Law Commons^™

The Democratic Public Domain: Reconnecting The Modern First Amendment And The Original Progress Clause (A.K.A. Copyright And Patent Clause), Malla Pollack

ExpressO

If the Progress Clause, a.k.a. the Patent and Copyright Clause, of the U.S. Constitution had been construed when its original meaning was still obvious, United States law would be far different. In this area at least, the Drafters’ Constitution was much less aristocratic than the modern (mis)reading. The original meaning of the Progress Clause, furthermore, should have stimulated a more communitarian First Amendment, the type of First Amendment currently being suggested by leading First Amendment scholars such as Jack Balkin.

When Equality Leaves Everyone Worse Off: The Problem Of Leveling Down In Equality Law, Deborah L. Brake

ExpressO

Existing case law and legal scholarship assume that inequality may be remedied in one of two ways: improving the lot of the disfavored group to match that of the most favored group, or lowering the level of treatment for the favored group until their members fare as badly as the persons complaining of inequality. The term “leveling down” refers to the latter response. The 1971 case of Palmer v. Thompson provides the classic example of the typical judicial response to leveling down: the Supreme Court accepted the decision of Jackson, Mississippi, to close its swimming pools, rather than operate them …

Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry

ExpressO

Using the Supreme Court's decision last Term in Chavez v. Martinez as a launching pad, this article reveals and addresses fundamental tensions in constitutional interpretation, the law of interrogation, and civil rights litigation. First, this article highlights the importance of remedies to the definition of constitutional rights, which compels us to jettison the idea of prophylactic rules and accept Congress's role in constitutional interpretation. Armed with these insights, the article next considers the law of coercive interrogation. I explain why the privilege against self-incrimination is more than a trial right, and I redefine the central holding of Miranda to take …

Exporting The Constitution, Mark D. Rosen

All Faculty Scholarship

If a foreign government enacts a law that would be unconstitutional if passed in the United States, can a foreign judgment based on that law be enforced in an American court? For example, can an American court enforce an English judgment based on English defamation law, which is more pro-plaintiff than the First Amendment permits American law to be? The same issue was presented by recent litigation involving Yahoo!, where a federal district court considered whether it could enforce a French judgment based on a French law that regulated hate speech more broadly than the First American allows American polities …

Grutter Or Otherwise: Racial Preferences And Higher Education, Larry Alexander, Maimon Schwarzschild

University of San Diego Public Law and Legal Theory Research Paper Series

Last year's Supreme Court decisions on affirmative action, Gratz and Grutter, are dubious as constitutional law, bringing to mind what John Hart Ely said about Roe v. Wade: "[I]t is not constitutional law, and gives almost no sense of an obligation to try to be." There was at best a cosmetic difference between the University of Michigan undergraduate school's crude "20-points-extra for minority applicants" (which the Court struck down) and the Law School's "holistic" and disingenuous preferences (which the Court upheld). The idea that the Law School has a "compelling state interest" in these racial and ethnic preferences is utterly …

Abstinence-Only Adolescent Education: Ineffective, Unpopular And Unconstitutional, James J. Mcgrath

ExpressO

This article examines the recent changes in the funding of “abstinence only” educational programs that attempt to reduce the incidence of teen pregnancy and sexually transmitted diseases. Although funding for these programs was previously ruled to be facially constitutional, this is no longer the case as their lack of efficacy for their stated purpose has been exposed. Newer programs are in direct violation of unconstitutional conditions doctrine, and none of these programs address a significant segment of the student population, lesbian and gay students. My article addresses this oversight as dangerous public health policy as well as a potential constitutional …

Entrapment And The Problem Of Deterring Police Misconduct, Dru Stevenson

ExpressO

Many the states currently use a version of the entrapment defense known as the “objective test,” which focuses solely on the extent of police overreaching in the case, and seeks to deter police misconduct by acquitting the defendant. Acquitting defendants as a means of deterring undercover police misconduct, however, is a public policy fraught with problems, and these problems have not been adequately addressed in the literature to date. This article applies the insights of modern deterrence theory to wrongful activity by police in undercover operations. In doing so, three general problems emerge. First, the objective test relies on an …

Procedural Justice, Lawrence B. Solum

ExpressO

The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of …

Was The Right To Keep And Bear Arms Conditioned On Service In An Organized Militia?, Randy E. Barnett

ExpressO

Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a “collective right” of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With the demise of organized militias, they contend, the right lost any relevance to constitutional adjudication. In this essay, I evaluate the case made for this historical claim by Richard …

How Patriotic Can The Opposition Be? The Constitutional Role Of The Minority Party In Times Of Peace And During National Crises, Yigal Mersel

ExpressO

This paper seeks to address the constitutional status of the minority party – the opposition – within the parliament and its interaction with the majority. It does so from both a political science and law perspective, and focuses on the different types of oppositions in various regimes and their interactions with the majority. It quests to the limits and scope of oppositional behavior within parliaments. The paper focuses especially on the role of the opposition during times of national crises and analyses the constitutional problem of opposition loyalty to the majority in these times while suggesting a model that limits …

Enemies Foreign And Domestic: A Historical Look At The Use Of Military Commissions By The United States And The Case For Using Them Against American Citizens, James T. Barnett

ExpressO

An historical look at the use of Military Commissions by the United States of America. This article examines the constitutional powers to use Military Commissions as well as the limitations on such commissions.

It also examines the use of these commissions against American citizens and argues that they are proper in certain circumstances. The limitations set out by the Supreme Court are eroded to the point of being void.

The article goes on to examine the cases of John Walker Lindh and Yasser Hamdi to show that Military Commissions are the proper forum for such cases.

Back To Bakke: Defining The Strict Scrutiny Test For Affirmative Action Policies Aimed At Achieving Diversity In The Classroom, Leslie Y. Garfield

ExpressO

Last summer, the United State Supreme Court, in Grutter v. Bollinger and Gratz v. Bollinger, reviewed constitutional challenges to two affirmative action admission policies. These cases marked the first time in 25 years that the Court reviewed this particular issue. A close reading of these cases confirms that the Court will evaluate Equal Protection challenges to affirmative action programs aimed at improving diversity in the classroom differently than challenges to programs aimed at achieving racial equality in the workplace. This article interprets the Court’s analysis of affirmative action admission policies and offers a definition for a new strict scrutiny test …

On The Freedom To Associate Or Not To Associate With Others, Thomas Kleven

ExpressO

This article discusses the freedom to associate or not to associate with others. Associational issues are pervasive in the law, and arise on both an individual and a societal level. Within societies one party may want to have an association with another who doesn’t want the association, or parties may want to have an association that others find objectionable or may want not to have an association that others favor. In all of these situations society as a whole must decide whether to empower one party to impose an unwanted relationship on others, and whether to prohibit associations that parties …

The Right To Trial By Jury In Environmental Cost-Recovery And Contribution Actions: United States V. England, Jonathan L. Mayes

ExpressO

No abstract provided.

Introduction: Ancients, Moderns And Guns, Mark A. Graber

Faculty Scholarship

No abstract provided.

The Foggy Road For Evaluating Punitive Damages: Lifting The Haze From The Bmw/State Farm Guideposts, Steven L. Chanenson, John Y. Gotanda

Working Paper Series

In light of increasing punitive damages awards, the United States Supreme Court formulated criteria for evaluating whether a punitive damages award is so unreasonably large that it violates substantive due process. Unfortunately, these "guideposts," which were first erected in BMW v. Gore and applied last term in State Farm v. Campbell, are difficult to use and have resulted in inconsistent decisions. Indeed, Justice Scalia stated that they "mark a road to nowhere." The authors argue that the problems with the guideposts can be fixed by refining the third guidepost, which compares the punitive damages award to the criminal (or civil) …

Prison Reform Revisited: The Unfinished Agenda, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

Prison Reform Revisited: The Unfinished Agenda, which was held at Pace Law School from October 16-18, 2003, was a remarkable event. At this conference--a summit really--leading academics, attorneys, prison reformers, judges, prison officials and international prison reformers gathered at Pace Law School and the New York State Judicial Center in White Plains, New York to discuss how to advance the cause of prison reform in the U.S. This issue of the Pace Law Review is devoted to the papers presented in connection with that important conference.

The Supreme Court And Congress's Power To Enforce Constitutional Rights: An Overlooked Moral Anomaly, Robert J. Kaczorowski

Fordham Law Review

No abstract provided.

A Sheep In Wolf's Clothing: Why The Debate Surrounding Comparative Constitutional Law Is Spectacularly Ordinary, Matthew S. Raalf

Fordham Law Review

No abstract provided.

Gender, Negotiating Gender And (Free And Equal) Citizenship: The Place Of Associations, Linda C. Mcclain

Fordham Law Review

No abstract provided.

Jurisdictional Line-Drawing In A Time When So Much Litigation Is "Related To" Bankruptcy: A Practical And Constitutional Solution, Duane Loft

Fordham Law Review

No abstract provided.

Gender, Justice And Gender: An Unfinished Debate, Susan Moller Okin

Fordham Law Review

No abstract provided.

Adjusting Rights And Balancing Values, T. M. Scanlon

Fordham Law Review

No abstract provided.

The Limits On Congress's Authority To Investigate The President, William P. Marshall

Faculty Publications

No abstract provided.

The First Amendment, The Public-Private Distinction, And Nongovernmental Suppression Of Wartime Political Debate, Gregory P. Magarian

Scholarship@WashULaw

This article proposes a major expansion in the scope of First Amendment law and offers a fresh way of understanding the public-private distinction. It contends that the Supreme Court should invoke the First Amendment to enjoin nongovernmental behavior that substantially impedes public political debate during times of war and national emergency. As the article explains, the present campaign against international terrorism has seen employers, property owners, and media corporations restrict political discussion more frequently and aggressively than the government has. If political debate is the most important object of First Amendment protection - which the article contends it is - …

Guilty Without Charge: Assessing The Due Process Rights Of Unindicted Co-Conspirators, Ira Robbins

Scholarly Articles in Law Reviews & Journals

The grand jury practice of naming individuals as unindicted co-conspirators routinely results in injury to reputations,lost employment opportunities, and a practical inability to run for public office. Yet, because these individuals are not parties to a criminal trial, they have neither the right to present evidence nor the opportunity to clear their names. Thus, Professor Robbins argues that the practice violates the Fifth Amendment guarantee that “[n]o person shall . . . be deprived of life, liberty, or property, without due process of law[.]” While prosecutors may offer many justifications to support the practice of naming unindicted co-conspirators, these reasons …

False Campaign Speech And The First Amendment, William P. Marshall

Faculty Publications

No abstract provided.

Separation, Neutrality, And Clergy Liability For Sexual Misconduct, William P. Marshall

Faculty Publications

No abstract provided.

Better Lucky Than Good, Neal Devins

Faculty Publications

No abstract provided.

Assessing The Constitutionality Of Laws That Are Both Content Based And Content Neutral, Wilson R. Huhn

Akron Law Faculty Publications

Such a multi-faceted analysis cannot be conflated into two dimensions. Whatever the allure of absolute doctrines, it is just too simple to declare expression "protected" or "unprotected" or to proclaim a regulation "content-based" or "content-neutral." John Paul Stevens (1992)

American legal doctrine evolved from a formalistic categorical approach that dominated legal thinking during the nineteenth century to a realistic balancing approach that developed over the course of the twentieth century. A similar process is now occurring in the constitutional doctrine governing freedom of expression-a process that may culminate in the adoption of what United States Supreme Court Justice John Paul …