Constitutional Law Commons^™

What Is A Tragedy Of The Commons? Overfishing And The Campaign Spending Problem, Shi-Ling Hsu

ExpressO

Over the thirty-seven years since its publication, Garden Hardin's "Tragedy of the Commons" has clearly become one of the most influential writings of all time. The tragedy of the commons is one of those rare scholarly ideas that has had an enormous impact in academia and is also commonly used outside of academia. In legal scholarship, the tragedy of the commons has been used to characterize a wide variety of resource problems, including intellectual property rights, overcrowding of telecommunications spectra, air and water pollution, and of course, the classic environmental commons problem, overfishing. But I suggest this embarrassment of citation …

Awakening An Empire Of Liberty: Exploring The Roots Of Socratic Inquiry And Political Nihilism In American Democracy, Maurice R. Dyson

ExpressO

This book review timely examines Cornel West’s latest sequel to his 1992 best seller, Race Matters. In Democracy Matters, West unflinchingly examines the waning of democratic energies and nihilistic practices of private and public sector in our present age of democracy. This review takes a critical examination of the logic underpinning West’s arguments, his nomenclature of various nihilism plaguing our society, the sometimes clumsy employment of literary devices and his thesis regarding the ‘niggerization’ of America after 9/11 that can serve as a basis for unifying collective action against imperialism. West makes a compelling argument that the public needs to …

Congressional Oversight Of Counterterrorism And Its Reform, Robert F. Blomquist

ExpressO

No abstract provided.

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, 88 Minn. Law Rev. 1233, Suzanne B. Goldberg

ExpressO

Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court’s rhetorical support for morals-based lawmaking and the Court’s jurisprudence. In taking this approach, the article responds to a central post-Lawrence question regarding the sufficiency of a government’s moral agenda as a justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.

The article develops several explanations for this avoidance of explicit morals …

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

Thinking Outside The Pandora's Box: Why The Dmca Is Unconstitutional Under Article I §8 Of The U.S. Constitution, Joshua L. Schwartz

ExpressO

No abstract provided.

Rules Of The Game: The "Play In The Joints" Between The Religion Clauses, Sharon Keller

ExpressO

Locke v. Davey is an exemplar of the new generation of Establishment clause cases that, particularly in Zelman v. Simmons-Harris, have written into law a safe harbor, private choice, for governmental benefits that find their way into the coffers of religious institutions in amounts that are neither incidental nor trivial. In Locke the options presented in the private choice arguably infringed upon Free Exercise rights-- the dilemma that gives rise to the title of this article. Over the vigorous dissent of Justice Scalia, the Locke Court’s analysis of the permissibility of the conditioned benefit was based upon the argument that …

Common Constitutional Law, A. Daniel Feldman

ExpressO

This essay deals with a branch of New York Times v. Sullivan which appeared to make the question of whether the words were libelous a federal issue. The line of cases ends with Masson v. New Yorker Magazine, which decides that the meaning of the words is not a federal issue, but cites approvingly all the prior cases, which do exactly that. The ambiguity of cases leaves unresolved the status of the rule which underlies New York Times, which is that judges, not juries, are to determine the facts in First Amendment cases.

From Carlin’S Seven Dirty Words To Bono’S One Dirty Word: A Look At The Fcc’S Ever-Expanding Indecency Enforcement Role , Faith Sparr

ExpressO

The manuscript entitled: From Carlin’s Seven Dirty Words to Bono’s One Dirty Word: A Look at the FCC’s Ever-Expanding Indecency Enforcement Role examines whether the FCC, in the years since the Supreme Court’s 1978 decision in FCC v. Pacifica, has exceeded the limited holding that the Court rendered in that seminal case. Initially, the article focuses on the Pacifica holding itself, reminding the reader of the narrowness of the decision and pointing out some interesting limitations that the FCC appears to have forgotten in its recent race to crack down on speech it deems indecent. From that initial examination, the …

Towards An Establishment Clause Theory Of Race-Based Allocation After Grutter: Administering Race-Conscious Financial Aid, Maurice R. Dyson

ExpressO

The novel application of the Establishment Clause doctrine by way of analogy to race0based financial aid after Grutter and Grats, while not identical, speaks to real issue of neutrality that is implicit in the debate of administering race-based scholarships that should be truthfully acknowledged. There is no concern about improper university indoctrination of race as the Grutter court has already established race-based diversity as worthy of a compelling state interest. Moreover, there is no concern that a college or university would establish an imprimatur on race-based scholarships merely or solely because it identifies potential candidates meeting specified eligibility criteria which …

National Security Capps Individual Civil Liberties In Times Of Crisis, Matthew D. Greenwell

ExpressO

This note attempts to objectively compare and contrast instances of past national emergencies with the ongoing “war on terror;” from the Supreme Court’s World War II decision of Korematsu, through the Warren Court and the Communist threat, then ending with the Rehnquist Court’s recent decisions of Hamdi, Rasul, and Padilla. In addition, the Computer Assisted Passenger Pre-screening System [CAPPS II] is used as an illustration of a current erosion of individual rights as a result of the “war on terror.” Finally, the note concludes by suggesting that when the war-making branches, based on a perceived threat to national security, infringe …

The Rave Act: A Specious Solution To The Serious Problem Of Increased Ecstasy Distribution Within The United States That Is Unconstitutionally Overbroad, Erin Treacy

ExpressO

The RAVE Act amends the 1986 "Crackhouse Statute" on the assumption that electronic music concerts are comparable to crackhouses. This article submits that the rationale behind the former Crackhouse statute does not logically support the RAVE Act and that the new law, as enacted, is unconstitutionally overbroad, infringing upon First Amendment rights. This article shows that the “rave culture,” its associated drug use and electronic music performances (sometimes known as raves) are not inextricably linked. The article also explores policy arguments that may be asserted against the RAVE Act and provides suggestions on how to amend the existing statute to …

The Police Power Revisited: Phantom Incorporation And The Roots Of The Takings Muddle, Bradley C. Karkkainen

ExpressO

This article traces the roots of the current muddle in the Supreme Court’s regulatory takings jurisprudence to an ill-considered “phantom incorporation” holding in Penn Central v. New York (1978), the seminal case of the modern regulatory takings era. The Penn Central Court anachronistically misread a long line of Fourteenth Amendment Substantive Due Process cases as Fifth Amendment Takings Clause cases, misattributing to Chicago Burlington & Quincy v. Chicago (1897) (“Chicago B & Q”) the crucial holding that the Fifth Amendment Takings Clause applied to the states. Like other cases of its era, Chicago B & Q was decided strictly on …

Apprendi's Limits, Roger Craig Green

ExpressO

This article argues that Blakely v. Washington did not decide (explicitly or implicitly) whether the Federal Sentencing Guidelines are constitutional. It also claims that the best interpretation of Apprendi v. New Jersey would uphold the Guidelines because they do not result in a punishment above the crime of conviction's statutory maximum. The notion that statutory maxima are constitutionally important stems from separation of power principles. Congress, not the Commission, is responsible for defining crimes, and thereby for prescribing how much punishment is authorized by a jury's guilty verdict.

Speech As Conduct: Generally Applicable Laws, Illegal Courses Of Conduct, “Situation-Altering Utterances,” And The Uncharted Zones, Eugene Volokh

ExpressO

In many recent free speech controversies -- over crime-facilitating speech, hostile environment harassment, child custody decisions, doctors’ recommending medical marijuana to their patients, pro-jury-nullification advocacy, and more -- defenders of the speech restriction have argued that the speech isn’t really speech, but is instead tantamount to conduct. Sometimes people argue that there’s no First Amendment problem when speech is restricted under a generally applicable law that covers both speech and conduct. Sometimes they argue that speech may be punished if it’s “an integral part of conduct in violation of a valid criminal statute.” Sometimes they argue that the speech should …

Crime-Facilitating Speech, Eugene Volokh

ExpressO

Many recent free speech controversies -- over Patriot Act subpoenas, contract murder manuals, encryption and decryption algorithms, contributory copyright infringement, publication of abortion providers’ names, discussions of gaps in security systems, certain kinds of invasion of privacy lawsuits, online term paper mills, and more -- turn out to be special cases of a general problem: Should there be a new First Amendment exception for speech that gives criminals information that can help them commit crimes? And, if so, how broad or narrow should this exception be?

Surprisingly, scholars have almost entirely ignored these broad questions, and the Supreme Court has …

A Third Parallel Primrose Path: The Supreme Court's Repeated, Unexplained, And Still Growing Regulation Of State Courts' Criminal Appeals, Russell M. Coombs

ExpressO

Recently the United States Supreme Court has ruled, in a series of cases beginning with Ornelas v. United States, that decisions of certain mixed questions of federal constitutional law and fact, arising under various amendments, must be reviewed de novo on direct appeal. The Court has not specified that state courts are bound by these rulings, but has used conflicting language relevant to that issue. Faced with this ambiguity, the courts of a number of states have departed from their prior practices by following these rulings, at least some because they consider themselves bound to do so, and have extended …

A State's Power To Enter Into A Consent Decree That Violates State Law Provisions: What "Findings" Of A Federal Violation Are Sufficient To Justify A Consent Decree That Trumps State Law?, David W. Swift

ExpressO

In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may …

'You'd Better Be Good': Congressional Threats Of Removal Against Federal Judges, Marc O. Degirolami

ExpressO

In the attached article, I argue that congressional threats of removal against federal judges are increasing in prevalence and forcefulness and that as a result the strained relationship between the judiciary and Congress – a topic of recent attention and debate – will continue to deteriorate in the coming years. I examine two bills, the Feeney Amendment to the PROTECT Act and House of Representatives Resolution 568 (in which Congress would disavow citation in judicial decisions to foreign law), to demonstrate this thesis.

I next ask what explains the phenomenon of congressional threats of removal, deploying first Thomas Hobbes’ state-of-nature …

A Case Study In The Banning Of Political Parties: The Pan-Arab Movement El Ard And The Israeli Supreme Court, Ron Harris

ExpressO

Attempts to outlaw political groups that are alleged to approve the use of violence, to limit the expression of views that challenge the core values of democratic nation-states, and to ban radical, separatist, or religious political parties are more widespread in recent years than at any other time since 1945. They gave rise in the last few years to litigation in Constitutional Courts and Supreme Courts in Spain, Germany, Turkey, France, Israel, and Latvia, as well as in the European courts.

The present article tells the story of the encounter in the years 1959-1965 between the Pan-Arab national movement El …

The Birth Of A Logical System: Thurman Arnold And The Making Of Modern Administrative Law, Mark Fenster

ExpressO

Much of what we recognize as contemporary administrative law emerged during the 1920s and 1930s, a period when a group of legal academics attempted to aid Progressive Era and New Deal regulatory efforts by crafting a legitimating system for the federal administrative state. Their system assigned competent, expert institutions—most notably administrative agencies and the judiciary—well-defined roles: Agencies would utilize their vast, specialized knowledge and abilities to correct market failures, while courts would provide a limited but crucial oversight of agency operations. This Article focuses both on this first generation of administrative law scholarship, which included most prominently Felix Frankfurter and …

Brown And Tee-Hit-Ton, Earl Maltz

ExpressO

No abstract provided.

Another Limit On Federal Court Jurisdiction? Immigrant Access To Class-Wide Injunctive Relief, Jill E. Family

ExpressO

This article examines a statute that may embody another limit on the power of the federal courts. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) implemented sweeping changes that substantially restrict federal court review of administrative immigration decisions. One provision implemented as a part of IIRIRA, 8 U.S.C. § 1252(f)(1), appears, at least at first glance, to prohibit courts from issuing class-wide injunctive relief in immigration cases. Such a restriction would be significant because federal courts have issued class-wide injunctions in the past to stop unconstitutional immigration practices and policies of the federal government. The Supreme Court …

The Same Side Of Two Coins: The Peculiar Phenomenon Of Bet-Hedging In Campaign Finance, Jason Cohen

ExpressO

The paper addresses the propensity of large donors to give to competing candidates or competing party organizations during the same election cycle – for example, giving money to both Bush and Kerry during the 2004 presidential race – a practice here termed 'bet-hedging.' Bet-hedging is analyzed in strategic and game-theoretic terms. The paper explores the prevalence of bet-hedging, the possible motivations behind the practice, and the informational concerns surrounding it. The paper argues that bet-hedging, out of all donation practices, carries with it a uniquely strong implication of ex post favor-seeking: if a donor prefers one side over the other, …

On Brown V. Board Of Education's 50th Anniversary: To Integrate Or Separate Is Not The Question, Thomas Kleven

ExpressO

By ending official apartheid, Brown represented a great victory in the struggle for racial justice in the United States. Following more than a decade of inaction as a result of its “all deliberate speed” formulation, and in response to the then prevailing sentiment among the proponents of Brown, the Supreme Court began to push for the integration of school districts that engaged in segregation by law or practice. This integrationist push lasted from the late 1960s to the late 1970s. Beginning in the mid-1970s the Court began to limit the remedies for segregation by law or practice, and beginning in …

Affirmative Action: More Efficient Than Color Blindness, Abraham L. Wickelgren

ExpressO

One of the most compelling reasons against affirmative action is the principle of color blindness, that is, the idea that race is an irrelevant characteristic that should not affect higher education admissions or hiring decisions. Despite its intuitive appeal, this paper shows that adherence to this principle impedes economic efficiency when there has been past discrimination based on color. Past discrimination creates inefficiencies in the economy that persist across generations. Because of this persistence, race is not an irrelevant characteristic for firms and universities looking to hire or admit the best candidates. Affirmative action, not color-blindness, is necessary to reduce …

The Alley Behind First Street, Northeast: Criminal Abortion In The Nation's Capital 1873-1973, Douglas R. Miller

ExpressO

The thirtieth anniversary of Roe v. Wade found our country no less divided over abortion than it was during the era of its prohibition. As the bitter struggle over judicial nominations throughout the present administration suggests, abortion’s future remains at the forefront of American political debate.

In their push for increased limitations, abortion opponents generally overlook the historical consequences of prohibition. Abortion rights proponents often invoke history in their opposition to new restrictions, but tend to do so superficially, and only in a manner that supports their position.

This article attempts a more complex study of criminal abortion’s legal and …

“Politics As Markets” Reconsidered: Economic Theory, Competitive Democracy And Primary Ballot Access , David N. Schleicher

ExpressO

No abstract provided.

Separation Of Powers And The Commander In Chief: Congress’S Authority To Override Presidential Decisions In Crisis Situations, Reid Skibell

ExpressO

This paper represents an in-depth examination of Separation of Power issues raised in the context of the Legislative and Executive Branch’s exercise of their War Powers. Specifically, the paper considers the argument raised by the Bush Administration that Congress cannot constitutionally infringe on the President’s exercise of his Commander in Chief Power in the fight against terrorism. Such an argument would effectively insulate most Presidential decisions related to terrorism from Congressional oversight. The implication being that even if Congress wanted to accomplish something like ending the detainment of detainees at Guatanamo Bay it would be outside their Constitutional authority. The …

“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin

ExpressO

No abstract provided.