Constitutional Law Commons^™

The Gap In Canadian Police Powers: Canada Needs 'Public Order Policing' Legislation, W. Wesley Pue, Robert Diab

All Faculty Publications

The authors identify a gap in Canadian policing law. Police have neither common law nor statutory authority to undertake the sorts of public order policing measures that are thought to be essential to securing large public events, such as Vancouver's 2010 Olympics. The paper argues for the adoption of a Public Order Policing Act designed to confer the necessary powers and ensure their operation in a manner that respects constitutional law and fundamental civil liberties. Revised and published as W. Wesley Pue & Robert Diab “The Gap in Canadian Police Powers: Canada Needs 'Public Order Policing' Legislation” (2010) 28 Windsor …

Unshackling Speech (Book Review), David L. Lange

Faculty Scholarship

Reviewing, Brian C. Anderson and Adam D. Thierer, A Manifesto for Media Freedom (2008))

An Open Letter From Heaven To Barack Obama, F. Michael Higginbotham

All Faculty Scholarship

Since the passing of A. Leon Higginbotham, Jr. in 1998, many have wondered what the award winning author, longest-serving black federal judge, first black to head a federal regulatory agency, recipient of the Spingarn Medal and the Congressional Medal of Freedom, and author of the famous “Open Letter to Clarence Thomas” would think of the state of race relations today. Appointed to the Federal Trade Commission in 1962, Higginbotham served in several powerful federal positions including Vice-Chairman of the National Commission on the Causes and Prevention of Violence, member of the first wiretap surveillance court, and chief judge of a …

The Constitutional Future Of Race-Neutral Efforts To Promote Diversity And Avoid Racial Isolation In Our Elementary And Secondary Schools, Kimberly J. Robinson

Law Faculty Publications

In 2007, the U.S. Supreme Court ruled in Parents Involved in Community Schools v. Seattle School District No. 1 that the racial classifications used by school districts in Seattle and Louisville to create diverse schools were unconstitutional. Justice Kennedy provided the deciding vote but also noted that school districts could pursue diversity and avoid racial isolation through race-neutral alternatives. He asserted that it was unlikely that race-neutral alternatives would be subject to strict scrutiny but articulated no rationale for this assertion. This Article argues that, after Parents Involved, school districts will focus on race-neutral efforts to create diverse schools …

Abolishing The Time Tax On Voting, Elora Mukherjee

Faculty Scholarship

A “time tax” is a government policy or practice that forces one citizen to pay more in time to vote compared with her fellow citizens. While few have noticed the scope of the problem, data indicate that, due primarily to long lines, hundreds of thousands if not millions of voters are routinely unable to vote in national elections as a result of the time tax, and that the problem disproportionately affects minority voters and voters in the South. This Article documents the problem and offers a roadmap for legal and political strategies for solving it. The Article uses as a …

Out Of The Shadows: Preventive Detention, Suspected Terrorists, And War, David Cole

Georgetown Law Faculty Publications and Other Works

This article examines the appropriate and inappropriate role of "preventive detention" in responding to terrorist threats. It offers a constitutional jurisprudence of preventive detention, maintaining that absent a showing that dangerous behaviour cannot be addressed through criminal prosecution, preventive detention is unconstitutional. But criminal prosecution is not always a realistic option, and in those circumstances, preventive detention, carefully circumscribed and meticulously safeguarded by procedural protections, may be permissible. Familiar examples of accepted preventive detention regimes include civil commitment of dangerous persons who because of a mental disability cannot be held criminally responsible, and detention of enemy soldiers in a traditional …

The Supreme Courts: Did September 11th Accelerate Their Sanctioning The Constitutionality Of Criminalizing Suspicion?, Dannye Holley

The University of New Hampshire Law Review

“This article evaluates whether the nation‘s highest appellate courts have, on balance, been more willing to acquiesce to criminalization based on suspicion since the attacks on the World Trade Center seven years ago. The article seeks to accomplish this evaluation by comparing decisions of the United States and state supreme courts in the six years prior to September 2001 with decisions in the six years following the terrorist attack— have the courts with the greatest authority to sanction the criminalization of suspicion been more willing to do just that? Such a post-September 11th trend would be significant because, despite the …

Shibboleths And Ceballos. Eroding Constitutional Rights Through Pseudocommunication, Susan Stuart

BYU Law Review

No abstract provided.

Does Heller Protect A Right To Carry Guns Outside The Home?, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

How The United States Government Sacrifices Athletes' Constitutional Rights In The Pursuit Of National Prestige, Dionne L. Koller

BYU Law Review

No abstract provided.

The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum

Michigan Law Review

This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional …

A Narrow Path To Diversity: The Constitutionality Of Rezoning Plans And Strategic Site Selection Of Schools After Parents Involved, Steven T. Collis

Michigan Law Review

Justice Kennedy's concurrence in Parents Involved in Community Schools v. Seattle School District Number 1 raised an important and timely constitutional issue: whether the Constitution permits K-12 public school districts not under existing desegregation orders to use site selection of new schools or rezoning plans to achieve racial diversity. Numerous scholars and journalists have interpreted Justice Kennedy's concurrence as explicitly answering the question in the affirmative. This Note argues that the opposite is true. Justice Kennedy's past jurisprudence, as well as his language in Parents Involved, favors the use of strict scrutiny. Indeed, in Parents Involved, Justice Kennedy …

Judicial Decision-Making, Social Science Evidence, And Equal Educational Opportunity: Uneasy Relations And Uncertain Futures, Michael Heise

Cornell Law Faculty Publications

No abstract provided.

An Assessment Of The Law School Climate For Glbt Students, Kelly Strader, Brietta R. Clark, Robin C. Ingli, Elizabeth Kransberger, Lawrence C. Levine, William D. Perez

Journal of Legal Education

No abstract provided.

An "Unintended Consequence": Dred Scott Reinterpreted, Sam Erman

Michigan Law Review

Austin Allen's monograph marks the 150th anniversary of the decision in Dred Scott v. Sandford with a revisionist interpretation of that oft-examined case. Many scholars have portrayed the case as a proslavery decision that fanned sectional fires. After all, the Court held that blacks were not U.S. citizens and that Congress was impotent to bar slavery in U.S. territories. Allen, by contrast, understands the case primarily as a judicial attempt to rationalize federal commerce and slavery jurisprudences. Part I argues that this ambitious reinterpretation enriches, but does not topple, existing Dred Scott historiography. In the case of the Court's citizenship …

Torture, With Apologies, Thomas P. Crocker

Faculty Publications

No abstract provided.

Misinterpreting "Sounds Of Silence": Why Courts Should Not "Imply" Congressional Preclusion Of § 1983 Constitutional Claims, Rosalie Berger Levinson

Law Faculty Publications

Despite the clear text of 42 U.S.C. § 1983, its promise to protect constitutional rights has been obfuscated by the theory that Congress, by enacting civil rights laws, has “impliedly” foreclosed the historic use of § 1983 to vindicate constitutional wrongdoing. Increasingly, plaintiffs are being denied their right to vindicate constitutional wrongdoing, either because the new “preempting” federal statute does not trigger individual liability or because it makes institutional liability more difficult to establish.

It is counterintuitive to believe that Congress, in an attempt to expand equality or due process, intended to cut off existing remedies for constitutional violations. Nonetheless, …

10 Years Out Of Step & Out Of Line: Florida’S Statutory Ban Of “Lesbi-Gay Adoption” Violates The Adoption And Safe Families Act Of 1997 (Asfa), Cynthia G. Hawkins-León, Anesha Worthy

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Is Nominal Use An Answer To The Free Speech & Right Of Publicity Quandary?: Lessons From America’S National Pastime, Raymond Shih Ray Ku

Faculty Publications

No abstract provided.

Video Evidence And Summary Judgment: The Procedure Of Scott V. Harris, Howard Wasserman

Faculty Publications

In Scott v. Harris (2007), the Supreme Court granted summary judgment on a Fourth Amendment excessive-force claim brought by a motorist injured when a pursuing law-enforcement officer terminated a high-speed pursuit by bumping the plaintiff's car. The Court relied almost exclusively on a video of the chase captured from the officer's dash-mounted camera and disregarded witness testimony that contradicted the video. In granting summary judgment in this circumstance, the Court fell sway to the myth of video evidence as able to speak for itself, as an objective, unambiguous, and singularly accurate depiction of real-world events, not subject to any interpretation …

A Constitutional Analysis Of Parents Involved In Community Schools V. Seattle School District No. 1 And Voluntary School Integration Policies, Angelo N. Ancheta

Faculty Publications

On June 28, 2007, a sharply divided United States Supreme Court invalidated student assignment plans in Seattle, Washington and Louisville, Kentucky that were designed to promote racial diversity and to address racial isolation in K-12 education. By a 5-to-4 vote in Parents Involved in Community Schools v. Seattle School District No. I and McFarland v. Jefferson County Board of Education, the Court struck down voluntary integration plans under the "strict scrutiny" standard applied to race-conscious policies challenged under the Equal Protection Clause of the Fourteenth Amendment, and ruled that the plans were not narrowly tailored to the interests asserted by …

State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller

Faculty Scholarship

This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a …

Reflections On Justice Kennedy's Opinion In Parents Involved: Why Fifty Years Of Experience Shows Kennedy Is Right, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Discriminatory Pay And Title Vii: Filing A Timely Claim, 41 J. Marshall L. Rev. 325 (2008), Megan E. Mowrey

UIC Law Review

No abstract provided.

Parents Involved And The Meaning Of Brown: An Old Debate Renewed, Jonathan L. Entin

Faculty Publications

In Parents Involved in Community Schools v. Seattle School District No. 1 the Supreme Court debated the meaning of Brown v. Board of Education. This essay, prepared for a symposium on Parents Involved, traces the roots of the debate between color-blindness and anti-subordination to Brown itself and efforts to desegregate public schools in the wake of that decision but shows that the debate goes back at least as far as the tensions reflected in the first Justice Harlan's celebrated dissent in Plessy v. Ferguson.

Implementing A New City Charter: Thoughts On My Tenure As Corporation Counsel In A Time Of Transition, O. Peter Sherwood

NYLS Law Review

No abstract provided.

The Death Penalty In America: Riding The Trojan Horse Of The Civil War, Michael S. Brazao

The Modern American

No abstract provided.

No Compensation For Slave Traders: Some Implications, 14 Tex. Wesleyan L. Rev. 289 (2008), Allen R. Kamp

UIC Law Open Access Faculty Scholarship

No abstract provided.

Lincoln At 200: On Lincoln's Statesmanship, Dred Scott And Constitutional Evil, Harry F. Tepker

Faculty Articles

No abstract provided.

Ritual, Emotion, And Political Belief: The Search For The Constitutional Limit To Patriotic Education In Public Schools, Brent T. White

Georgia Law Review

Young children across America begin the school day with ritualized expressions of loyalty to the United States. Relying upon evidence from the cognitive and neurosciences, this Article argues that such patriotic rituals embed patriotic predispositions in children's unconscious at a time when they are especially vulnerable to emotional manipulation. These patriotic predispositions in turn sharply constrain children's future conceptions of political reality and shape their political beliefs. Additionally, by conditioning the same symbolic attachments in the vast majority of Americans, ritualized patriotic education contributes to the manipulation of the public by public officials, legitimizes anti-democratic aspects of the American system, …