Constitutional Law Commons^™

Politics, Doctrinal Coherence, And The Art Of Treatise Writing, Edward Rubin

Seattle University Law Review

Writing a treatise on constitutional law is both necessary and impossible. It is necessary because constitutional law, at least in the United States, is a common law subject. To be sure, it possesses a positive law basis, but that basis is very thin and the decisional law that has flowed from it is luxuriant and complex. Treatises organize and summarize bodies of decisional law, creating a coherent structure from the welter of incremental decisions, overlapping doctrines, and particularized holdings and dicta. Yet it is impossible to write a treatise about constitutional law. All treatises depend, for their effectiveness, upon a …

Cases Versus Theory, Richard B. Collins

Seattle University Law Review

Past reviewers have noted that the large modern market for American constitutional law casebooks was not served by much diversity in approaches to the subject. More recently there has been some divergence, and teachers have more choices. Cohen & Varat’s <em>Constitutional Law: Cases and Materials</em> has changed least in the intervening years and continues to serve its part of the market very well. Case editing is excellent, and selection is good. So if you liked the former standard, it remains a sound choice, and if you did not, you will have moved on. Notable differences among constitutional law casebooks fall …

Problem Solving And Storytelling In Constitutional Law Courses, William A. Kaplin

Seattle University Law Review

The author’s primary methods to teach Constitutional Law are problem solving and storytelling. He selected Farber, Eskridge, and Frickey’s Constitutional Law: Themes for the Constitution's Third Century and continues to use it in part because it includes both stories and problems. The author also selected this particular casebook because it places the individual rights materials before the materials on federal powers. He wanted to experiment with this reversed order and thus far has been satisfied – largely because the rights materials engage student interest better than the powers materials. They also set a more contemporary and practical tone for the …

Mastering Modern Constitutional Law, Thomas E. Baker

Seattle University Law Review

Constitutional Law is “tough law.” It is tough to master – tough to teach and tough to learn. There are several reasons for this thorough difficulty. First, it is not an exaggeration to say that the fate of the nation is often at stake in constitutional cases and controversies, and constitutional decisions have shaped our history as a people. Second, we Americans can lay claim to inventing the field, and we have been continuously preoccupied with reinventing it for more than two centuries of applied political philosophy. Third, the Supreme Court is one of the most fascinating institutions inside or …

The Quest To Find The Meaning Of The First Amendment, Mark C. Alexander

Seattle University Law Review

Professor William Van Alstyne has been a prolific and influential scholar, discussing First Amendment questions throughout his career. He has authored dozens of law review articles that are frequently cited in varying contexts, including at least twenty cites in U.S. Supreme Court opinions. He also has done what few others have done with his scholarly agenda by writing consistently and powerfully on the major aspects of the First Amendment – Free Speech, Press, and Religion – and their interrelation. He has added to his numerous contributions by providing a thorough and insightful casebook, First Amendment Cases and Materials, which …

Theme And Variations, Hugh D. Spitzer, Charles W. Johnson

Seattle University Law Review

State constitutions are worth the attention. They are, and have always been, different from the United States Constitution. Because state constitutions are typically easier to replace or amend than the United States Constitution, they reflect the political movements that have swept the country from time to time. As Professor Tarr has observed, provisions based in Jacksonian Democracy, Populism, and the Progressive movement have caused a "layering" in many state documents, which has affected both substance and interpretation." This makes the study of state constitutions interesting, and important too, because the themes might be similar from state to state, but the …

Constitutional Conflicts: The Perils And Rewards Of Pioneering In The Law School Classroom, Derrick Bell

Seattle University Law Review

The challenge in teaching Constitutional Law is to teach the doctrine while puncturing the myths. It is not an easy task. Americans treat the Constitution as a hallowed document created by men so divinely inspired that the document they produced in 1787 has been amended less than three dozen times. They might add that because of a number of factors, including those amendments, there are now only about 300 operative words in the Constitution, and that most litigation has centered about the meaning of a dozen or so terms: "due process," "cruel and unusual punishment," "commerce," "free exercise," "commander- in-chief," …

The Violence Against Women Act Of 1994: Connecting Gender-Motivated Violence To Interstate Commerce, Judi L. Lemos

Seattle University Law Review

This Comment explores whether the Supreme Court will grant certiorari in the Brzonkala v. Virginia Polytech and State University, and whether the Court will uphold the Violence Against Women Act (VAWA) as a constitutional use of the commerce power. Part I explains the provisions of VAWA. Part II scrutinizes the development of Commerce Clause jurisprudence, which culminated in the Lopez decision. Part III analyzes the panel's Fourth Circuit ruling in Brzonkala. Part IV reviews the Supreme Court's handling of post-Lopez Commerce Clause cases and discusses whether the Court will grant certiorari to a challenge of VAWA's constitutionality. …

Survey Of Washington Search And Seizure Law: 1998 Update, Justice Charles W. Johnson

Seattle University Law Review

This Survey, as did the previous Surveys, summarizes the predominant treatment of search and seizure issues under the Fourth Amendment and under article I, section 7 of the Washington State Constitution to the extent that this state's provision is interpreted differently from the federal provision. The Survey focuses primarily on substantive search and seizure law in the criminal context; it omits discussion of many procedural issues.

Dropping Anchor: Defining A Search In Compliance With Article I, Section 7 Of The Washington State Constitution, Daniel J. Clark

Seattle University Law Review

Section II examines State v. Myrick itself, including the Washington Supreme Court's path that led to that decision, the facts of the case, its reasoning, and its holding. Section III discusses the reaction to and effects of Myrick, including the seemingly disingenuous and inconsistent cases that have followed Myrick. Section IV outlines a proposal that more precisely defines a search in Washington, discussing the sources of the proposed test, examining how it would help guide Washington courts, and explaining which cases would be decided differently using the proposed standard.

Leaving Well Enough Alone—Why The "Would Have" Standard Works Well For Determining Pretext Stops In Washington State: A Critical Analysis Of The Whren Decision, Kelly Montgomery

Seattle University Law Review

This Note argues that the "could have" standard makes a mockery of the probable cause protections provided by the Fourth Amendment and that the Washington courts should not adopt that standard. Instead, because Washington courts have traditionally held that Article 1, Section 7, of the Washington Constitution provides broader protection than the Fourth Amendment of the Federal Constitution, the Washington courts should continue to use the "would have" standard to determine whether a stop is pretextual under Article 1, Section 7.11. Part II of this Note briefly describes the applicable search and seizure doctrine and tracks the split in the …

Affirmative Action California Style—Proposition 209: The Right Message While Avoiding A Fatal Constitutional Attraction Because Of Race And Sex, L. Darnell Weeden

Seattle University Law Review

This Article will analyze the Equal Protection Clause in relation to the government's ability to classify and will discuss whether race is a prohibited classification. The author will closely critique the case of Coalition For Economic Equity v. Wilson, which challenges the constitutionality of Proposition 209 because of its political burdens on interests important to racial minorities and women. The author will argue that Proposition 209's Equal Protection standard should be illicit state action rather than political burdens. Finally, the author will critique the Wilson court's understanding of violations of the Equal Protection Clause. This understanding is rejected here …

Bridging The Analogy Gap: The Internet, The Printing Press And Freedom Of Speech, Jonathan Wallace, Michael Green

Seattle University Law Review

The Supreme Court will bring the highest degree of clarity to the Internet freedom of speech debate if, in ACLU v. Reno, it sets forth the operative metaphor for freedom of speech and applies the metaphor in conjunction with an appropriate analogy for the technology.Part I of this Article discusses judicial decision-making tools with an emphasis on the use of analogy and the importance of applying legal precedents in a manner which is consistent and logical. Part I also discusses the use of metaphor in judicial decisionmaking and illustrates how operative metaphors for free speech have served to provide …

Double Jeopardy—Civil Forfeitures And Criminal Punishment: Who Determines What Punishments Fit The Crime, Barbara A. Mack

Seattle University Law Review

This Article will attempt to distill from this confusion a meaningful double jeopardy policy, applicable to parallel civil and criminal proceedings, that takes into account the history of double jeopardy, recent changes in statutory law, and the contemporary chaotic state of parallel civil and criminal proceedings. Under current law, double jeopardy protects against three abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. This Article will show that the multiple punishments prong has little basis in law, other than reliance …

Product Liability Law In The Federal Arena, Sherman Joyce

Seattle University Law Review

The law of product liability has been created by state judges and legislatures. Although not widely noticed, this tradition changed when Congress enacted the General Aviation Revitalization Act of 1994. That legislation established an eighteen-year statute of repose for claims brought by non-commercial passengers injured or killed in accidents involving light aircraft. Until that time, product liability law had been exclusively a function of state law. Nevertheless, product liability reform legislation has been the subject of extensive examination and scrutiny by Members of the United States Congress for one and a half decades. This Article analyzes the constitutional underpinnings for …

When The Constable Blunders: A Comparison Of The Law Of Police Interrogation In Canada And The United States, Robert Harvie, Hamar Foster

Seattle University Law Review

This Article explores the Supreme Court of Canada's use of the Charter of Rights and Freedoms in limiting police interrogations and compares its case decisions with cases from the Supreme Court of the United States. Part II of this Article examines the purposes and policies underlying sections 10(b), 7, and 24(2) of the Charter. Part III then examines the application of sections 10(b) and 7 in situations where (1) suspects are interrogated by uniformed police officers or other persons known to be in authority, and (2) suspects are interrogated surreptitiously by persons not known to be in authority. In both …

The Denial Of A State Constitutional Right To Bail In Juvenile Proceedings: The Need For Reassessment In Washington State, Kathleen A. Baldi

Seattle University Law Review

Article I, section 20 of the Washington Constitution states that "[a]ll persons charged with crimes shall be bailable by sufficient sureties, except for capital offenses when the proof is evident, or the presumption great." Despite seemingly unequivocal language that this constitutional provision is applicable to "all persons," the Washington Supreme Court, in Estes v. Hopp, declared that juveniles do not have a constitutional right to bail. The Estes court engaged in little constitutional analysis, but instead, reasoned that juvenile proceedings are civil in nature and that article 1, section 20 applies only in criminal proceedings. Central to the Estes …

The Double Jeopardy Implications Of In Rem Forfeiture Of Crime-Related Property: The Gradual Realization Of A Constitutional Violation, Andrew L. Subin

Seattle University Law Review

Over the past decade, the government has escalated its "war on drugs." Although the "war" has not decreased drug use or limited the availability of drugs on the street, the government continues to sacrifice the constitutional rights of its citizens in an effort to escalate the hostility. Since the "zero tolerance" policy of the Reagan Administration, the government has relied heavily on the forfeiture of property related to drug crimes as a tool to deter and punish the illegal distribution of drugs. The federal forfeiture statute, 21 U.S.C. § 881, allows the government to seize any property used to facilitate …

Toward A Pragmatic Model Of Judicial Decisionmaking: Why Tort Law Provides A Better Framework Than Constitutional Law For Deciding The Issue Of Medical Futility, Brent D. Lloyd

Seattle University Law Review

Recognizing that courts will eventually have to confront the issue of medical futility, this Comment argues that there is no principled basis for omitting these difficult questions from a legal analysis of the issue and that courts should therefore decide the issue in a manner that honestly confronts them. Specifically, the argument advanced here is that courts confronted with cases of medical futility should decide the issue under principles of tort law, rather than under principles of constitutional law. The crux of this argument is that tort principles provide an open-ended analytical framework conducive to considering troublesome questions like those …

Preface: Double Jeopardy In Washington And Beyond, Justice Philip A. Talmadge

Seattle University Law Review

The prohibition against double jeopardy is of ancient lineage in western civilization. In a ringing and scholarly dissent that rewards reflection, Justice Hugo Black said:

Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers. By the thirteenth century …

Medical Concerns About Physician-Assisted Suicide, Peter M. Mcgough, M.D.

Seattle University Law Review

The November 8, 1994 passage of Oregon's Measure 16, which permits physicians to comply with the request of a competent adult patient with less than six months to live for a prescription for lethal drugs, has intensified the debate over the legalization of physician-assisted suicide following the defeats of similar initiatives in Washington and California. Subsequent legal challenge to Measure 16 and the present preliminary injunction3 has shown that passage and popularity of a public initiative does not ensure its legality. The issue of physician-assisted suicide is most likely headed for the United States Supreme Court. This Article is intended, …

Physician Involvement In Life-Ending Practices, Thomas A. Preston

Seattle University Law Review

This Article explains that we need to acknowledge physicians' widespread involvement in ending patients' lives by a variety of means, from withdrawal of life-sustaining treatment to euthanasia. Our inquiry should move from appearance and professional acceptance of practices to the conditions under which society allows physicians to be involved in ending patients' lives.

Seeking Compassion In Dying: The Washington State Law Against Assisted Suicide, Edward J. Larson

Seattle University Law Review

From a constitutional standpoint, the decision by Judge Rothstein is more significant than the Oregon initiative because her reasoning calls into question statutes against assisted suicide that are currently in effect in most American states and are part of traditional Anglo-American law. Her ruling goes far beyond the Oregon initiative (now the Death With Dignity Act), which created a narrow statutory exception in the law against assisted suicide. It establishes a broad, new constitutional right that will restrict legislative efforts to address this controversial social issue. The decision was unprecedented; no prior court had limited a state's authority to outlaw …

Civil Forfeiture And The Eighth Amendment After Austin, James E. Beaver, Kit G. Narodick, Joseph M. Wallin

Seattle University Law Review

Imagine owning an expensive piece of property, a piece of real estate perhaps, or maybe a car or boat. Now imagine having your property forcefully taken away from you because someone suspects, or pretends to suspect, that you are using the property in the commission of criminal acts. Then, imagine having to hire a lawyer and start a lawsuit to recover your property. After spending a small fortune in legal fees to recover your own property, imagine you lose your lawsuit, not because you could not prove your rightful ownership before its forceful seizure, but because you could not prove …

Practical Implications For Health Care Providers In A Physician-Assisted Suicide Environment, Donald E. Spencer, Ed.D.

Seattle University Law Review

In this Article, I present key practical implications that the attorney and health care providers need to consider. I also present implications for public policy. I do not take a stand in the Article for or against physician-assisted suicide, either morally, ethically, or legally. Other articles in this Review and numerous other professional publications do. Instead, this Article begins the discussion of procedures for health care providers in an environment of legal physician-assisted suicide. An attorney who advises legal review of proposed procedures for handling physician-assisted suicide requests will serve the health care provider well. The procedures must meet the …

The Basis Of The Spending Power, David E. Engdahl

Seattle University Law Review

This Article undertakes to demonstrate, however, that Congress' power to spend does not derive from that so-called "General Welfare" Clause, but instead derives from two overlapping but independent provisions found elsewhere in the Constitution. First, spending "for carrying into Execution" any enumerated power is authorized by the familiar Necessary and Proper Clause.2 Second, Article IV gives Congress "Power to dispose of ... Property belonging to the United States," one species of such property being money in the Treasury. This "Property Clause" is ample to authorize all federal spending, whether or not it is also authorized by the Necessary and Proper …

Unconstitutional Incontestability? The Intersection Of The Intellectual Property And Commerce Clauses Of The Constitution: Beyond A Critique Of Shakespeare Co. V. Silstar Corp, Malla Pollack

Seattle University Law Review

This article makes several assertions: (1) The Intellectual Property Clause of the Constitution, even read with the Commerce Clause, prevents Congress from giving authors or inventors exclusive rights unbounded by premeasured time limitations; (2) Because such limits exist, even incontestable trademarks must be subject to functionality challenges in order to prevent conflict with the Patent Clause; (3) The Intellectual Property Clause requires a similar challenge to prevent conflict with the Copyright Clause; (4) The states are also limited by either direct constitutional mandate or statutory preemption. Based on the first two assertions, this article argues that the Fourth Circuit's decision …

"Face"-Ing Rico: A Remedy For Antiabortion Violence?, Susan L. Ronn

Seattle University Law Review

In Section I, this Comment examines the nature of the violence erupting out of protest activity at abortion clinics. Section II outlines the treatment of different types of federal lawsuits brought by clinics and pro-choice groups against both antiabortion groups and the leaders that spearhead the violent protest campaigns. Section III explores the use of RICO against such groups and individuals, and the imposition of an economic motivation requirement. Section IV discusses both the Seventh Circuit's and the Supreme Court's decisions in NOW v. Scheidler. Section V addresses the concerns surrounding the application of RICO to political protest activities. Section …

Exposing Some Myths About Physician-Assisted Suicide, Giles R. Scofield

Seattle University Law Review

From my perspective, the fuss about physician-assisted suicide is about as important as re-arranging the deck chairs on the Titanic. Given the current state of our health care system, which remains in a state of crisis regardless—and perhaps because of—what did not happen last year, the legalization of physician-assisted suicide is morally essential only to those who are indifferent to the health care needs and concerns of most Americans. You now know that I do have something to say about this issue. Instead of engaging in the debate, however, I intend to engage the debate. By that, I mean that …

Physician Aid In Dying: A Humane Option, A Constitutionally Protected Choice, Kathryn L. Tucker, David J. Burman

Seattle University Law Review

This Article presents the argument that the Fourteenth Amendment protects the individual decision to hasten death with physician-prescribed medication and that statutes prohibiting physician-assisted suicide deny equal protection, guaranteed by the Fourteenth Amendment, to competent, terminally-ill adults who are not on life support.