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Maurer School of Law: Indiana University

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Articles 451 - 480 of 943

Full-Text Articles in Constitutional Law

Presidential Non-Enforcement Of Constitutionally Objectionable Statutes, Dawn E. Johnsen Jan 2000

Presidential Non-Enforcement Of Constitutionally Objectionable Statutes, Dawn E. Johnsen

Articles by Maurer Faculty

This article, published in Law & Contemporary Problems, was presented at a Duke Law School conference, The Constitution Under Clinton: A Critical Assessment. It examines a recurring, unsettled issue of executive power: how the President best fulfills his constitutional responsibilities when confronted with the enforcement of a statute that he believes is unconstitutional. What should the President do if he believes enforcing a statutory provision would violate the Constitution? Should, for example, a President comply with a congressional command that he believes would violate the constitutional rights of individuals or compromise presidential power? The article examines the two prevailing approaches …

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The Battle For Portland, Maine, L. Andrew Tollin Dec 1999

The Battle For Portland, Maine, L. Andrew Tollin

Federal Communications Law Journal

In 1985, when the FCC began the competitive process of deciding who would be licensed to provide cellular telephone service to Portland, Maine, chaos and irony reigned. Thirteen years later, after a bitter legal battle among local telephone companies, a provider was finally selected. At one point or another, all three branches of government became involved. The license itself changed hands three times during the case and, in essence, three different telephone systems were constructed. Ultimately, the case was decided on the basis of whether the FCC complied with a preexisting federal law, the Paperwork Reduction Act, in adopting the …

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Cable Internet Unbundling: Local Leadership In The Deployment High Speed Access, Marcus Maher Dec 1999

Cable Internet Unbundling: Local Leadership In The Deployment High Speed Access, Marcus Maher

Federal Communications Law Journal

With the pending merger of TCI and AT&T and their promise of "one-stop" television, Internet, and telephone service, the cable Internet issues move to the forefront. The desire of traditional Internet Service Providers to gain access to new high-speed technologies for Internet access led to requests for unbundling or open access to cable systems. Despite the heated debate on the need for unbundling that has occurred at the federal level, local authorities have taken the lead in requiring open access to cable for competing ISPs. General anticompetitive concerns with cable Internet dominated by the cable company could be alleviated in …

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The Constitutionality Of The Driver’S Privacy Protection Act: A Fork In The Information Access Road, Angela R. Karras Dec 1999

The Constitutionality Of The Driver’S Privacy Protection Act: A Fork In The Information Access Road, Angela R. Karras

Federal Communications Law Journal

The Driver's Privacy Protection Act, instituted in 1997, regulates the disclosure of personal information in motor vehicle records. New controversy surrounds it today as the U.S. Supreme Court evaluates the arguments presented in November 1999 regarding its constitutionality. A split among circuit courts, coupled with the tremendous growth in technology and subsequent new in-roads for information access, draw increased attention toward the Act. The concern for information access in light of the Act, however, reaches beyond the courts' elucidated concerns about dual sovereignty and the public's right to privacy. This Note argues that there is a forgotten argument: the Act's …

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Strike Two: An Analysis Of The Child Online Protection Act’S Constitutional Failures, Heather L. Miller Dec 1999

Strike Two: An Analysis Of The Child Online Protection Act’S Constitutional Failures, Heather L. Miller

Federal Communications Law Journal

Congress's first attempt to regulate minors' access to sexually explicit material via the Internet failed. Congress responded with the Child Online Protection Act, which, despite its narrower scope, cannot withstand constitutional scrutiny. This Notes delves into the constitutionality of Congress's second attempt by addressing the difficulty of applying the vague "harmful to minors" definition to the Internet medium and the economic and technological unavailability of the Act's affirmative defenses. This Note concludes with an explanation as to why legislation is an ineffective mechanism to address the problem of minors' access to online pornography.

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Federal Court Jurisdiction Over Private Tcpa Claims: Why The Federal Courts Of Appeals Got It Right, Kevin N. Tharp Dec 1999

Federal Court Jurisdiction Over Private Tcpa Claims: Why The Federal Courts Of Appeals Got It Right, Kevin N. Tharp

Federal Communications Law Journal

The Telephone Consumer Protection Act of 1991 protects the privacy interests of residential telephone subscribers by placing restrictions on unsolicited, automated telephone calls to the home and facilitates interstate commerce by restricting certain uses of facsimile machines and automatic dialers. Since the statute is silent regarding federal district court jurisdiction over private TCPA claims, federal courts scramble in search for existing law to support their conclusions that the TCPA divests federal district courts of jurisdiction over private TCPA claims. In addition to the reasoning offered by the circuit courts, this Notes discusses the jurisdiction issue and adds an important reason …

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Globalization In Search Of Justification: Toward A Theory Of Comparative Constitutional Interpretation, Sujit Choudhry Jul 1999

Globalization In Search Of Justification: Toward A Theory Of Comparative Constitutional Interpretation, Sujit Choudhry

Indiana Law Journal

No abstract provided.

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Removal And Waiver Of The Eleventh Amendment, Leah M. Krider Jul 1999

Removal And Waiver Of The Eleventh Amendment, Leah M. Krider

Indiana Law Journal

No abstract provided.

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Betting On The Net: An Analysis Of The Government’S Role In Addressing Internet Gambling, Stevie A. Kish Mar 1999

Betting On The Net: An Analysis Of The Government’S Role In Addressing Internet Gambling, Stevie A. Kish

Federal Communications Law Journal

The Internet Gambling Prohibition Act represents the U.S. Senate’s response to the development of a new online industry—Internet gambling. While this ban could arguably reduce the dangers associated with Internet gambling, such as fraud and addiction, it can only do so by exacting a substantial cost on principles of federalism. Rather than enacting this federal prohibition, Congress should instead leave the issue of whether Internet gambling should be legalized to the states.

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Free Exercise, Federalism, And The States As Laboratories, Daniel O. Conkle Jan 1999

Free Exercise, Federalism, And The States As Laboratories, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

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Executive Privilege Since United States V. Nixon: Issues Of Motivation And Accommodation, Dawn E. Johnsen Jan 1999

Executive Privilege Since United States V. Nixon: Issues Of Motivation And Accommodation, Dawn E. Johnsen

Articles by Maurer Faculty

No abstract provided.

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Constitutional Tales Of Violence: Populists, Outgroups, And The Multicultural Landscape Of The Second Amendment, David C. Williams Jan 1999

Constitutional Tales Of Violence: Populists, Outgroups, And The Multicultural Landscape Of The Second Amendment, David C. Williams

Articles by Maurer Faculty

Traditionally, populists have claimed the Second Amendment as their particular cultural property; by contrast, outgroups and elites have found the Amendment somewhat culturally alien. Recently, some outgroup members have argued that their groups ought to embrace the Amendment because the right to keep and bear arms can be a valuable way of resisting populist oppression. This Article explores this changing multicultural landscape of the Second Amendment It recognizes that in particular instances and in the short term, outgroups might need to arm themselves against hate violence. It argues, however, that only a consensus culture on the use of violence will …

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State Sales & Use Tax On Internet Transactions, Sandi Owen Dec 1998

State Sales & Use Tax On Internet Transactions, Sandi Owen

Federal Communications Law Journal

The explosive growth of electronic commerce raises serious questions about the viability of the current state sales and use tax system. Sales via the Internet and other electronic means are changing both the form and substance of consumer transactions, and such sales often do not satisfy the traditional nexus requirement for state taxation because on-line vendors frequently lack physical presence in the purchaser’s home state. The inability to collect taxes on this growing segment of the retail sales market will impair states’ efforts to raise revenues and cause economically similar transactions to be treated differently. Consequently, Congress must act pursuant …

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Rethinking The Clear And Present Danger Test, David R. Dow, R. Scott Shieldes Oct 1998

Rethinking The Clear And Present Danger Test, David R. Dow, R. Scott Shieldes

Indiana Law Journal

No abstract provided.

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Globalization And The United States Constitution: How Much Can It Accommodate, James M. Boyers Apr 1998

Globalization And The United States Constitution: How Much Can It Accommodate, James M. Boyers

Indiana Journal of Global Legal Studies

No abstract provided.

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The Holy And The Handicapped: An Examination Of The Different Applications Of The Reasonable-Accommodation Clauses In Title Vii And The Ada, Alan D. Schuchman Apr 1998

The Holy And The Handicapped: An Examination Of The Different Applications Of The Reasonable-Accommodation Clauses In Title Vii And The Ada, Alan D. Schuchman

Indiana Law Journal

No abstract provided.

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First Amendment Trump?: The Uncertain Constitutionalization Of Structural Regulation Separating Telephone And Video, Susan Dente Ross Mar 1998

First Amendment Trump?: The Uncertain Constitutionalization Of Structural Regulation Separating Telephone And Video, Susan Dente Ross

Federal Communications Law Journal

The Cable Act of 1984 contained a "cross-ownership" ban, which prohibited telephone companies from entering the local cable video market. Although the ban was challenged by telephone carriers on numerous grounds, the First Amendment was not the basis of any challenge until the mid-1990s when telephone companies sought to characterize themselves not just as carriers but as content suppliers, or "speakers," who were deprived of their right to speak as a result of common carrier regulations that were intended merely to control the economic structure of the communications industry. Using the First Amendment as a new-found constitutional weapon to challenge …

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Balancing The Scales: The 1996 Telecommunications Act And Eleventh Amendment Immunity, Cynthia L. Bauerly Mar 1998

Balancing The Scales: The 1996 Telecommunications Act And Eleventh Amendment Immunity, Cynthia L. Bauerly

Federal Communications Law Journal

The Telecommunications Act of 1996 explicitly created a role for federal courts in the interconnection process. However, parties' ability to seek federal review of interconnection agreements is no longer as straightforward as the language of the Act implies. The Supreme Court's unnecessarily novel and narrow reading of Eleventh Amendment immunity in Seminole Tribe v. Florida renders unenforceable the federal review provisions of the Act against state regulatory commissions. While some interconnection agreements may find their way into federal court, for example, where a party seeking to interconnect sues an incumbent provider instead of the state commission, enforcement of a federal …

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Section 253 Of The Telecommunications Act Of 1996: A Permanent Physical Appropriation Of Private Property That Must Be Justly Compensated, Jennifer L. Worstell Mar 1998

Section 253 Of The Telecommunications Act Of 1996: A Permanent Physical Appropriation Of Private Property That Must Be Justly Compensated, Jennifer L. Worstell

Federal Communications Law Journal

Section 253 of the Telecommunications Act of 1996 was promulgated in an effort to remove unnecessary regulation by local governments and open up competition among local phone companies, cable providers, and other telecommunications concerns. However, this provision effectively prohibits local governments from managing their rights-of-way. Furthermore, it violates modern Fifth Amendment takings jurisprudence, Section 253 and the first three FCC and court decisions examining it not only have jeopardized effective municipal management and resource allocation discretion, but also have usurped local governments' property rights without just compensation in explicit violation of the United States Constitution.

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Thou Shalt Not Sue The Church: Denying Court Access To Ministerial Employees, Shawna Meyer Eikenberry Jan 1998

Thou Shalt Not Sue The Church: Denying Court Access To Ministerial Employees, Shawna Meyer Eikenberry

Indiana Law Journal

No abstract provided.

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Poland's 1997 Constitution In Its Historical Context, Daniel H. Cole Jan 1998

Poland's 1997 Constitution In Its Historical Context, Daniel H. Cole

Articles by Maurer Faculty

No abstract provided.

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Congressional Alternatives In The Wake Of City Of Boerne V. Flores: The (Limited) Role Of Congress In Protecting Religious Freedom From State And Local Infringement, Daniel O. Conkle Jan 1998

Congressional Alternatives In The Wake Of City Of Boerne V. Flores: The (Limited) Role Of Congress In Protecting Religious Freedom From State And Local Infringement, Daniel O. Conkle

Articles by Maurer Faculty

This article discusses and analyzes City of Boerne v. Flores, the Supreme Court's 1997 decision invalidating the Religious Freedom Restoration Act of 1993 (RFRA) as applied to state and local governments, and it explores a variety of ways in which Congress might respond to Boerne with legislation that might survive constitutional scrutiny. In particular, the article addresses the following statutory possibilities: more narrowly tailored legislation grounded on Section 5 of the Fourteenth Amendment; RFRA-like legislation grounded on Congress's power over interstate commerce or its power to implement treaties; and spending-power legislation imposing RFRA-like conditions on the receipt of federal funding …

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Co-Opting Compassion: The Federal Victim's Rights Amendment, Lynne N. Henderson Jan 1998

Co-Opting Compassion: The Federal Victim's Rights Amendment, Lynne N. Henderson

Articles by Maurer Faculty

No abstract provided.

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A Comment On The Evolution Of Direct Democracy In Western State Constitutions, Patrick L. Baude Jan 1998

A Comment On The Evolution Of Direct Democracy In Western State Constitutions, Patrick L. Baude

Articles by Maurer Faculty

No abstract provided.

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Section 254 Of The Telecommunications Act Of 1996: A Hidden Tax?, Nichole L. Millard Dec 1997

Section 254 Of The Telecommunications Act Of 1996: A Hidden Tax?, Nichole L. Millard

Federal Communications Law Journal

Congress has the sole power to levy and collect taxes. The Supreme Court has ruled that Congress may delegate this authority to administrative agencies so long as the will of Congress is clearly defined in the legislation. However, section 254 of the Telecommunications Act of 1996 operates as an unconstitutional delegation of Congress' authority to tax. This legislation provides the FCC with unfettered discretion in defining the boundaries of universal service and the authority to mandate that all consumers of telecommunications services subsidize the cost for low-income and rural consumers, as well as schools, libraries, and health care providers.

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The Expanding Importance Of Temporary Physical Takings: Some Unresolved Issues And An Opportunity For New Directions In Takings Law, Dennis H. Long Oct 1997

The Expanding Importance Of Temporary Physical Takings: Some Unresolved Issues And An Opportunity For New Directions In Takings Law, Dennis H. Long

Indiana Law Journal

No abstract provided.

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Ronald Dworkin's The Moral Reading Of The Constitution: A Critique, Raoul Berger Oct 1997

Ronald Dworkin's The Moral Reading Of The Constitution: A Critique, Raoul Berger

Indiana Law Journal

No abstract provided.

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Jack Rakove's Rendition Of Original Meaning, Raoul Berger Jul 1997

Jack Rakove's Rendition Of Original Meaning, Raoul Berger

Indiana Law Journal

No abstract provided.

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The Uniform Commercial Code Meets The Seventh Amendment: The Demise Of Jury Trials Under Article 5?, Margaret L. Moses Jul 1997

The Uniform Commercial Code Meets The Seventh Amendment: The Demise Of Jury Trials Under Article 5?, Margaret L. Moses

Indiana Law Journal

No abstract provided.

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Allocating The Burden Of Proof, Bruce L. Hay Jul 1997

Allocating The Burden Of Proof, Bruce L. Hay

Indiana Law Journal

No abstract provided.

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