously as the Federal Rules do, new discussants will contribute creative solutions for the defects, while at the same time enhancing institutional and ontological legitimacy. To achieve that end, the Article proposes a modified view of allocution. This dialogic allocution unifies the judge and defendant as co-discussants in the national debate, rather than pitting them against each other. The Article …

Put That In Your Thurible And Smoke It: Religious Gerrymandering Of Sacramental Intoxication, Mark A. Levine

ExpressO

In February 2006, the Supreme Court ruled on the case Gonzales v. O Centro Beneficente Uniao do Vegetal, granting an injunction permitting the use of ayahuasca, a plant containing the Schedule I substance Dimethyltryptamine, for sacramental intoxication purposes. The unanimous Court justified this injunction by comparing the Uniao do Vegetal's use of the illegal substance with the Native American Church's use of peyote, which contains another Schedule I substance, mescaline. This ruling is incomptabile with lower court rulings rejecting the Ethiopian Zion Coptic Church use of marijuana, consistently stating that the Native American Church has rights beyond those of other …

Bridging The Divide Between Justice Breyer’S Progressivism And Justice Scalia’S Textualism: Introducing The Concept Of “Negative Originalism” To Guide Constitutional Interpretation In “Values Based” Adjudication, Adam Lamparello

ExpressO

This Article examines the United States's Supreme Court's reliance upon foreign sources of law when adjudicating "values based" cases. In particular, the Article analyzes the Court's decision in Lawrence v. Texas, with particular emphasis upon the interpretive approaches utilized by Justices Breyer ("progressivism") and Scalia ("originalism") in arriving at their respective decisions. Based upon such examination, including the efficacy of relying upon foreign sources of law to support domestic constitutional decisions, this Article proposes a new interpretive paradigm, entitled "negative originalism", which strives to ensure fidelity to the Constitution's original purposes and objectives, while allowing courts sufficient flexibility to fashion …

Of Elephants And Embryos: A Proposed Framework For Legal Personhood, Jessica Berg

ExpressO

No abstract provided.

How Do We Deal With This Mess? A Primer For State And Local Governments On Navigating The Legal Complexities Of Debris Issues Following Mass Disasters, Ryan M. Seidemann, Megan K. Terrell, Christopher D. Matchett

ExpressO

The devastation wrought by the 2005 hurricane season brought into bold relief the need for comprehensive debris management plans in the United States. As cleanup efforts commenced following Hurricane Katrina, it became abundantly apparent that the local governments were not prepared to deal with the massive scope of the debris problem.

Disasters will occur. It is not a matter of if, but a matter of when. The entire nation is at risk of being struck by some type of disaster at some time. The best way to deal with the outfall from these disasters is to be prepared for them …

Combating The Ramifications Of The Usa Patriot Act: The Standing Doctrine And The Judiciary’S True Role In The Separation Of Powers Scheme , Anthony Michael Stella

ExpressO

History has told that when the United States is in a state of war, laws—especially laws pertaining to individual liberty interests—will bend. During the Civil War, President Abraham Lincoln ordered a blockade of the southern ports and suspended the right of habeus corpus. Then again, during World War II, the United States Government sacrificed the freedom of many American citizens by ordering the internment of Japanese Americans on the West Coast. And most recently, during the war on terrorism, several American citizens were indefinitely detained by the military as “enemy combatants” without due process of the law. However, national security …

Doomsday: A Look At The Ethical Issues Behind The Government's Coercive Powers In Response To A Public Health Nightmare., Jacob M. Chapman

ExpressO

This article posits a hypothetical scenario in which a deadly pandemic is unleashed upon the United States and the several individuals whom appear to have a natural immunity refuse to participate in necessary research. The article then examines the possible legal and ethical approaches available for reacting to the pandemic.

The hypothetical scenario addressed in this article highlights a gap in current public health law. While various states have laws and procedures relating to quarantine and forced inoculation, these laws and procedures do not suggest whether the state may or may not coerce non-threatening individuals into participating in potentially dangerous …

Content On The Fly: The Growing Need For Regulation Of Video Content Delivered Via Cellular Telephony, Jacob M. Chapman

ExpressO

Technological advancements in the last twenty years have substantially altered the ways in which people work, communicate, and are entertained. Many of these advancements have occurred in areas generally thought to fall under the regulatory purview of the Federal Communications Commission (FCC). These advancements have included the personal computer, the internet, digital cable, direct broadcast satellites (DBS), and cellular phones. Of all these increasingly available and inexpensive technologies, perhaps the most ubiquitous is the cellular phone. Thus far, the FCC has struggled to apply its public interest mandate to the ever shifting sands of technological development with varying degrees of …

The "How" Of Enforcing The Fourteenth Amendment: How The Rehnquist Court's Treatment Of Implementation, Not Interpretation, Is The True Post-Boerne Failing, Rebecca L. Goldberg

ExpressO

This article argues that the severe limits the Rehnquist Court imposed on Congress’ power to enforce the Fourteenth Amendment did not stem primarily from the Court’s treatment of Congress’ interpretive powers in City of Boerne v. Flores, as most commentators have assumed, but rather from the Court’s treatment of Congress’ assessments regarding implementation in the cases that followed Boerne (Kimel, Garrett, Hibbs, and Lane). The article provides a new framework for assessing Congress’ power to pass a law under Section 5 of the Fourteenth Amendment – a framework that adheres, in the main, to the Court’s 14§5 doctrine in Boerne …

Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber

Faculty Scholarship

The Maryland Constitutional Law Schmooze, "An Eighteenth-Century Constitution in a Twenty-First-Century World" explores the interpretive and political challenges inherent in recourse to an ancient text for resolving political questions. Although no Essay cites Quentin Skinner, the debates between participants in the Schmooze and this Symposium mirror the debates between Skinner and his critics. Some participants insist that crucial aspects of an eighteenth-century text remain vibrant at present, that contemporary political life would be improved by more careful study of the Constitution. Others blame crucial pathologies of American politics on a combination of too careful study of and too uncritical veneration …

Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber

Faculty Scholarship

“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally …

False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber

Faculty Scholarship

Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices “when they have tried to impose intensely contested visions of the Constitution on a divided nation.” This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in …

The Third Death Of Federalism, A. Christopher Bryant

Faculty Articles and Other Publications

Federal drug laws proved a stumbling block to the Rehnquist Court's attempted federalism revival. In its final year, the Court's fragile federalism coalition splintered in a pair of cases arising under the Controlled Substances Act ("CSA"). Missing from the emerging legal literature concerning those two decisions is any substantive discussion of the Supreme Court's much earlier, ill-fated efforts to preserve both judicial enforcement of the enumerated powers doctrine and federal narcotics laws. This article fills that gap.

Ninety-odd years ago the Court arrived at the same jurisprudential juncture it now confronts. In the early decades of the twentieth century, the …

¿La Raza Latina?: Multiracial Ambivalence, Color Denial, And The Emergence Of A Tri-Ethnic Jurisprudence At The End Of The 20th Century, Tom I. Romero

Sturm College of Law: Faculty Scholarship

This article is a recent legal history concerning the complicated, inconsistent, and dramatic transformation in the jurisprudential meaning and legal consequence of race, color and ethnic categories in the last decades of the 20th century. Linking school desegregation, bilingual education, and affirmative action jurisprudence to the dramatic growth of the nation's Latina/o community in the second half of the 20th century, the article documents the reasons behind the inability of American law to understand conceptually the idea of a Latino race.

In particular, the article argues that three United States Supreme Court equality of education cases - Keyes v. School …

Introduction To The Imperial Presidency And The Consequences Of 9/11, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

An Empirical Analysis Of The Confirmation Hearings Of The Justices Of The Rehnquist Natural Court, Jason J. Czarnezki

Elisabeth Haub School of Law Faculty Publications

Despite the importance of this question, surprisingly little work has been done comparing the statements made by nominees at their confirmation hearings with their subsequent behavior on the Supreme Court. If the hearings reveal substantively valuable information about nominees' views, then we would expect to find a relationship between the Justices' statements and their judicial decisions. This Article is an initial look at that relationship. Specifically, we examine statements involving the nominees' views on stare decisis, originalism and legislative history, and also statements involving their views on the rights of criminal defendants. We then rank order the nominees' confirmation hearings …

Is Silence Sacred? The Vulnerability Of Griffin V. California In A Terrorist World, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

Part I of this Article traces the shared history of the right against self-incrimination from twelfth-century England to the mid-twentieth century. Part II examines the modern history of the privilege in the United States, from the Supreme Court's 1965 decision in Griffin to its 1999 decision in Mitchell. Part III examines the United Kingdom's modern approach to the privilege, including its re-shaping of the privilege in response to domestic terrorism. Part IV examines why the U.S. and U.K. systems, with a common history and shared values, have moved in such dramatically different directions with respect to the privilege. Part V …

Common Law Police Powers And The Rule Of Law, Steve Coughlan

Articles, Book Chapters, & Popular Press

Common law police powers have long been a source of some dispute in the Canadian criminal justice system. On the one hand, their existence is difficult to reconcile with predictability in the law, since in any individual case where a new power is created (generally referred to as use of the "ancillary powers doctrine"), it would not have been possible to know in advance that the police were actually acting legally. On the other hand the benefit for society purchased with that ambiguity is a more tailored response to the particular problem, which might also lead to better results in …

Mission Possible: Reciprocal Deference Between Domestic Regulatory Structures And The Wto, Elizabeth Trujillo

Faculty Scholarship

One of the goals of Article III of GATT is to invalidate domestic regulatory measures, including taxes and non-fiscal policies that amount to non-tariff barriers to trade (NTB) and therefore violate the principles of national treatment. While internal policies that directly discriminate between products based on nationality or origin are clearly in violation of national treatment principles, it is the facially neutral regulatory measures with protectionist and discriminatory effects that are more difficult to assess, even within transparent regulatory processes. However, with their emphasis on the likeness of the products in question, WTO panels run the risk of alienating member …

Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis

Faculty Scholarship

As license plates emblazoned with the message “Choose Life” have proliferated in twenty-four states, so too have lawsuits challenging such specialty license plates. The holdings of such cases have run the gamut, resulting in a three-way circuit split among the Fourth, Fifth, and Sixth Circuits. Analysis of the controversy up to this point has not considered an illuminating analogy: advertising space owned and operated by the government. Examining the parallels between advertising space and specialty license plates informs doctrinal analysis of the dispute, demonstrating that state legislatures may not use the current practice of individually establishing specialty license plates through …

Poverty, Inequality, And Class In The Structural Constitutional Law Course, Stephen Loffredo

Fordham Urban Law Journal

This Article argues that poverty and income inequality issues should be taught in a constitutional law course. Furthermore, it argues that these issues should not only be considered when discussing due process, equal protection, the First Amendment, but in also within the context of structural constitutional law, i.e. separation of powers and federalism.

Congress Has The Power To Enforce The Bill Of Rights Against The Federal Government: Therefore Fisa Is Constitutional And The President's Terrorist Surveillance Program Is Illegal, Wilson R. Huhn

Akron Law Faculty Publications

The principal point of this Article is that Congress has plenary authority to enforce the Bill of Rights against the federal government. Although this precept is a fundamental one, neither the Supreme Court nor legal scholars have articulated this point in clear, simple, and direct terms. The Supreme Court does not have a monopoly on the Bill of Rights. Congress, too, has constitutional authority to interpret our rights and to enforce or enlarge them as against the actions of the federal government.

Congress exercised its power to protect the constitutional rights of American citizens when it enacted the Foreign Intelligence …

Democracy Stops At My Front Door: Obstacles To Gender Equality In South Africa, Penelope Andrews

Articles & Chapters

In South Africa, post-apartheid legislation promulgated in pursuit of the constitutional commitment to equality demonstrates that the government, at least at the formal level, is committed to a comprehensive democratic framework that promotes such equality. Statutes such as the Promotion of Equality and the Prevention of Unfair Discrimination Act, the Prevention of Domestic Violence Act, and the Black Empowerment Act amongst others, attest to the commitment of such a vision. In addition, statutes such as the Recognition of Customary Marriages Act, that purport to protect women in polygamous African customary unions, suggest that the South African Parliament is deeply committed …

Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead

Journal Articles

Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The FDA …

Participatory Constitution Making In Post-Conflict States, Angela M. Banks

Faculty Publications

No abstract provided.

The State Secrets Privilege And Separation Of Powers, Amanda Frost

Scholarly Articles in Law Reviews & Journals

Since September 11, 2001, the Bush administration has repeatedly invoked the state secrets privilege in cases challenging executive conduct in the war on terror, arguing that the very subject matter of these cases must be kept secret to protect national security. The executive's recent assertion of the privilege is unusual, in that it is seeking dismissal, pre-discovery, of all challenges to the legality of specific executive branch programs, rather than asking for limits on discovery in individual cases. This essay contends that the executive's assertion of the privilege is therefore akin to a claim that the courts lack jurisdiction to …

"Big Love"'? The Recognition Of Customary Marriages In South Africa, Penelope Andrews

Articles & Chapters

This Comment contextualizes the issue of polygamous marriages within the South African constitutional paradigm, one committed unequivocally to the principle of equality. This Comment analyzes how South African law, European in origin, had to incorporate the laws and institutions of indigenous communities within the national legal framework, as part of the overall transformative legal project underway in the country since 1994. By focusing on the Recognition of Customary Marriages Act, this Comment examines such incorporation, while questioning its effect on the overall project of constitutionalism, human rights, and equality.