Constitutional Law Commons^™

Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein

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This article examines an important and recurring question that courts frequently resolve, but rarely analyze: whether taxing and spending measures should be viewed together when a state imposes a nondiscriminatory tax but also affords relief to some taxpayers through government spending. The answer to this question will often determine whether the state's actions violate constitutional strictures against discriminatory taxation. The taxing measure and the spending measure will generally pass muster if viewed in isolation. After all, courts rarely invalidate nondiscriminatory taxing measures on constitutional grounds. And true government spending measures, if considered alone, plainly fall outside the reach of constitutional …

Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein

Scholarly Works

This article examines an important and recurring question that courts frequently resolve, but rarely analyze: whether taxing and spending measures should be viewed together when a state imposes a nondiscriminatory tax but also affords relief to some taxpayers through government spending. the answer to this question will often determine whether the state's actions violate constitutional strictures against discriminatory taxation. The taxing measure and the spending measure will generally pass muster if viewed in isolation. After all, courts rarely invalidate nondiscriminatory taxing measures on constitutional grounds. And true government spending measures, if considered alone, plainly fall outside the reach of constitutional …

State User Fees And The Dormant Commerce Clause, Dan T. Coenen

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This Article considers the interplay of two central tenets of the U.S. Supreme Court's dormant commerce clause jurisprudence. The first of these principles exempts from the general proscription on discrimination against interstate commerce a state's actions as a "market participant," rather than as a "market regulator." The second principle, in contrast, renders the nondiscrimination rule fully applicable to the imposition of state "user fees."

Part II of this Article shows why these doctrinal pronouncements stand in an uneasy tension. It also explains how this tension revealed itself in Oregon Waste Systems, Inc., v. Department of Environmental Quality of Oregon, when …

Restitution Regimes In Post-Communist Eastern Europe: A Legal Analysis, Sophia Von Rundstedt

LLM Theses and Essays

When the Communist regimes in Central and Eastern Europe collapsed at the end of the last decade, the opposition, which had been united in their goal to defeat Communism, quickly disintegrated into a variety of factions. One of their tasks was to decide on enacting a constitution, in order to stabilize and entrench the new democratic institutions. Apart from establishing the legal framework for democracy, politicians had to develop strategies to convert the state-run economy into a free-market economy. Such a transition required as a first step the privatization of state property. Legal reform of property rights raises the question: …

Of Pitcairn's Island And American Constitutional Theory, Dan T. Coenen

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Few tales from human experience are more compelling than that of the mutiny on the Bounty and its extraordinary aftermath. On April 28, 1789, crew members of the Bounty, led by Fletcher Christian, seized the ship and its commanding officer, William Bligh. After being set adrift with eighteen sympathizers in the Bounty's launch, Bligh navigated to landfall across 3600 miles of ocean in "the greatest open-boat voyage in the history of the sea." Christian, in the meantime, recognized that only the gallows awaited him in England and so laid plans to start a new and hidden life in the South …

Constitutional Torts, Common Law Torts, And Due Process Of Law, Michael L. Wells

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Government officers may harm persons in many ways. When an official inflicts a physical injury, causes emotional distress, publishes defamatory statements, or initiates a malicious prosecution, the victim's traditional recourse is a tort suit brought under common law or statutory principles. But an alternative to ordinary tort may also be available. The growth of damage remedies for constitutional violations in the decades following Monroe v. Pape has encouraged litigants to frame their cases as breaches of the Constitution. These litigants may sue for damages under 42 U.S.C. § 1983 when the offender is a state employee, or assert the damages …

Equal Protection Of The Laws: Recent Judicial Decisions And Their Implications For Public Educational Institutions, Anne Dupre, John Dayton

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This article reviews recent judicial decisions concerning the Equal Protection Clause and provides an analysis of their implications for public educational institutions. The article begins by giving a brief historical overview of the Equal Protection Clause, its application to the states, and describes the three-tiered approach to challenges alleging government denial of equal protection of the laws. Recent applications of each tier are addressed by discussing Adarand v. Pena, Hopwood v. Texas, U.S. v. Virginia, and Romer v. Evans. The article concludes by noting that these recent cases have added to uncertainty concerning the Court’s interpretation of the Equal …

Judicial Review As A Tool For The Safeguard Of Human Rights: Prospects And Problems Of The U.S. Model In Malawi, Janet Laura Banda

LLM Theses and Essays

Judicial review is a judicial action that involves the review of an inferior legislative or executive act for conformity with a higher legal norm, with the possibility that the inferior norm may be invalidated or suspended if necessary. Although judicial review has been explicitly provided for in some written post-independence African constitutions, such review has not developed into a significant principle of African juridical democracy. This lack of development can be attributed to the emergence of dictatorships in the post-colonial era. However, Malawi’s weak judiciary system was remedied by the 1994 Constitution which gave the Malawian judiciary a central position, …

An Analysis Of The Personal Use Principle Under Copyright Law, Hsin-Chih Cheng

LLM Theses and Essays

Personal use is when an individual uses a copyrighted work for private purposes, such as learning or entertainment. Personal use is a right given in the Copyright Clause of the U.S. Constitution, however, an issue arises when the individual wants to make a copy of the copyrighted work. New technologies like photocopying and videotaping make this issue more prominent today. Some copyright owners think that the individual’s copying for private use is harmful to their potential market and they argue for compensation. Does the individual have the right under the personal use principle to reproduce the copyrighted work for private …

International Jurisdiction In Products Liability Cases (Analysis Of Asahi And Post-Asahi Cases), Tsutomu Kuribayashi

LLM Theses and Essays

With the increase of foreign trade, there has also been an increase in the number of foreign manufacturers and distributors involved in product liability litigation in the United States. In many cases, the products from these foreign manufacturers and distributors reach the forum states through the stream of commerce, and are distributed to the customers by regional distributors, wholesalers, and retailers. Therefore, in many product liability cases where defective products from these foreign manufacturers and distributors cause injuries to people in the United States, those foreign companies do not have a direct relationship with the forum states. In these cases, …

Federal Reserve: History, Purposes And Functions - An Analysis, Mukunda Lakshamanarao

LLM Theses and Essays

On December 23, 1913, President Woodrow Wilson signed into law the Federal Reserve Act. With this law, Congress established a central banking system which would enable the world’s most powerful industrial nation to manage its money and credit more effectively than ever before. The political and legislative struggle to create the Federal Reserve System was long and often bitter, and this final product in 1913 was the result of a carefully crafted and somewhat tenuous political compromise between national and regional powers. Since its founding, the Federal Reserve System has evolved to meet the needs of a changing financial system …

Fair Use In American And Continental Laws, Omar M.A. Obeidat

LLM Theses and Essays

Intellectual property, unlike tangible property, does not exclusively occupy one place at a designated time. Instead, intellectual property is composed of information which can be reproduced or used in multiple places at any given time. This fundamental difference between intellectual and tangible property is reflected in the legal provisions that regulate these types of property. There are two dominant theories that justify the legal protection of intellectual property: the individualistic European approach, and the commercial Anglo-American approach. Under the European approach, the protection of the creation is a natural right guaranteed to the author. In other words, natural law guarantees …

Permissible Accommodation Of Religion And The Alternative Burden, Ei Ichiro Takahata

LLM Theses and Essays

In this thesis, the author discusses the extent to which the government can afford to give accommodation within the limits of the Establishment Clause. In Chapter II, the author reviews the theory of the permissible accommodation referred to in the Supreme Court of the United States. In Chapter III, the author examines scholarly debates on the accommodation. Then, the author discusses German and Japanese law of the accommodation in Chapter IV. There, those cases suggest the possibility of alternative burdens on religious believers. The alternative burdens are considered the price of the accommodation. The author concludes that the government has …

Should Students Have Constitutional Rights? Keeping Order In The Public Schools, Anne Proffitt Dupre

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This Article focuses on how the Supreme Court's conception of the public school as either an institution of social reproduction or reconstruction, a conflict Professor Dupre maintains is deeply rooted in intellectual history, has affected the power that public schools have been afforded in matters of discipline and order. Professor Dupre argues that the Court -- by allowing the reconstruction model to influence its opinion for almost thirty years -- paved the way for the decline in school order and educational quality. Although Professor Dupre contends that the Court's recent repudiation of the reconstruction model in Vernonia School District 47J …

Copyright And Free Speech Rights, L. Ray Patterson, Stanley F. Birch, Jr.

Scholarly Works

By letter of 1 March 1993, the Copyright Compliance Office of the Association of American Publishers (AAP) informed a copyshop that it had “without prior permission, made multiple copies of excerpts of copyrighted works for distribution to students in course anthologies.” Stating that this copying was an infringement of copyright, the letter requested the copyshop to sign an enclosed agreement stating it would not commit such acts again and to pay a penalty of “$2,500 to help defray the costs of the AAP's copyright enforcement program in this matter and to impress on your business the need to operate in …

The Standard Of Review For The Voluntariness Of A Confession On Direct Appeal In Federal Court, Peter B. Rutledge

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Section I of this Comment reviews the Supreme Court's jurisprudence on confessions, provides a close reading of Miller v. Finton, 474 U.S. 104 (1985), and reviews the division among the federal circuits over the standard of review for voluntariness determinations on direct appeal. Section II analyzes the literature on standards of review and focuses on two vexing problems in this field-the application of law to fact (hereinafter "mixed questions") and the constitutional fact doctrine. These two issues frame the analysis of voluntariness determinations. Section III analyzes these determinations and defends the application of de novo review in cases on …

Commerce Clause Restraints On State Business Development Incentives, Walter Hellerstein, Dan T. Coenen

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In this Article, we explore the ill-defined distinction between the constitutional carrot and the unconstitutional stick in state tax, subsidy, and related cases. Part I examines the restraints that the Commerce Clause imposes on state tax incentives. It canvasses the general principles limiting discriminatory state taxation, explores the Court's decisions addressing state tax incentives, and proposes a framework of analysis for adjudicating the validity of such incentives. Part I concludes by considering the constitutionality of a variety of state tax incentives within our suggested framework and also under alternative approaches that courts might utilize. Part II examines the restraints that …

The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot

LLM Theses and Essays

Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These …

Punitive Damages For Constitutional Torts, Michael L. Wells

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Critics complain that punitive damages often serve no good purpose. Whatever the merit of this charge as a general proposition, it is not universally valid across the range of tort suits. This article examines the issues raised by punitive damages for constitutional torts and takes issue with the general failure of commentators on punitive damages to recognize differences between constitutional tort and common law torts. I shall argue that constitutional tort is one area where punitive damage awards are essential to the effective enforcement of our rights. Constitutional tort is a special domain, in which the policy issues that bear …

The Continental Moral Rights Doctrine And Its Applicability In The United States Copyright System, Oswaldo Jose Quintana

LLM Theses and Essays

In the last half of the twentieth century, international copyright protection has become of much greater concern as the copyright industry has become supranational. Treaties enacted in the last ten years such as the Berne Convention Implementation Act, the Uruguay Round Agreements Act, and the Agreement on Trade-Related Aspects of Intellectual Property Rights, provide the highest copyright protection available at the international level. Global piracy has declined in the last several years because of these provisions. However, the adherence by the United States to these treaties has caused controversy; some maintain that it represents a major overhaul of federal law …

Original Intent And Article Iii, Michael L. Wells, Edward J. Larson

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Article III of the United States Constitution sets limits on the ability of the legislature to expand or contract the jurisdiction of the federal courts. The Supreme Court has generally held that Article III's restraints on the power of the legislature to restrict the jurisdiction of the federal courts are few and extremely permissive. Many scholars, however, argue that Article III imposes some strong limitations on the legislature's ability to define federal jurisdiction. Strangely, both sides of the debate rely on originalist arguments. This Article argues that reliance on the Framers' intent to resolve issues of federal courts law is …

Commerce Clause Restraints On State Taxation After Jefferson Lines, Walter Hellerstein, Michael J. Mcintyre, Richard D. Pomp

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The Supreme Court's 1977 decision in Complete Auto Transit, Inc. v. Brady signaled a paradigmatic shift in the Court's approach to state tax adjudication under the dormant Commerce Clause. In Complete Auto, the Court repudiated the formalistic school of interpretation that once had governed Commerce Clause analysis of state taxation because it bore ‘no relationship to economic realities.’ In its place, the Court embraced a decisional framework that ‘considered not the formal language of the tax statute but rather its practical effect.’ In furtherance of this objective, the Court suggested a four-part test to guide the constitutional analysis of state …

Constitutional Torts: Combining Diverse Doctrines And Practicality, Thomas A. Eaton, Michael Wells

Scholarly Works

Constitutional Torts is, in part, a response to our sense that the upper level curriculum could be improved by courses that bring together areas of doctrine that are often studied in isolation. We think there is substantial value in bringing together seemingly disparate areas of doctrine that bear on a common real-world problem. Students benefit from learning how to put together concepts from different substantive areas in order to solve problems they will face in practice.

The Fourth Amendment Protection Against Unreasonable Searches And Seizures And The French Experience, Florence Sophie Boreil

LLM Theses and Essays

Under the American approach to criminal justice, freedom of the individual is of the utmost importance. The American criminal justice system reflects a distrust of abuse of power and an emphasis on protection of personal freedom. However, the French take a contrary approach; under French law, freedom is achieved through the State. This paper examines the protection of individuals’ rights in American and French criminal procedure. Focus will be given to tracking the police investigatory powers in each country through searches and seizures, and the impact that those powers have on individuals’ rights. This paper will assert that the police …

The Impact Of The Garcia Decision On The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen

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In National League of Cities v. Usery, the Supreme Court recognized a strong state-sovereignty-based limit on Congress's exercise of its commerce power. In Garcia v. San Antonio Metropolitan Transit Authority, however, the Court overruled National League of Cities, relying in part on past difficulties in trying to distinguish between protected state “governmental” activities and unprotected state “proprietary” activities. In the wake of Garcia, commentators have urged that its reasoning undermines the Court's longstanding exemption of state proprietary activities from dormant Commerce Clause challenge under the so-called “market-participant” doctrine.

In this article, Professor Dan Coenen refutes this argument by showing that …

Judicial Protection Of The Individual Against Administrative Actions In The United States And In Germany, Joerg Nikolaus Uhl

LLM Theses and Essays

From the Preamble of the U.S. Constitution which begins “We the people…,” the focus of the American legal system is clear. The individual and personal freedom are the primary concern for protection under U.S. law. Conversely, the German legal system places its focus on the preservation of the democratic system. This difference and the weight the U.S. places on separation of powers, whereas the executive and legislative branches are closely related in Germany, have combined to produce many differences between the U.S. and German political and legal systems. This paper analyzes these differences, especially with regards to administrative agencies and …

Overview Of The Role Of Precedent In The Legal System Of The United States, Ana Elena Fierro

LLM Theses and Essays

Traditionally, legal systems have been classified as either Common Law or Civil Law; scholars distinguish these systems based on their origins, as well their attitudes towards stare decisis. Common law considers precedent as a source of binding rules, while civil law does not. However, some scholars consider the methods for legal reasoning to be almost the same in every legal system. These scholars maintain that regardless of the source of law in a particular country, once a judge determines that the facts of one case are similar to those regulated by a certain rule, the judge will apply that particular …

West Lynn Creamery And The Constitutionality Of State Tax Incentives, Walter Hellerstein

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One of the more perplexing questions that has surfaced from time to time in the state tax field is how a constitutionally benign tax incentive program designed to attract industry to a state is to be distinguished from an unconstitutionally discriminatory taxing scheme that “forecloses tax-neutral decisions” and “provides a direct commercial advantage to local business.” On one hand, the U.S. Supreme Court has expressed the view that its decisions do “not prevent the States from structuring their tax systems to encourage the growth and development of intrastate commerce and industry.” On the other hand, the Court has frequently invalidated …

Legal Foundations And Institutional Framework Of The Monetary Union In Europe And In The United States, Johan Van Den Cruijce

LLM Theses and Essays

An economic and monetary union (EMU) is an area where there is complete freedom of movement of persons, goods, services, and capital. The financial markets in an EMU are completely integrated while the national currencies are conventional and have fixed exchange rates. Ultimately the national currencies may be replaced by a common currency and there will be one monetary policy. The EMU is considered to be the highest form of economic integration. This paper examines two examples of a monetary union; the first part focuses on the blueprint for a European monetary union as laid out in the Treaty on …

Copyright And "The Exclusive Right" Of Authors, L. Ray Patterson

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The purpose of this essay is to define and explore the meaning of "the exclusive Right" in the Intellectual Property Clause of the United States Constitution as related to the promotion of learning, the public domain, and authors. Without a clear understanding of this key term, one is likely to be unaware that lower federal courts are continually making rulings contrary to both the Copyright Clause and the Copyright Act. The classic example is the judicially created sweat-of-the-brow copyright, which in 1991 -- after seventy-five years of precedent -- the Supreme Court decreed to be unconstitutional. Other bad precedents, such …