Law Commons^™

A Coherent Methodology For First Amendment Speech And Religion Clause Cases, Thomas R. Mccoy

Vanderbilt Law Review

It seems clear that any deliberate effort by government to impose religious orthodoxy will be held unconstitutional per se. A religiously motivated restriction on disfavored religious practices will be held to violate the Free Exercise Clause. Similarly, a religiously motivated attempt to promote or subsidize favored religious practices will be held to violate the Establishment Clause. These complimentary restrictions are now so ingrained in our political culture that the legislatures rarely transgress them.

The problem that has bedeviled the Supreme Court for many years is that government regulatory schemes and benefit programs designed to serve purely nonreligious objectives inevitably impact …

Immigration Crisis In Federalism: A Comparison Of The United States And Canada, Kevin Tessier

Indiana Journal of Global Legal Studies

No abstract provided.

Constitutional Analysis Of Indiana's Controlled Substance Excise Tax, F. Anthony Paganelli

Indiana Law Journal

No abstract provided.

"Neither Force Nor Will", Lewis H. Larue

Scholarly Articles

Not available.

The Fourth Amendment's Forcing Of Flawed Choices: Giving Content To Freedom For Residents Of Public Housing - Pratt V. Chicago Housing Authority, 848 F. Supp. 792 (N.D. Ill. 1994), Erika George

Faculty Scholarship

In April 1994, the United States District Court for the Northern District of Illinois issued a preliminary injunction halting the "Operation Clean Sweep" program operated by the Chicago Housing Authority ("CHA"). ³ The court did so over the protestations of some of those most affected, the public housing residents subjected to the CHA's searches. ⁴ Pratt v. Chicago Housing Authority⁵ attracted the attention of the nation and President William Clinton, who requested that the Justice Department investigate ways to strengthen security in public housing without offending the Fourth and Fourteenth Amendments of the United States Constitution.

Civil libertarians applauded …

Alaska Supreme Court And Court Of Appeals Year In Review 1994, Laura E. Fahey, Steven D. Moore, James P. Ursomarso

Alaska Law Review

No abstract provided.

Welcome To The Last Frontier, Professor Gardner: Alaska’S Independent Approach To State Constitutional Interpretation, Ronald L. Nelson

Alaska Law Review

No abstract provided.

Exclusion To Emancipation: A Comparative Analysis Of Women's Citizenship In Australia And The United States 1869-1921, Linda J. Kirk

West Virginia Law Review

No abstract provided.

Is Moral Relativism A Constitutional Command?, Steven G. Gey

Indiana Law Journal

No abstract provided.

Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder

Journal Articles

This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning for all …

Outpatient Civil Commitment In North Carolina: Constitutional And Policy Concerns, Erika F. King

Law and Contemporary Problems

Outpatient commitment of the mentally ill is court-ordered treatment in the community and is usually characterized by short, recurring visits to a mental health clinic that provides treatment such as medication, individual or group therapy, day or part-day activities or supervision of living arrangements. The history and design of the North Carolina preventive commitment scheme and constitutional difficulties with this statute are discussed.

Old Wine In New Bottles: The Constitutional Status Of Unconstitutional Speech, Mark A. Graber

Vanderbilt Law Review

This Article explores whether contemporary advocates of restrictions on bigoted expression have more in common with contemporary advocates of broad First Amendment rights or with past censors. The critical theorists who would ban some hate speech rely heavily on the equal citizenship principles that radical civil libertarians believe justify almost absolute speech rights. Past censors, however, also relied heavily on principles that libertarians in their generation thought justified almost absolute speech rights. The First Amendment, past and present censors argue, does not fully protect speech in- consistent with what they believe are basic constitutional values. This claim repudiates a basic …

Telling Stories About Constitutional Law, Lewis H. Larue

Scholarly Articles

Not available.

The Constitutional Development Of Religious Freedom In Spain: An Historical Analysis, Daniel B. Montserrat

Florida State University Journal of Transnational Law & Policy

Religious freedom has always constituted a problem in Spain. It can be said that over the centuries, there has only existed intolerance and even on several occasions, persecution. Clearly, the times in which respect and peaceful coexistence occurred in Spain among the three principal religions were limited and fleeting. Unfortunately, even Spanish constitutional history is replete with examples of religious intolerance. From the Cddiz Constitution of 1808, liberal in its politics, but tremendously repressive with respect to religion up until the present day, there have been scarcely twentyfive years of "religious freedom." Recalling the period prior to the first constitution, …

The Ultimate Standard: Qualified Immunity In The Age Of Constitutional Balancing Tests, 81 Iowa L. Rev. 261 (1995), Alan K. Chen

Sturm College of Law: Faculty Scholarship

This article represents a major departure from existing academic literature by proposing a new way of looking at how two important areas of constitutional doctrine affect each other. Through the lens of the jurisprudential dilemma over framing law as bright-line rules or open-ended standards, the article examines the confluence of public officials' immunity law and substantive constitutional law. Though public officials may be sued for damages when they violate constitutional rights, the law of immunity sometimes protects them from liability. The law determining officials' immunity from constitutional torts may be defined by a rule or a standard. Most officials are …

The Constitutional Court: A Bulgarian Response To Obsolescent Law, David A. Levy

University of Miami International and Comparative Law Review

No abstract provided.

The Plain Feel Doctrine In Washington: An Opportunity To Provide Greater Protections Of Privacy To Citizens Of This State, Laura T. Bradley

Seattle University Law Review

This Comment argues that Washington should return to an independent analysis of search and seizure doctrine under article I, section 7 of the state constitution and reject the admission of contraband seized during the course of a pat-down frisk. The decisions in Hudson and Dickerson have established an unnecessary and unworkable standard, and involve an increased invasion of personal privacy without the counter-balancing need to protect the safety of others. The plain feel doctrine as announced in Dickerson and Hudson developed from two well-established concepts in search and seizure law-the Terry frisk of persons to discover weapons and the plain …

Planned Constitution Never Got Written, But Israel Still Got Constitutional Law, Marcia R. Gelpe

Faculty Scholarship

Israel's development of constitutional law without a written constitution presents a fascinating picture of how a system, unable to develop a constitution in the usual manner, has developed one in another manner. It shows how innovative lawmaking can be - and sometimes must be - to maintain a democratic political system.

The Constitutional Dimension Of A National Products Liability Statute Of Repose, Stephen J. Werber

Law Faculty Articles and Essays

Constitutional issues arise in regard to many aspects of tort and products liability reform legislation. This article argues that statutes of repose are unconstitutional, with emphasis on open courts or right to remedy (open courts) and equal protection provisions. These issues reflect economic concerns at both federal and state legislative levels that seek to advance strongly perceived public policy. These concerns, in turn, affect substantial substantive rights. Freedom from personal injury, the right to life and safety, reflects more than the mere economic concerns of either the injured party or the product manufacturer. The ability to seek redress for such …

C & A Carbone V. Clarkstown: A Wake-Up Call For The Dormant Commerce Clause, Rachel D. Baker

Duke Environmental Law & Policy Forum

Introduction Garbage collection, transportation, and disposal have historically been the responsibility of individual towns and cities in the United States. 1 However, stringent environmental regulations, declining landfill capacity, and the implementation of costly source reduction and recycling programs have greatly increased the costs of waste management borne by towns. 2 For the past two decades, many local governments have relied on "flow control" ordinances to finance their solid waste management activities. 3 These ordinances designate where municipal solid waste generated within the community must be managed, stored, or disposed. 4 Recently, in C & A Carbone, Inc. v. Town of …

Is There A Doctrine In The House? Welfare Reform And The Unconstitutional Conditions Doctrine, Jonathan Romberg

Fordham Urban Law Journal

This Article proposes that courts should subject unconstitutional conditions cases to intermediate scrutiny rather than presuming that a conditioned benefit is either valid or invalid based on its formal attributes. In conducting intermediate scrutiny, courts should consider: (i) the degree of equality or neutrality demanded by the underlying constitutional right; (ii) the importance of the benefit to the recipient; (iii) the germaneness of the condition to the reason the government may legitimately deny the benefit in the absence of the condition, and thus whether the government is attempting to use its economic and regulatory powers to gain leverage over a …

Note: New York City's Restrictive Zoning Of Adult Businesses: A Constitutional Analysis, Rachel Simon

Fordham Urban Law Journal

Part I explores the adult pornography industry in New York City and the constitutional framework developed by both federal and New York State courts to regulate non-obscene pornographic expression. Part II analyzes the City's Adult Zoning Resolution in light of decisions of the New York State Court of Appeals, the United States Supreme Court, and various federal district and circuit courts. Part III proposes changes that will increase the probability that the City's Adult Zoning Resolution will survive constitutional challenges. This Note concludes that although the current version of the City's Adult Zoning Resolution infringes unconstitutionally on adult business owners' …

Federal Enforcement Of Civil Rights During The First Reconstruction, Robert J. Kaczorowski

Fordham Urban Law Journal

This essay recounts the heroic efforts of federal legal officers and judges to enforce citizens' rights during the 1870s. Part I sets forth the historical events giving rise to the enforcement effort of the Grant Administration. Part II details the problems which the federal executive branch faced when it aggressively prosecuted civil rights violations. Part III details the problems which the federal judiciary faced in administering the civil rights prosecutions brought by the executive branch. Part IV details the national political problems that eventually ended effective enforcement of federal civil rights laws. This Essay concludes that, notwithstanding the problems faced …

Dunwody Distinguished Lecture In Law: The Values Of Federalism, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

The Twenty-First Wisdom, Paul D. Carrington

Faculty Scholarship

No abstract provided.

The Last Centrifugal Force, Robert F. Nagel

Publications

No abstract provided.

Regulating Choice: A Constitutional Law Response To Professor John A. Robertson's Children Of Choice, Ann Maclean Massie

Washington and Lee Law Review

No abstract provided.

Market Causes Of Constitutional Values, Christopher T. Wonnell

Case Western Reserve Law Review

No abstract provided.

The Constitutionality Of Student-Led Prayer At Public School Graduation Ceremonies, Johanna J. Raimond

Vanderbilt Law Review

The Supreme Court consistently has held that it is unconstitutional to pray in public school classrooms.' Until 1992, however, the Court had never addressed the issue of prayer at a public school graduation ceremony. Prior to the Court's ruling, public school districts across the country regularly included a prayer of some variety in their graduation programs. In June 1992, the Supreme Court finally addressed this longstanding practice. In Lee v. Weisman, the Court held that the Providence, Rhode Island school district violated the Establishment Clause of the First Amendment by permitting a rabbi to offer an invocation and benediction at …

Parental Rights Vs. Best Interests Of The Child: A False Dichotomy In The Context Of Adoption, Annette R. Appell, Bruce A. Boyer

Duke Journal of Gender Law & Policy

I. Introduction: Identifying the Controversy The mythology of adoption involves a scenario in which a teenage girl gets pregnant, and neither she nor the father is ready to raise a child. Upon birth, these young parents voluntarily relinquish the baby to an upwardly mobile couple who have been waiting years to adopt. The adoptive parents become, in essence, the birth parents to the baby who grows up happy and well-adjusted. The birth parents vanish from the picture, perhaps eventually marrying and having additional children. No one looks back. But what happens to this myth when the birth mother changes her …