Constitutional Law Commons^™

How Useful Is Civil Rico In The Enforcement Of Criminal Law?, Gerard E. Lynch

Faculty Scholarship

The title of this paper asks what appears to be a simple and important question: Just how much does the availability of extensive private civil remedies for violation of the RICO statute add to the effort to ensure compliance with the norms of criminal law? These remarks address only civil RICO actions by private plaintiffs. The once-rare, but increasingly frequent, civil RICO actions brought by the United States present very different issues. This question is, of course, only a part of any assessment of the value of civil RICO. One may conclude that civil RICO is of little or no …

The Tolerant Society: A Response To Critics, Lee C. Bollinger

Faculty Scholarship

In writing The Tolerant Society I was, and yet remain, interested in the treatment of speech behavior in this country, a treatment notably more liberal than in other Western democracies. Liberality, however, is not its only surprising or distinguishing hallmark; so too is how the world is characterized under the free speech concept.

For some time, even after I began teaching in the first amendment area, the scope and nature of protection afforded speech seemed to me obviously right. But the more I thought about it, the more it seemed to me quite extraordinary. Existing free speech theory provided less …

O'Er The Land Of The Free: Flag Burning As Speech, Kent Greenawalt

Faculty Scholarship

I am honored to lecture at this school, which has a number of friends, and a much larger circle of scholars whose work I admire. I am honored to lecture in the memory of Melville Nimmer, one of the country's leading thinkers on freedom of speech as well as its foremost expert on copyright. I met Professor Nimmer only once, at a lunch with Vince Blasi. My recollection of the lunch is distinct. Gently and in the most friendly way, but with irrefutable logic, they showed me that a position I had held for more than a decade about immigration …

Harmless Error And The Valid Rule Requirement, Henry Paul Monaghan

Faculty Scholarship

Nearly a decade ago in the pages of this journal, in discussing the nature of overbreadth challenges, I drew attention to what may be characterized as the "valid rule requirement." A defendant in a coercive action always has standing to challenge the rule actually applied to him. This means that he can resist sanctions unless they are imposed in accordance with a constitutionally valid rule, whether or not his own conduct is constitutionally privileged. The valid rule requirement focuses upon the rule as applied to the defendant by the jury instructions. In Pope v. Illinois the Court held that harmless …

"Were There No Appeal": The History Of Review In American Criminal Courts, David Rossman

Faculty Scholarship

The contemporary criminal justice system is guided, in large part, from the top down. A great deal of the force that drives the "terrible engine" of the criminal law is supplied by courts that consider cases on review after a defendant has been convicted.

Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

Part I critiques the Report's insistence that accurate fact finding exhausts, or nearly exhausts, the objectives of criminal justice, identifies the fundamental role of the Bill of Rights in the American political order, and situates federal habeas corpus within that framework. Part II traces the Report's historical review of the federal habeas jurisdiction and critiques the Report's too-convenient reliance on selected materials that, on examination, fail to undermine conventional understandings of the writ's development as a postconviction remedy. Part III responds to the Report's complaints regarding current habeas corpus practice and refutes contentions that the habeas jurisdiction overburdens federal dockets …

Shutting Down The Government, Alan L. Feld

Faculty Scholarship

Actions of the federal government cost money. Legislative processes that specify the amounts and purposes of governmental expenditures control the scope and content of government actions.¹ To paraphrase Chief Justice Marshall, the power to withhold spending involves the power to destroy.²

Those involved in the legislative process ordinarily do not engage in wholesale or sudden dismantling of government activities through unheralded failures to provide funds. While disputes over funding constitute a regular part of the nation's political activity, these controversies usually concern adjustments in the level of spending and of agency operations. A decision to terminate an agency …

The Continued Importance Of The Maryland Declaration Of Rights, William L. Reynolds

Faculty Scholarship

An analysis of the origins and development of Maryland's 'Declaration of Rights.'

Choosing Judges The Democratic Way, Larry Yackle

Faculty Scholarship

A generation ago, the pressing question in constitutional law was the countermajoritarian difficulty.' Americans insisted their government was a democratic republic and took that to mean rule by a majority of elected representatives in various offices and bodies, federal and local. Yet courts whose members had not won election presumed to override the actions of executive and legislative officers who had. The conventional answer to this apparent paradox was the Constitution, which arguably owed its existence to the people directly. Judicial review was justified, accordingly, when court decisions were rooted firmly in the particular text, structure, or historical backdrop of …

Free Speech And Private Law In German Constitutional Theory, Peter E. Quint

Faculty Scholarship

No abstract provided.

Beyond Parity: Section 1983 And The State Courts, Susan Herman

Faculty Scholarship

No abstract provided.

Dual Sovereignty, Federalism And National Criminal Law: Modernist Constitutional Doctrine And The Nonrole Of The Supreme Court, William W. Van Alstyne

Faculty Scholarship

This paper examines the growing movement away from the functional nature of federalism contained within the Constitution toward a federalist system that gives extensive discretion to Congress and is only limited by political checks. This political system of federalism has limited the role of the Court in national criminal law because of the deference the Court is expected to give Congress.

State Sovereignty And The Tenth And Eleventh Amendments, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Qualified Immunity In Section 1983 Cases: The Unanswered Questions, Kit Kinports

Faculty Scholarship

Part I of this Article describes the general policies underlying qualified immunity and the Court's decisions defining the scope of the defense. Part II then addresses two answered questions concerning Harlow v. Fitzgerald's impact on the substantive content of the qualified immunity defense: Is immunity available to the defendant who actually knows that her conduct is infringing the plaintiff's constitutional rights, even if the law governing those rights is not yet clearly established? And should a court take into account the nature of the defendant's governmental responsibilities and other circumstances surrounding her conduct in determining whether the right she …

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Faculty Scholarship

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law – text and interpretation – to accommodate such developments?

Is Law Politics?, Philip Chase Bobbitt

Faculty Scholarship

Red, White, and Blue addresses the pervasive presence of five general theories of American constitutional law. These theories reflect particular jurisprudential ideologies governing, among other things, the legitimacy of certain arguments, the appropriateness of certain occasions for judicial intervention and the constitutional basis for judicial review. What makes this book interesting and important is that it provides an unwitting or at least unself-conscious example of the general theorizing it wishes to explain. For this reason, its descriptions of the particular family of theories that characterize American constitutional jurisprudence are distorted, while it disclaims any account of the particular set of …

Reimagining The Marshall Court, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Covert Operations, Lori Fisler Damrosch

Faculty Scholarship

As the Constitution begins its third century, the system of congressional oversight of covert action is only in its second decade. In the ancient history of covert action – before the intelligence oversight reforms of the l 970s – Congress did not involve itself in covert operations. After giving the Central Intelligence Agency standing authority to "perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct," Congress paid little attention to what the Executive did under this authority. The era of congressional noninvolvement came to an …

The Future And The First Amendment, Lee C. Bollinger

Faculty Scholarship

It is my honor and pleasure to deliver this year's Sullivan Lecture. I have an especially warm feeling toward this Law School. Two years ago, at the invitation of your Professor Distelhorst, I participated in the Capital Law School program for teaching American law to Japanese lawyers. For five stimulating weeks I enjoyed the intellectual and social company· of Japanese attorneys, while teaching them the outlines of American constitutional law. Twice a week, in the evening, for three continuous hours, and after a full work day, these dedicated lawyers would willingly become students again and suffer patiently through my highly …

Methods Of Constitutional Argument, Philip C. Bobbitt

Faculty Scholarship

The methods of constitutional argument1 that may be denominated, historical, textual, doctrinal, structural, prudential and ethical, have not grown according to a plan. They have grown up in the United States because of our history and traditions – the sort of people we have become and are still becoming. To that extent, they are arbitrary and contingent. They are not the same for every culture. I would be surprised if they were very different for Canada because Canadians and Americans share so much of the same legal tradition. One can, however, easily imagine cultures around the world where legal arguments …

Aids, Astrology, And Arline: Towards A Causal Interpretation Of Section 504, Gary S. Lawson

Faculty Scholarship

Section 504 of the Rehabilitation Act of 1973 provides that ‘[n]o otherwise qualified individual with handicaps shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under [any federal or federally funded program].’1 In School Board v. Arline,2 the Supreme Court held that a school teacher with a history of infectious tuberculosis was an ‘individual with handicaps' protected by section 504,3 and that the determination of whether she was ‘otherwise qualified’ to teach elementary school required a sound medical assessment of the risks …

Review Of Red, White, And Blue: A Critical Analysis Of Constitutional Law By Mark Tushnet, David B. Lyons

Faculty Scholarship

Mark Tushnet's new book offers no such counsel. Mainly a critique of interpretative theories, its conclusions are profoundly skeptical. Tushnet's central claim is that judicial review and constitutional theory cannot possibly perform their assigned functions, and that liberalism is to blame. This review will focus on those facets of the book.

The Search For An Author: Shakespeare And The Framers, James Boyle

Faculty Scholarship

No abstract provided.

What The Constitution Means By Executive Power, Charles J. Cooper, Orrin Hatch, Eugene V. Rowstow, Michael E. Tigar

Faculty Scholarship

No abstract provided.

Rethinking Harmless Constitutional Error, A. Kimberley Dayton

Faculty Scholarship

This article examines the increasing role of the Chapman Rule and its effect on the harmless error doctrine and outlines a coherent doctrine of constitutional error responsive to the purposes of the various constitutional protections afforded criminal defendants. Part I evaluates the Court's existing harmless error jurisprudence. Part II proposes a harmless error doctrine that, unlike the Court's approach, responds to constitutional values unrelated to truth determination. The last two parts of the Article address two problems precipitated by the use of outcome-oriented rules to define and remedy constitutional error. Part III discusses when such a rule should be used …

Unions And Urinalysis, Deborah A. Schmedemann

Faculty Scholarship

Many private employers seem to be busy deciding whether and how to test employees for drug use. Presumably most of these decisions are made by management acting alone. However, in unionized workplaces—one out of five private sector employees are represented by unions—federal labor law prescribes a different method. That method features collective bargaining by unions and management to set the rules, the use of a private third-party neutral to resolve disputes which arise under those rules (arbitration), and relatively little involvement by the government (the National Labor Relations Board, legislatures, and the courts). This system that labor law prescribes for …

The Committee On The Constitutional System Proposals: Coherence And Dominance, Philip Chase Bobbitt

Faculty Scholarship

I have been a fellow traveler of the Committee on the Constitutional System virtually since its inception; indeed, I believe I was present when Mr. Cutler first made the speech at the University of Texas that became, "To Form a Government." During all this time I have never been able to quite free myself from the conviction that his concerns were absolutely right and fundamental to our era. Nor have I been able to persuade myself that the reforms that he recommends justify a departure from the framers' conception. I suppose this is why I was selected to give a …

Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski

Faculty Scholarship

The purpose of this Comment is to examine the history of the enactment and early enforcement of the Civil Rights Act of 1866 from the perspective of the remedies Congress sought to provide to meet the problems that necessitated the legislation. Its main foci are the statute's enforcement provisions and their early implementation, an aspect of the history of the statute that has not been fully considered in relation to section one, the provision that has received the most scholarly attention. The occasion of this study is the Supreme Court's reconsideration of Runyon v. McCrary' in Patterson v. McLean Credit …

Luther Martin, Maryland And The Constitution, William L. Reynolds

Faculty Scholarship

Reviews the life and contributions of Maryland lawyer and scholar Luther Martin (1748-1826).

The Confirmation Process: Law Or Politics?, Henry Paul Monaghan

Faculty Scholarship

In testimony before the Senate Judiciary Committee, I argued (and still believe) that Judge Robert Bork possessed surpassing qualifications for an appointment to the Supreme Court. Subsequently, I became persuaded that my submission was incomplete. Additional argument was necessary to establish that my testimony, if accepted, imposed a constitutional duty on senators to vote for confirmation. To my surprise, further reflection convinces me that no such argument is possible.