Constitutional Law Commons^™

Choice In Government Software Procurement: A Winning Combination, Mclean Sieverding

ExpressO

Governments are such significant purchasers of IT products and services that their purchasing decisions have a substantial impact on the world’s IT marketplace. This fact calls into question the wisdom of decisions by a few policymakers (on national, state, and local levels) around the world that have sought to require that governmental procurement officials give varying degrees of preference to open source software (OSS) when evaluating competing software solutions, claiming, among other things, that such preferences are justified because OSS is cheaper and more interoperable than proprietary software and needs government handicapping in order to enter the market to compete …

Misplaced Angst---Another Look At Consent-Search Jurisprudence, Daniel R. Williams

ExpressO

Conventional scholarship misunderstands the judicial invocation of voluntariness when evaluating a purported consensual search. The key is to nail down more precisely what we mean by the term, consent. Most commentators mistakenly entwine consent and waiver, wrongly treating the act of consenting (to a search, to questioning, etc.) as an instance where the actor is waiving a constitutional right. That conceptual error promotes the view that consent refers to a subjective condition, a psychological state, which, in turn, spurs the expectation that voluntariness refers to a person's inner experience. On this view of consent, the person's inner experience is what …

A Theory Of Government Damages Liability: Torts, Constitutional Torts, And Takings, Lawrence Rosenthal

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Theories of tort liability generally fall within two broad camps: the instrumentalists claim that tort liability promotes efficient investments in safety by cutting into the revenues of those who under-invest in safety; and the advocates of corrective justice claim that tort liability embodies a moral obligation of culpable parties to bear losses for which they are fairly considered responsible. Neither theory offers much support for government tort liability. Unlike private tortfeasors, the government’s objective is not profit maximization; it responds to political and not market discipline. Thus, the instrumental justification for tort liability is wanting in the public sector. As …

Equal Protection In The World Of Art And Obscenity: The Art Photographer's Latent Struggle With Obscenity Standards In Contemporary America, Elaine P. Wang

ExpressO

In the realm of obscenity law in the United States, photography as an art form is not on equal footing with more traditional art forms such as painting, drawing, and sculpture. This is a latent dilemma for artistic photographers because the law itself – in the form of state obscenity laws and the Supreme Court’s three-pronged test in Miller v. California – does not explicitly set forth varied standards of obscenity based on artistic medium. However, given the marginalization of photography in art history, there exists a bias against photography as “serious art.” Furthermore, evidence of the differential treatment of …

Circular 230 Opinion Standards, Legal Ethics And First Amendment Limitations On The Regulation Of Professional Speech By Lawyers, David T. Moldenhauer

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This article addresses the legal ethics and First Amendment implications of recent Treasury Department regulations governing legal opinions on tax-motivated transactions. As discussed in the article, the regulations are intended to address the significant policy and budgetary issue of practitioners’ involvement in the development, marketing and encouragement of abusive tax shelters. However, the article concludes that the regulations are in many respects an inappropriate response to these problems because their prohibitions prevent a lawyer from giving taxpayers a complete, informed assessment of their rights. As such, they create significant ethical conflicts and deny the public legal advice. More generally, they …

The Suffocation Of Free Speech Under The Gravity Of Danger Of Terrorism, Tim Davis

ExpressO

On July 14, 2005, Ali al-Timimi was sentenced to life in prison plus 70 years for acts of pure speech. The United States government contended that Timimi, through his lectures and direct personal appeals, induced and/or aided and abetted local Muslim men to leave the country and pursue jihad training with the intent to defend the Taliban against all potential enemies, including the United States. Buried in nearly 200 pages of jury instructions was a single paragraph that unceremoniously described the law of protected speech under Brandenburg v. Ohio. At first blush, Brandenburg seemed to unequivocally lay down the rule …

Fair Use And The First Amendment: Corporate Control Of Copyright Is Stifling Documentary Making And Thwarting The Aims Of The First Amendment, Paige Gold

ExpressO

Documentary motion pictures constitute a crucial part of contemporary public debate, because in today’s highly consolidated mass media environment, documentaries offer the kinds of independent voices that the First Amendment was designed to protect. However, current intellectual property practices are chilling speech by forcing documentary filmmakers to tailor their films to accommodate new, strict licensing practices. When filmmakers are compelled to edit their work to meet insurance requirements, it harms the interests of not just the filmmaker, but also the public. Thus, the “clearance culture,” in which anything and everything that could possibly lead to a lawsuit must be cleared, …

Torture: Considering A Framework For Limiting Use, Scott J. Goldberg

ExpressO

Abu Graib, Guantanamo, the War on Terror—the debate over the use of torture is still very much alive in the world today. The debate can be divided into two questions: (1) whether there should be an actual absolute ban where torture is never allowed either ethically or legally, and (2) if torture should be allowed under certain circumstances what form of regulation is best able to ensure that it is used only in those most limited circumstances. Currently, there is an absolute ban in place, yet world leaders, applying a case-by-case utilitarian approach, in fact permit the use of torture …

Toward A Federal Common Law Of Bankruptcy: Judicial Lawmaking In A Statutory Regime, Adam J. Levitin

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Bankruptcy is a statutory system, yet it is replete with practices for which there is no direct authorization in the Bankruptcy Code. This article argues that the authorization for judicial creation of bankruptcy law beyond the provisions of the Code has been misidentified as the equity powers of bankruptcy courts. This misidentification has led courts to place inappropriate statutory and historical limitations on non-Code practices because of discomfort with unguided equitable discretion.

Both the statutory and historic limitations are problematic. The statutory authorization for the bankruptcy courts’ equitable powers appears to have been repealed by what one judge has called …

The Place Of Structural Arguments In Contemporary Constitutional Theory, Kenneth Ward

ExpressO

This essay illustrates how our interest in questions of constitutional doctrine makes it difficult to assess structural arguments about judicial authority. In the past forty years, we have witnessed a shift in American constitutional theory. Scholars once assessed judicial authority based on their expectations of how judges should decide cases. In time, many concluded that discretion is an inevitable consequence of constitutional interpretation and therefore sought to justify such authority.

This shift has led some scholars to give greater emphasis to structural arguments. They identify institutional virtues that explain the judiciary’s role in a well ordered government. Although these scholars …

The Little Word "Due", Andrew T. Hyman

ExpressO

The meaning of the Due Process Clause is investigated, with special emphasis on the little word "due." The author concludes that the text and structure of the Constitution --- as well as the intentions of the framers --- strongly support the view of the late Justice Hugo Black regarding the meaning of this Clause in the Fifth and Fourteenth Amendments. In the Constitution, due process means process due according to the law of the land, and a statute is part of the law of the land if it does not violate or undermine any other provision of the Constitution. Thus, …

The (Neglected) Importance Of Being Lawrence: The Constitutionalization Of Public Employee Rights To Decisional Non-Interference In Private Affairs, Paul M. Secunda

ExpressO

This paper argues that whatever debates continue to stew regarding the true meaning of Lawrence v. Texas, at the very least, Lawrence represents the recognition of an individual's heightened interest in decisional non-interference in private affairs. This is an important constitutional development since a problem under the doctrine of unconstitutional conditions only arises when the government offers a benefit, like government employment, conditioned on the waiver of a preferred constitutional right. Thus, a government employer, post-Lawrence, should be prohibited, under the doctrine of unconstitutional conditions, from firing a government employee who exercises her rights to decisional non-interference in private affairs. …

Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer

ExpressO

The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three “guideposts” set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant's conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any “civil or criminal penalties that could be imposed for comparable misconduct.” Following up on this pronouncement …

Popular Sovereignty, Judicial Supremacy, And The American Revolution: Why The Judiciary Cannot Be The Final Arbiter Of Constitutions, William J. Watkins

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Key to understanding the connection between popular sovereignty and judicial review is the historical development of the theory of sovereignty in England and America. Section One of this article traces the defeat of divine right theory in England and the emergence of parliamentary sovereignty. Section Two considers the American colonists’ rejection of parliamentary sovereignty during the Revolution and their establishment of popular sovereignty as the cardinal principle of American constitutionalism. Section Three studies English precedent often cited as providing the basis for the American doctrine of judicial review and shows that these English cases were simply exercises in statutory construction …

Living By The Sword: The Free Exercise Of Religion And The Sikh Struggle For The Right To Carry A Kirpan, Rishi S. Bagga

ExpressO

Sikhism is a 500 year old religion with a growing presence in the United States. However, one of the articles of faith required for Sikhs, a kirpan (a ceremonial sword), conflicts with the norms of American life for these often misunderstood people. This paper gives a brief primer on Sikhism and discusses some of the day-to-day problems and recent issues facing kirpan-carrying Sikhs in North America. Upon reviewing the current state of free exercise jurisprudence as applied to the kirpan, I outline several suggestions for the acceptance and accommodation of kirpans.

Dan The Xenophobe Rides The A-Train Or The Modern, "Secret" Racist: Unconscious Racism In `Enlightened America' And The Destructive Stereotypes That Fuel It, Richard D. Salgado

ExpressO

A short story style exploration of unconscious racism in modern "enlightened" America.

Winning Wirzburger And Defeating The Blaine Amendments: Arguing Present Efficacy Instead Of Past Intent, Brendan Michael Groves

ExpressO

The case of Wirzburger v. Galvin, currently on a writ of certiorari to the Supreme Court, may set the tone for all religious discrimination cases in the future. Massachusetts’ constitutional amendments that proscribe any citizen initiatives from either dealing with religion in general or attempting to repeal the states Blaine Amendment are at issue in the case. Petitioner’s counsel, the Becket Fund, rightly views this case as paramount in the long-march to victory over the anti-Catholic Blaine Amendments still codified in 37 state constitutions. However, they have lost almost every stage of the case.

This article argues that Wirzburger and …

Help Wanted: The Constitutional Case Against Gerrymandering To Protect Congressional Incumbents, Walter M. Frank

ExpressO

This article argues that the Supreme Court has been incorrect in treating incumbent protection gerrymanders as a traditional and acceptable redistricting principle. Part I of the article sets out 3 separate lines of attack on excessive incumbent protection gerrymanders. Part II makes the case for judicial regulation of such gerrymanders and proposes a standard that would create a presumption of unconstitutionality that could be rebutted. A process oriented remedy is proposed and potential obstacles to a suit are also addressed.

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

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In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new …

Recent Developments In The Law Of The "Taking Issue", John C. Keene

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No abstract provided.

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

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This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Resurrection From Babel: The Cultural, Political, And Legal Status Of Christian Communities In Lebanon And Syria And Their Prospects For The Future, Alexandra R. Harrington

ExpressO

In the well-known Biblical story, the faithful, attempting to create a place of unity for themselves, set about building the Tower of Babel, only to see the Tower implode due to linguistic differences and power assertions. Thousands of years later, the world is still plagued by sectarian strife and warfare. Indeed, the situation has only become more involved since Babel, as there are now inter-communal and intra-communal conflicts for supremacy and superiority – a notable difference in these conflicts is that the ultimate tool of getting to Heaven is no longer a tower, it is now a state. Within the …

A Philosophical Investigation Into Methods Of Constitutional Interpretation In The United States And The United Kingdom, Louis E. Wolcher

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Most constitutional theorists in America and Britain are primarily interested in the contents of their respective constitutions. They pay less attention (and in Britain far less attention) to the methods that judges employ to derive those contents, and almost no attention to the philosophical aspects of judges’ interpretive methods. This article attempts to redress this imbalance by giving a distinctly philosophical description of the principal methods of constitutional interpretation that judges are inclined to follow in these two countries, and by developing the important distinction between the interpretation and the reception of a constitutional text. The act of interpretation is …

Seeing Government Purpose Through The Objective Observer's Eyes: The Evolution-Intelligent Design Debates, Kristi L. Bowman

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In October, 2004, the Dover, Pennsylvania School District became the first in the nation to adopt a policy requiring students studying evolution to be told about the concept of intelligent design. Soon thereafter, parents filed a lawsuit challenging the policy as violating the Establishment Clause. But, Establishment Clause doctrine is one of the most splintered, incoherent areas of the Court’s jurisprudence—and even more so after the Court’s June 2005 McCreary County v. Kentucky decision. Read strictly, McCreary County imports the effects-endorsement “objective observer” into the government purpose inquiry. This subtle shift has significant ramifications: McCreary County changes the nature of …

Making Free Speech Affordable: A Discussion Of Legislation To Provide Public Funding To Candidates For The U.S. Congress, Jared S. Cram

ExpressO

This article discusses a recent attempt by the U.S. Congress to provide for public financing of campaigns for the House of Representatives. Although a good start, this legislation would not go far enough to ensure that every voice has an opportunity to be heard in federal elections. My article discusses the strengths and weaknesses of this legislation and also provides suggested amendments to make this bill more effective should it become law.

Making Free Speech Affordable provides an in-depth comparison of this proposed legislation with current law at the state level providing for public financing of campaigns. This discussion includes …

Does The Icj's Decision In Avena Really Mean Anything To Mexicans On Death Row?, Kenneth Williams

ExpressO

This article assesses the legality of President Bush's order to state courts that they review the convictions and sentences of certain Mexican nationals on death row in response to the ICJ's decision that the rights of these inmates had been violated. The article also discusses the review process and makes a proposal to ensure that the ICJ's mandate is carried out. Finally, there is a discussion as to the importance of these cases to both the U.S. and Mexico.

Law And Economic Analysis On The Relationship Of Transparency And Voluntary Redistribution Of Wealth: Pursuing Both Efficiency And Equity At Once, Woo-Jong Jon

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Charitable works can be analyzed as public goods or externalities. Eradication of extreme poverty and hunger, basic science research, and support for art and religion are public goods. These have non-excludability and non-rivalry, which are the defining characteristics of public goods, making philanthropist’s honor spread over more beneficiaries. And to achieve universal primary education is an externality because educations for the unlearned peolpe benefits both themselves and society at large. And in this knowledge and information era education is more and more important, thus society has to support the students who desire to escape from poverty helping them to receive …

Prosecuting Counterfeit License Plates: A Law Clerk's Constitutional Argument, Miguel R. Acosta

ExpressO

The article discusses the status and probable future of the counterfeit license plate statute in Florida, Florida Statute Section 320.26(1)(a). It prohibits the possession of counterfeit license plates. However, it contains no explicit mens rea requirement. As a result, this law has been challenged repeatedly of late because it is punishable up to five years in prison and because it could potentially be used to punish innocent conduct.

The Transnational Judicial Discourse And Felon Disenfranchisement: Re-Examining The Textual Premise Of Richardson V. Ramirez, Jason G. Morgan-Foster

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This article is simultaneously an international comparative law piece about prisoner disenfranchisement in various countries, a transnational work of legal theory providing a framework for the use of foreign law in domestic constitutional courts, and a domestic analysis of the constitutional underpinnings of felon disenfranchisement.

The article begins with a comprehensive comparative analysis of the recent prisoner disenfranchisement decisions in Canada, South Africa, and Europe. It notes that the over-arching theme of these decisions is to view the acceptability of prisoner disenfranchisement along a continuum, where it becomes more acceptable the more serious the offense committed.

The article then examines …

Single Subject Rules And Public Choice Theory, Michael Gilbert

ExpressO

Despite generating thousands of cases on important public issues, the single subject rule remains a source of confusion and inconsistency. The root of the problem lies in the inability to define the term “subject” using legal doctrine. This paper reexamines the single subject rule through the lens of public choice theory and finds that its purposes are wrongheaded. Logrolling is not necessarily harmful, and improving political transparency requires legislative compromises to be packaged together rather than spread across multiple acts. Riding is not a form of logrolling but an analytically distinct and more threatening practice. This analysis yields a precise, …