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Articles 361 - 390 of 460

Full-Text Articles in Constitutional Law

Dissing Congress , Ruth Colker, James J. Brudney Jan 2001

Dissing Congress , Ruth Colker, James J. Brudney

Faculty Scholarship

This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and …

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Making Sense Of The Eleventh Amendment: International Law And State Sovereignty, Thomas H. Lee Jan 2001

Making Sense Of The Eleventh Amendment: International Law And State Sovereignty, Thomas H. Lee

Faculty Scholarship

The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. - Eleventh Amendment to the Constitution of the United States of America The thesis of this article is that the Eleventh Amendment, ratified in 1798, represented the incorporation into the American domestic constitutional law of federalism (specifically, the doctrine of state sovereign immunity) the late eighteenth-century international law rule that only states have rights against other states …

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The First Amendment, The Right Not To Speak And The Problem Of Government Access Statutes, Anna M. Taruschio Jan 2000

The First Amendment, The Right Not To Speak And The Problem Of Government Access Statutes, Anna M. Taruschio

Fordham Urban Law Journal

The dual principles of promoting the marketplace of ideas and protecting individual autonomy lie at the core of the First Amendment. When the government assumes an affirmative role by opening opportunities for public speech, it places individuals' negative liberties, such as the right not to speak, at risk. This conflict cannot be avoided by analyzing compelled speech outside of the First Amendment; the autonomy promised by the Bill of Rights and repeatedly affirmed by Supreme Court jurisprudence protects the right not to speak. Scholars, jurists, and practitioners therefore should pay close attention to the right not to speak when the …

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The Pain Relief Promotion Act: Will It Spell Death To "Death With Dignity" Or Is It Unconstitutional?, Joy Fallek Jan 2000

The Pain Relief Promotion Act: Will It Spell Death To "Death With Dignity" Or Is It Unconstitutional?, Joy Fallek

Fordham Urban Law Journal

This Note explores Congress' attempts to restrict Oregon's Death with Dignity Act by enacting two the Lethal Drug Abuse and Prevention Act of 1998 ("LDAP Act") and the Pain Relief Promotion Act of 1999 ("PRPA"). It explores constitutional decisions concerning physician-assisted suicide and those which tend to show that the Supreme Court demonstrated federalist leanings during this time. The Note concludes that this Congressional legislation is a premature attempt to restrict experimentation concerning physician-assisted suicide and that the Supreme Court should strive to thwart attempts to cut off such experimentation.

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Stopping Hate Without Stifling Speech: Re-Examining The Merits Of Hate Speech Codes On University Campuses, Catherine B. Johnson Jan 2000

Stopping Hate Without Stifling Speech: Re-Examining The Merits Of Hate Speech Codes On University Campuses, Catherine B. Johnson

Fordham Urban Law Journal

This Note explores legislative attempts to help reduce incidents of hate speech on university campuses. It begins by analyzing the rise in hate speech codes at public universities and examining two U.S. Supreme Court decisions in R.A.V. v. City of St. Paul and Wisconsin v. Mitchell. The author argues that a hate speech code that implements forward-looking, long-term education objective would work towards stopping hate on campus without violating students' First Amendment rights. This Note reaches the conclusion that a narrowly drawn hate speech code based on recognized First Amendment exceptions, implemented along with with education initiatives, could facilitate the …

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Child Access Prevention Laws: Keeping Guns Out Of Our Children's Hands, Rachel Shaffer Jan 2000

Child Access Prevention Laws: Keeping Guns Out Of Our Children's Hands, Rachel Shaffer

Fordham Urban Law Journal

This Note explores the Child Access Prevention ("CAP") law and laws which are generally intended to limit children's access to guns at home. The author proposes a model CAP law that should be enacted in the United States. This Note discusses the evolution of CAP laws and presents for arguments for and against such laws. It delves into the National Rifle Association's ("NRA") powerful influence that improperly prevents CAP laws from being enacted by the federal government. Additionally, it is argued that unless the federal government enacts a CAP law, innocent children will continue to be injure and lose their …

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Government Of The Good , Abner S. Greene Jan 2000

Government Of The Good , Abner S. Greene

Faculty Scholarship

Webster's definition of the noun "good" begins: "something that possesses desirable qualities, promotes success, welfare, or happiness, or is otherwise beneficial." Whether government should promote the good, and in particular whether government should use its powers of persuasion-its "speech," if you will-to promote contested views of the good, is the subject of this Article. I will argue that, as a matter of political theory, government in a liberal democracy not only may promote contested views of the good, but should do so, as well. Further, nothing in our constitutional jurisprudence demands otherwise, assuming certain conditions are met. In taking these …

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Section 60.41 Of The New York Criminal Procedure Law: The Sexual Assault Reform Act Of 1999 Challenges Molineux And Due Process, Brooks Holland Jan 1999

Section 60.41 Of The New York Criminal Procedure Law: The Sexual Assault Reform Act Of 1999 Challenges Molineux And Due Process, Brooks Holland

Fordham Urban Law Journal

The 1999 Sexual Assault Reform Act of 1999 proposed the addition of section 60.41 to Article 60 of the New York Criminal Procedure Law to allow prosecutors in sexual assault prosecutions to introduce evidence of a defendant's previous commission of any "offense or offenses of sexual assault.., on any matter to which it is relevant, including the defendant's propensity to commit an offense of sexual assault or the credibility of the alleged victim of the sexual assault . ." The author argues that this law would upset a century of New York law under the Molineux rule, which holds that …

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The Politics Of Permits: The Unconstitutionality Of The Guiliani Administration's Parade And Rally Permit Application Procedures, Michael L. Landsman Jan 1999

The Politics Of Permits: The Unconstitutionality Of The Guiliani Administration's Parade And Rally Permit Application Procedures, Michael L. Landsman

Fordham Urban Law Journal

This article addresses the unconstitutionality of New York Mayor Rudolph Guiliani’s Administration’s parade and rally permit application procedures, which Judge Leonard B. Sand of the Southern District of New York held to be in violation of the First Amendment on November 16, 1998. The author initially noted the two major factors that won Guiliani the 1993 mayoral election, New Yorker’s belief that he could (1) reduce crime and (2) cool racial tensions, and then “curiously” observed that the groups that faced the greatest bias in their applications were those that applied for parade or rally permits to protest or make …

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Regionalism And The Religion Clauses: The Contribution Of Fisher Ames, Marc Arkin Jan 1999

Regionalism And The Religion Clauses: The Contribution Of Fisher Ames, Marc Arkin

Faculty Scholarship

On August 20, 1789, Massachusetts Federalist Fisher Ames rose to address the House of Representatives in one of his rare contributions to the debate on the Bill of Rights. 1 The day before, sitting as a Committee of the Whole, the House had concluded its brief discussion of the proposed religion amendment to the federal Constitution by agreeing to New Hampshire Representative Samuel Livermore's formula that "Congress shall make no laws touching religion, or infringing the rights of conscience." 2 Now, on the 20th, before the House could formally adopt Livermore's language, Representative Ames proposed a different wording. He moved …

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Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury Jan 1999

Agency, Equality, And Antidiscrimination Law , Tracy E. Higgins, Laura A. Rosenbury

Faculty Scholarship

The Supreme Court increasingly has interpreted the Equal Protection Clause as a mandate for the state to treat citizens as if they were equal-as a limitation on the state's ability to draw distinctions on the basis of characteristics such as race and, to a lesser extent, gender. In the context of race, the Court has struck down not only race-specific policies designed to harm the historically oppressed, but race conscious policies designed to foster racial equality. Although in theory the Court has left open the possibility that benign uses of race may be constitutional under some set of facts, in …

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Constitutional Challenges To New York State's Death Penalty Statute, John M. Shields Jan 1998

Constitutional Challenges To New York State's Death Penalty Statute, John M. Shields

Fordham Urban Law Journal

New York State's death penalty statute is constitutionally flawed in many respects. It violates the state and federal prohibition against cruel and unusual punishment and provides unrestricted prosecutorial discretion to pursue the death penalty. This standardless and unfettered discretion creates the risk of arbitrary or discriminatory application of capital punishment.

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Walking A Tightrope: Redrawing Congressional District Lines After Shaw V. Reno And Its Progeny, Donovan L. Wickline Jan 1998

Walking A Tightrope: Redrawing Congressional District Lines After Shaw V. Reno And Its Progeny, Donovan L. Wickline

Fordham Urban Law Journal

The Supreme Court's decision in Shaw V. Reno forbade the drawing of congressional district lines so that minorities would make up a larger percentage of the voting population. This note explores the tension between this ruling and the section of the Voting Rights Act requiring that minorities be fully represented within their congressional districts. It argues that the two rulings do not necessarily conflict. It concludes that the Court should clarify the meaning and role of "compactness" in redistricting and provide guideposts for legislators litigants, and courts involved in the reapportionment process.

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Defining And Punishing Abroad: Constitutional Limits On The Extraterritorial Reach Of The Offenses Clause Note, Zephyr Teachout Jan 1998

Defining And Punishing Abroad: Constitutional Limits On The Extraterritorial Reach Of The Offenses Clause Note, Zephyr Teachout

Faculty Scholarship

The Offenses Clause of the United States Constitution gives Congress the authority to "define and punish... Offences against the Law of Nations." This Note considers whether Congress must conform to the jurisdictional rules of customary international law when legislating pursuant to the Offenses Clause.

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Dual Sovereignty And The Double Jeopardy Clause: If At First You Don't Convict, Try, Try, Again , Robert Matz Jan 1997

Dual Sovereignty And The Double Jeopardy Clause: If At First You Don't Convict, Try, Try, Again , Robert Matz

Fordham Urban Law Journal

This Note argues that the application of the dual sovereignty doctrine to cases involving successive state and federal prosecutions, where the initial prosecution resulted in an acquittal, violates the Double Jeopardy Clause of the Fifth Amendment. Part I discusses the rationale for the prohibition against double jeopardy and the principle of dual sovereignty. Part II outlines the Supreme Court jurisprudence regarding successive prosecutions brought by independent sovereigns. Part III reviews the arguments against applying the dual sovereignty doctrine in the context of successive prosecutions where the initial prosecution resulted in an acquittal and proposes that the Supreme Court reconsider the …

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Intent And Incoherence, Sheila R. Foster Jan 1997

Intent And Incoherence, Sheila R. Foster

Faculty Scholarship

In this Article, Professor Sheila Foster dissects the intent standard in equal protection jurisprudence, filtering it through the lens of democratic process theory. Most legal scholars and commentators writing in this area continuously restate, and critique, the "rule" of intent as a uniform standard in constitutional law. However, it is clear from the Supreme Court's jurisprudence (and that of the lower federal courts) that different levels of consciousness can satisfy the discriminatory intent standard, and hence violate the Equal Protection Clause. Exactly what explains these disparate, and seemingly incoherent, levels of intent is the subject of this Article. Professor Foster …

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Intent And Incoherence, Sheila R. Foster Jan 1997

Intent And Incoherence, Sheila R. Foster

Faculty Scholarship

In this Article, Professor Sheila Foster dissects the intent standard in equal protection jurisprudence, filtering it through the lens of democratic process theory. Most legal scholars and commentators writing in this area continuously restate, and critique, the "rule" of intent as a uniform standard in constitutional law. However, it is clear from the Supreme Court's jurisprudence (and that of the lower federal courts) that different levels of consciousness can satisfy the discriminatory intent standard, and hence violate the Equal Protection Clause. Exactly what explains these disparate, and seemingly incoherent, levels of intent is the subject of this Article. Professor Foster …

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Principles And Passions: The Intersection Of Abortion And Gun Rights , Nicholas J. Johnson Jan 1997

Principles And Passions: The Intersection Of Abortion And Gun Rights , Nicholas J. Johnson

Faculty Scholarship

In this article, Professor Nicholas J. Johnson explores the parallels between the right of armed self-defense and the woman's right to abortion. Professor Johnson demonstrates that the theories and principles advanced to support the abortion right intersect substantially with an individual's right to armed self-defense. Professor Johnson uncovers common ground between the gun and abortion rights - two rights that have come to symbolize society's deepest social and cultural divisions - divisions that prompt many to embrace the abortion right while summarily rejecting the gun right. Unreflective disparagement of the gun right, he argues, threatens the vitality of the abortion …

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Suspended Over The Abyss: A City's Quest For Local Autonomy In Institutional Reform Litigation, Michelle S. Simon Jan 1996

Suspended Over The Abyss: A City's Quest For Local Autonomy In Institutional Reform Litigation, Michelle S. Simon

Fordham Urban Law Journal

This Article examines the conflict between preserving local autonomy and remedying constitutional violations in the context of school desegregation. It articulates the problem by exploring the role of the city and its part in institutional reform. It examines what is meant by local autonomy and institutional reform in the context of the ongoing struggle in Kansas City, Missouri. It examines how the Supreme Court has viewed the relationship between the remedial powers of district courts and municipal autonomy of local governments. Finally, it argues for a more coherent system of balancing judicial involvement and local government autonomy in fashioning remedial …

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Democracy And Feminism , Tracy E. Higgins Jan 1996

Democracy And Feminism , Tracy E. Higgins

Faculty Scholarship

Although feminist legal theory has had an important impact on most areas of legal doctrine and theory over the last two decades, its contribution to the debate over constitutional interpretation has been comparatively small. In this Article, Professor Higgins explores reasons for the limited dialogue between mainstream constitutional theory and feminist theory concerning questions of democracy, constitutionalism, and judicial review. She argues that mainstream constitutional theory tends to take for granted the capacity of the individual to make choices, leaving the social construction of those choices largely unexamined. In contrast, feminist legal theory's emphasis on the importance of constraints on …

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The Judicial System & Equality In Schooling, Frank J. Macciarola, Dorothy Kerzner Lipsky, Alan Gartner Jan 1996

The Judicial System & Equality In Schooling, Frank J. Macciarola, Dorothy Kerzner Lipsky, Alan Gartner

Fordham Urban Law Journal

This Article examines how the concept of equality has played out in the efforts of the courts to define student rights in several important areas. These include school prayer and flag salutation, racial discrimination and cases concerning students with learning disabilities. The Article examines how differences in these areas are first conceptualized and then addressed by the courts. This Article discusses good school practices and addresses the educational methods which have been proven to be effective. The common thread in effective educational doctrine is that programs which integrate and include students are often the most effective education method on many …

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Constitutional Mass Torts: Sovereign Immunity And The Human Radiation Experiments (Note), Nestor M. Davidson Jan 1996

Constitutional Mass Torts: Sovereign Immunity And The Human Radiation Experiments (Note), Nestor M. Davidson

Faculty Scholarship

Part I of this Note explains why the present system does not allow individuals to recover damages against the federal government for violations of the Constitution. It first describes the doctrine of constitutional torts and its limitations. It then discusses sovereign immunity, and explains that Congress has retained sovereign immunity for constitutional torts. It concludes with a discussion of the Supreme Court's policy arguments for not creating a cause of action against the government for constitutional violations. Part II explores the Human Radiation Experiments as a case study in the remedial gaps created by the current scope of Bivens and …

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Plenary Power And Constitutional Outcasts: Federal Power, Critical Race Theory, And The Second, Ninth, And Tenth Amendments , Nicholas J. Johnson Jan 1996

Plenary Power And Constitutional Outcasts: Federal Power, Critical Race Theory, And The Second, Ninth, And Tenth Amendments , Nicholas J. Johnson

Faculty Scholarship

Rights and power in modern American constitutionalism are conceptually interdependent: "We have no way of thinking about constitutional rights independent of what powers it would be prudent or desirable for government to have." In an era where substantive boundaries on federal power seem ephemeral, this suggests that what we call rights may be primarily fair weather or illusory barriers to the exercise of power.From a majoritarian perspective, the shifting boundary between rights and powers, and the capacity of power to consume rights, may be unproblematic and even attractive. If the exercise of plenary power reflects majority will, then this exercise …

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Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski Jan 1996

Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski

Faculty Scholarship

A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …

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Irreducible Constitution, The 1996 Jcli Religion Symposium, Abner S. Greene Jan 1996

Irreducible Constitution, The 1996 Jcli Religion Symposium, Abner S. Greene

Faculty Scholarship

No matter how hard they try, some constitutional theorists can't avoid being, at bottom, either democratic-foundationalists ("democrats") or rights-foundationalists. In the first part of this essay, I will offer a third way, insisting that at the heart of the American constitutional order is an irreconcilable conflict between these divergent accounts, that attempts to predicate constitutionalism on either democracy or rights cannot succeed. Our constitution (a term I will use to mean our constitutional order--text plus ... ) is, at the core, coreless. It cannot be resolved to a master predicate. It cannot be reduced to democracy or to rights. It …

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Note: A Procedural Approach To Limited Public Forum Cases, Lee Rudy Jan 1995

Note: A Procedural Approach To Limited Public Forum Cases, Lee Rudy

Fordham Urban Law Journal

This Note argues that the Supreme Court, beginning with Perry, has defined the limited public forum in a manner that offends the underlying policies of the First Amendment.9 Part II of this Note explains the significance of the limited public forum doctrine within First Amendment jurisprudence. Part III provides an historical overview of limited public forum cases, demonstrating that Perry relaxed limited public forum analysis by making it easier for government selectively to restrict access to public property, and that subsequent cases have had to struggle to apply Perry. Part IV criticizes Perry's reformulation of the limited public forum as …

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Note: New York City's Restrictive Zoning Of Adult Businesses: A Constitutional Analysis, Rachel Simon Jan 1995

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' …

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Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski Jan 1995

Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski

Faculty Scholarship

The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of equality into the …

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The Ghost At The Banquet: Slavery, Federalism, And Habeas Corpus For State Prisoners, Marc Arkin Jan 1995

The Ghost At The Banquet: Slavery, Federalism, And Habeas Corpus For State Prisoners, Marc Arkin

Faculty Scholarship

No abstract provided.

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Of Laws And Men: An Essay On Justice Marshall's View Of Criminal Procedure, Bruce A. Green, Daniel C. Richman Jan 1994

Of Laws And Men: An Essay On Justice Marshall's View Of Criminal Procedure, Bruce A. Green, Daniel C. Richman

Faculty Scholarship

No abstract provided.

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