Constitutional Law Commons^™

"Closet Case": Boy Scouts Of America V. Dale And The Reinforcement Of Gay, Lesbian, Bisexual, And Transgender Invisibility, Darren L. Hutchinson

Faculty Articles

This Article argues that the Supreme Courts decision in Boy Scouts of America v. Dale misapplies and ignores controlling First Amendment precedent and incorrectly dermes "sexual identity" as a clinical or biological imposition that exists apart from expression or speech. This Article provides a doctrinal alternative to Dale that would protect vital interests in both equality and liberty and that would not condition, as does Dale, sexual "equality" upon the silencing of gay, lesbian, bisexual, and transgender individuals.

Turning Section 1983'S Protection Of Civil Rights Into An Attractive Nuisance: Extra-Textual Barriers To Municipal Liability Under Monell, Brian J. Serr

Georgia Law Review

This essay addresses the problem of "Making Government Pay" from a different perspective than Professor Levinson's article.1 Instead of focusing on social and economic barriers to deterrence and corrective justice, this essay will focus on the arbitrary legal barriers that the Supreme Court has placed between a constitutionally injured citizen and the municipal treasury. These legal barriers are more fairly attributable to the Supreme Court than to Congress because the barriers to establishing municipal liability under the Court's § 1983 jurisprudence are hardly self-evident from the statutory text of § 1983, nor are those barriers readily inferrable from that text. …

Afterword, Marshall S. Shapo

Georgia Law Review

It is a great pleasure to comment on these papers on a subject that has fascinated me since the beginning of my teaching career. My observations will no doubt reflect the roots of my thinking in an article I wrote on the subject in 1965' and other early publications, and, doubtless, my relative ignorance of the immense amount of case law that has flowed from courts since the mid-sixties. However, informed by a little independent study and refreshed by the commentaries, I venture a few somewhat angular thoughts. They do not" in any way pretend to be exhaustive with respect …

Corrective Justice And Constitutional Torts, Bernard P. Dauenhauer, Michael L. Wells

Georgia Law Review

Tort liability in the private realm may be understood both as "an instrument aimed... at deterrence... [and] a way of achieving corrective justice between the parties."' Following the common law model, the Supreme Court has borrowed this normative framework for constitutional torts, ruling that the aims of liability for damages are to vindicate constitutional rights and to deter constitutional violations. A recent article by Daryl Levinson takes issue vith this approach. Levinson argues that the superficial similarities between public torts and private torts conceal real differences, to which neither the Court nor scholars have paid adequate attention. The main point …

Section 1983: Agent Of Peace Or Vehicle Of Violence Against Children?, Susan H. Bitensky

Oklahoma Law Review

No abstract provided.

The Privatization Of The Civil Commitment Process And The State Action Doctrine: Have The Mentally Ill Been Systematically Stripped Of Their Fourteenth Amendment Rights?, William Brooks

Scholarly Works

No abstract provided.

The Ideology Of Judging And The First Amendment In Judicial Election Campaigns, W. Bradley Wendel

Cornell Law Faculty Publications

No abstract provided.

Stopping A Moving Target, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.

Racial Profiling And Whren: Searching For Objective Evidence Of The Fourth Amendment On The Nation's Roads, Alberto B. Lopez

Kentucky Law Journal

No abstract provided.

A Case Of Unconstitutional Immigration: The Importation Of England's National Curriculum To The United States, Jaime S. Boutwell

Vanderbilt Journal of Transnational Law

The decline in the quality of the American educational system continues to spawn debate and criticism across the nation. Despite many suggestions and arguments on how to improve American schools, such as voucher systems, smaller class size, and higher teacher qualifications, the concern, while deeply felt, appears to be empty rhetoric. Teachers' low salaries, the disparity in funding among schools, and the lack of parent and community involvement demonstrate America's apathy towards education reform. To effectuate meaningful changes in education, American communities must reach consensus on education's purpose and importance.

The failure of schools requires America to take action. State …

Restricting Hate Speech Against Private Figures: Lessons In Power-Based Censorship From Defamation Law, Victor C. Romero

Faculty Scholarship

This article examines the debate between those who favor greater protection for minorities vulnerable to hate speech and First Amendment absolutists who are skeptical of any burdens on pure speech. The author also provides another perspective on the debate by highlighting the "public/private figure" distinction as an area within First Amendment law that acknowledges differences in power, a construct anti-hate speech advocates should use to further their cause. Specifically, the author places the "public/private figure" division in a theoretical and historical context and then provides empirical support for the thesis that whites enjoy a more prominent societal role and greater …

Racial Profiling: Driving While Mexican And Affirmative Action, Victor C. Romero

Faculty Scholarship

This Essay will focus on "racial profiling" not just in the way people think about the term - that is, with respect to stopping motorists for traffic violations based solely on their race, so-called "Driving While Mexican" or "Driving While Black" - but also in the context of "affirmative action - namely, using race as a factor in employment and educational decisions. More broadly, then, I want us to think of "racial profiling" as simply "the use of race to develop an understanding of an individual" which moves us slightly away from more pejorative notions of the phrase that have …

'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker

Articles

With the narrowing of Congress' Article I power to regulate interstate commerce and to authorize private suits against states, Section Five of the Fourteenth Amendment provides Congress with an increasingly important alternative source of power to regulate and police state conduct. However, in City of Boerne v. Flores and subsequent cases, the Supreme Court has tightened the doctrinal test for prophylactic legislation based on Section Five. The Court has clarified Section Five's legitimate ends by holding that Congress may enforce Fourteenth Amendment rights only as they are defined by the federal judiciary, and the Court has constrained Section Five's permissible …

In Re Impounded: When Will The Right Against Self-Incrimination Protect Witnesses From Foreign Prosecution?, R. Christopher Preston

BYU Law Review

No abstract provided.

The Racial Origins Of Modern Criminal Procedure, Michael J. Klarman

Michigan Law Review

The constitutional law of state criminal procedure was born between the First and Second World Wars. Prior to 1920, the Supreme Court had upset the results of the state criminal justice system in just a handful of cases, all involving race discrimination in jury selection. By 1940, however, the Court had interpreted the Due Process Clause of the Fourteenth Amendment to invalidate state criminal convictions in a wide variety of settings: mob-dominated trials, violation of the right to counsel, coerced confessions, financially-biased judges, and knowingly perjured testimony by prosecution witnesses. In addition, the Court had broadened its earlier decisions forbidding …

Angry White Males: The Equal Protection Clause And "Classes Of One", Timothy Zick

Faculty Publications

No abstract provided.

Rights And Rules: An Overview, Matthew D. Adler, Michael C. Dorf

Cornell Law Faculty Publications

Prior to recent decades, the United States Supreme Court often invoked the political question doctrine to avoid deciding controversial questions of individual rights. By the 1970s and 1980s, standing limits traced to Article III’s case-or-controversy language had replaced the political question doctrine as the favored justiciability device. Although both political question and standing doctrines remain tools in the Court’s arsenal of threshold decision making,3 in the last decade the Court has turned with increasing frequency to the distinction between facial and as-applied challenges to perform the gatekeeping function. However, although there is a considerable body of scholarship concerning the conventional …

The Heterogeneity Of Rights, Michael C. Dorf

Cornell Law Faculty Publications

What is the implication for the validity of governmental rules of the conclusion that the rule interferes with a constitutional right? This question has implications for two important doctrinal puzzles. The first is the question when, if ever, a litigant has a constitutional right to an exemption from a generally valid rule of law. Many constitutional rights are rule-dependent in the sense that they protect actors against certain kinds of governmental rules rather than shielding acts against governmental interference. This Article denies the claim by scholars and judges that this rule-dependence reflects a deep truth about the nature of constitutional …

Because We Love You, Rosemary B. Quigley

Michigan Law Review

I remember the impotence I felt on the eve of the Gulf War in January 1991. No one could have known at that moment what a brief conflict it would be. We had every reason to believe that the Middle East would be hurled into turmoil. And if protracted war ensued, a draft would surely follow. I watched my college boyfriend sink into despair, with the help of a Bob Mould CD, at the prospect of being called to give his life for his country. I remained uncharacteristically mute. In the face of this battle, our positions were too unequal …

Healing The Blind Goddess: Race And Criminal Justice, Mark D. Rosenbaum, Daniel P. Tokaji

Michigan Law Review

Once again, issues of race, ethnicity, and class within our criminal justice system have been thrust into the public spotlight. On both sides of the country, in our nation's two largest cities, police are being called to account for acts of violence directed toward poor people of color. In New York City, a West African immigrant named Amadou Diallo was killed by four white police officers, who fired forty-one bullets at the unarmed man as he stood in the vestibule of his apartment building in a poor section of the Bronx. Did race influence the officers' decisions to fire the …

"The Mis-Characterization Of The Negro": A Race Critique Of The Prior Conviction Impeachment Rule, Montrè D. Carodine

Indiana Law Journal

The election of Barack Obama as the nation's first Black President was a watershed moment with respect to race relations in the United States. Obama's election removed what to many seemed a nearly insurmountable racial barrier. Yet as he transitions into his historic role and his family becomes the first Black occupants of the White House, scores of Blacks are housed in jails and prisons across the country. The mass incarceration of Blacks, among other serious issues, demonstrates that race still matters in the United States. As then-presidential candidate Obama acknowledged in the speech that many viewed to be pivotal …

Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya

Faculty Publications

No abstract provided.

Are State-Supported Historically Black Colleges And Universities Justifiable After Fordice?—A Higher Education Dilemma, John A. Moore

Florida State University Law Review

No abstract provided.

Subsidy For Caretaking In Families: Lessons From Foster Care , Catharine J. Ross, Naomi R. Cahn

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Subsidy For Caretaking In Families: Lessons From Foster Care , Catharine J. Ross, Naomi R. Cahn

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Baker V. Vermont, 744 A.2d 864 (Vt. 1999), Sam Charron

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Voting Rights Act And The "New And Improved" Intent Test: Old Wine In New Bottles, Randolph M. Mclaughlin

Elisabeth Haub School of Law Faculty Publications

Since the Supreme Court injected the issue of intent into the voting rights arena in Mobile v. Bolden,1 there has been a long and persistent struggle to reverse that decision. In 1982, Congress thought it had put the question of the quantum and quality of proof required to establish a violation of section 2 of the Voting Rights Act to rest when Congress amended that section. However, the courts quickly began a rear guard action to undermine congressional efforts to eliminate the intent requirement as an element of a plaintiff's claim. Both the Supreme Court and the circuit courts have …

Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler

Faculty Scholarship

Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a claimant …

Rights And Rules: An Overview, Matthew D. Adler, Michael C. Dorf

Faculty Scholarship

No abstract provided.

The Arbitrary Path Of Due Process, Harry F. Tepker

Faculty Articles

No abstract provided.