Constitutional Law Commons^™

Who's Afraid Of Geneva Law?, Aya Gruber

Publications

According to many internationalists, the terrorism detention cases Hamdi v. Rumsfeld and Hamdan v. Rumsfeld are exemplary of a movement on the part of the Supreme Court toward greater incorporation of and respect for international law. Recent death penalty cases, statements of individual justices, and the increasing transnationalism of the Court's docket have lead many to believe, as Justice Ginsburg does, that the Court's "island or lone ranger mentality is beginning to change." This Article takes the contrary position that Hamdi and Hamdan are not internationalist because of their meticulous avoidance of the issue of Geneva Convention self-execution. Briefly, the …

An External Perspective On The Nature Of Noneconomic Compensatory Damages And Their Regulation, Ronald J. Allen, Alexia Brunet, Susan Spies Roth

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No abstract provided.

Students And Workers And Prisoners - Oh, My! A Cautionary Note About Excessive Institutional Tailoring Of First Amendment Doctrine, Scott A. Moss

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First Amendment free speech doctrine has been called "institutionally oblivious" for ignoring how different institutions present different legal questions. This Article analyzes a little-discussed phenomenon in the growing literature about institutional context in constitutional law. With certain institutions, the situation is not institutional obliviousness but the opposite: extreme institutional tailoring of speech doctrine. The burden of proof ordinarily is on the government to justify speech restrictions, but in three institutions--public schools, workplaces, and prisons--courts allow heavy speech restrictions and defer to government officials. Even if these institutions need to restrict speech unusually often, why do we need different doctrine--institutionally tailored …

Documents, Leaks, And The Boundaries Of Expression: Government Whistleblowing In An Over Classified Age, Susan Nevelow Mart

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No abstract provided.

The Colorado Constitution In The New Century, Richard B. Collins

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TABOR, gay marriage, pit bulls, guns, redistricting, ethics in government, school vouchers, and minimum wage have been on Colorado's constitutional agenda for the past seven years. Dale Oesterle and I authored a book-length study of the Colorado Constitution through 2001. This article reviews amendments and judicial decisions arising since. It should surprise no one that TABOR has generated by far the most decisions.

Crawford At Two: Testimonial Hearsay And The Confrontation Clause, H. Patrick Furman

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This article addresses the response of Colorado courts, and that of certain other jurisdictions, to the 2004 U.S. Supreme Court decision in Crawford v. Washington.

Academic Freedom: Disciplinary Lessons From Hogwarts, Emily M. Calhoun

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No abstract provided.

Raising The Red Flag: The Continued Relevance Of The Japanese Internment In The Post-Hamdi World, Aya Gruber

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In the years since the terrorist attacks of September 11th, the Japanese interment has re-emerged as a topic of serious discourse among legal scholars, politicians, civil libertarians, and society in general. Current national security policies have created concerns that the government has stepped dangerously close to the line crossed by the Roosevelt administration during World War II. Civil libertarians invoke the internment to caution policy-makers against two of the most serious dangers of repressive national security policies: racial decision-making and incarceration without process. Bush defenders advance several arguments in response to internment comparisons. The most conservative is an ardent defense …

The Juridical Structure Of Habitual Offender Laws And The Jurisprudence Of Authoritarian Social Control, Ahmed A. White

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No abstract provided.

Reshaping Federal Jurisdiction: Congress's Latest Challenge To Judicial Review, Helen Norton

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This Article examines growing congressional interest in a specific legislative check on judicial power: controlling the types of cases judges are empowered to decide by expanding and/or contracting federal subject matter jurisdiction. Congress has recently sought to shape judicial power through a range of proposals that variously enlarge and compress federal subject matter jurisdiction. In 2004, for example, the House of Representatives voted to strip federal courts of jurisdiction over constitutional challenges to the Defense of Marriage Act and the Pledge of the Allegiance. Just a few months later, the new 109th Congress undertook a groundbreaking expansion of federal subject …

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

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No abstract provided.

From "The Purpose" To "A Significant Purpose": Assessing The Constitutionality Of The Foreign Intelligence Surveillance Act Under The Fourth Amendment, Jennifer Sullivan

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No abstract provided.

Stepping Through Grutter's Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen Norton

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In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling - specifically, a public law school's interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well.

The switch to instrumental justifications for affirmative action appears a strategic response to the Court's narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning …

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

Rites And Rights In Afghanistan: The Hazara And The 2004 Constitution, Justin Deystone

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No abstract provided.

Considering Individual Religious Freedoms Under Tribal Constitutional Law, Kristen A. Carpenter

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As American Indian nations revitalize their legal systems, there is renewed interest in "tribal law," that is, the law of each of the Indian nations. Today, there is a particular focus on the subject of "individual rights" under tribal law. In tribal contexts, people are highly interested in the legal institutions and rules that govern their lives, especially as many tribal communities are experiencing a period of great political, social, and economic change. At the national level, the Supreme Court repeatedly expresses concern about whether individuals, especially non-Indians, will be treated fairly in tribal court. For scholars, individual rights under …

Two Wrongs Make A Right: Hybrid Claims Of Discrimination, Ming Hsu Chen

Publications

This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion, bring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II's hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts.

Diversity And The Practice Of Interest Assessment, Robert F. Nagel

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No abstract provided.

Not For Attribution: Government's Interest In Protecting The Integrity Of Its Own Expression, Helen Norton

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Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers' views are not mistakenly attributed to the government. Consider, for example, Virginia's efforts to ban the Sons of Confederate Veterans' display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of "hate" or "heritage," Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier "VIRGINIA." The Fourth Circuit was unpersuaded, holding that the …

Tacking Left: A Radical Critique Of Grutter, Daria Roithmayr

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No abstract provided.

You Can't Ask (Or Say) That: The First Amendment And Civil Rights Restrictions On Decisionmaker Speech, Helen Norton

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Federal, state, and local civil rights laws regulate private decisionmaking about whom an employer may hire or fire, to whom a landlord may rent an apartment, or to whom a creditor may extend credit. In prohibiting discriminatory conduct, however, these laws also limit the speech of those making these decisions. In this Article, Professor Norton explores how we might think about these civil rights laws in the context of the First Amendment, and their place within the Supreme Court's commercial speech jurisprudence. She concludes that the speech restricted by these laws may be characterized as falling outside the protection of …

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

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This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …

Justice White And Judicial Review, Philip J. Weiser

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No abstract provided.

The Right To Receive Information, Susan Nevelow Mart

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Ms. Mart examines the legal evolution of the right to receive information, particularly focusing on its application to libraries, beginning with the Supreme Court holding in Board of Education v. Pico, and followed by cases that have considered the meaning of Pico in a variety of library-related contexts.

Sacred Sites And Religious Freedom On Government Land, Richard B. Collins

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No abstract provided.

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

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No abstract provided.

Access, Adequacy And Equality: The Constitutionality Of School Fee Financing In Public Education, Daria Roithmayr

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This article explores the question of whether charging school fees for public education violates s 29 or s 9 of the Constitution. The article concludes that fees may be unconstitutional, for two reasons. First, charging school fees may violate learners' rights to basic education under s 29, because a fee-based financing system creates problems with both access and adequacy. Despite the availability of exemptions for the poor, the school fee regime of financing appears to completely bar access for some learners. It also unconstitutionally burdens the right to access for others by requiring families to expend significant portions of …

Locked In Inequality: The Persistence Of Discrimination, Daria Roithmayr

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In this Article, I argue that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, I make two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one--make it too difficult for an institution to discontinue discriminating. Even when institutional actors are filly committed to eradicating racial disparity, they may be constrained from …

Law And Information Platforms, Philip J. Weiser

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No abstract provided.

What Bush V. Gore Means For Elections In The 21st Century, Helen Norton

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No abstract provided.