Constitutional Law Commons^™

Corruption Of A Term: The Problematic Nature Of 18 U.S.C. §1512(C), The New Federal Obstruction Of Justice Provision, Daniel A. Shtob

Vanderbilt Law Review

The year 2002 may be remembered in the annals of the law as the year that corporate America became accountable for its actions. The boardroom, equated with the smoke-filled room of corrupt enterprise and political machination, came under fire as industry giants sank amidst charges of misconduct. In response to high profile allegations of corporate fraud, Congress commenced a fervent bipartisan effort to draft and implement a law to counter corporate obstruction of justice. On July 1, 2002, President George W. Bush signed the Sarbanes-Oxley Act. The bill included a section that prescribes strong penalties for individuals who corruptly impede …

War And American Constitutional Order, Mark E. Brandon

Vanderbilt Law Review

In their introduction to a fine new edition of Alexis de Tocqueville's Democracy in America, Harvey C. Mansfield and Delba Winthrop claim that "[i]f the twentieth century has been an American century, it is because the work of America... has been to keep democracy strong where it is alive and to promote it where it is weak or nonexistent." By "democracy" they doubtless intend something akin to "constitutional democracy," "liberal democracy," or "republican government." I take each of these to be a rough proxy for a constitutionalist system that includes (1) institutions authorized by and accountable to the people (both …

Constitutional Issues Raised By States' Exclusion Of Fertility Drugs From Medicaid Coverage In Light Of Mandated Coverage Of Viagra, Erin L. Connolly

Vanderbilt Law Review

On July 2, 1998, officials at the Health Care Financing Administration ("HCFA"), the federal agency responsible for administering the Medicaid program,' mandated that state Medicaid pro- grams provide coverage for the impotency drug Viagra. The HCFA's announcement has proven very controversial, encountering resistance from many states who view the mandate as financially impairing their ability to provide other Medicaid services. Mandated Medicaid coverage of Viagra is also curious, considering that the Medicaid statute specifically permits states to exclude fertility drugs, a category of drugs into which Viagra falls, from coverage under state Medicaid programs. Moreover, most states do in fact …

Timing And Delegation: A Reply, Jonathan R. Siegel

Vanderbilt Law Review

For two authors who come to such different conclusions, Professor Manning and I agree on a good deal. We agree that courts, in considering whether to consult legislative history in the course of statutory construction, must take heed of the special constitutional rule against congressional self-aggrandizement.' Thus, we agree that the Constitution forbids courts to give authoritative weight to post-enactment legislative history, because the effect of such a judicial practice is to permit Congress to delegate a very important power, the power to elaborate the meaning of statutes, to its committees or Members. We also agree, however, that Congress may, …

Government Of The Good, Abner S. Greene

Vanderbilt Law Review

Government "speaks" both directly through its own pronouncements and indirectly through funding private speech. Many scholars of both political theory and constitutional law have argued that government should not use its persuasive powers to promote contested notions of the good life. Whether the issue is providing information about childbirth without also providing information about abortion or insisting on adherence to decency standards when awarding cultural grants, scholars generally have maintained that government should avoid taking sides.

In this Article, Professor Greene supports the contrary position, advocating a vigorous role for government speech even in areas of great social contest. Government …

Constructing Alternative Avenues Of Jurisdictional Protection: Bypassing Burnham's Roadblock Via § 1404(A), Phillip F. Cramer

Vanderbilt Law Review

A plaintiff from Maine sues an insurance company, incorporated in Maine and having its principal place of business in Maine, on a loss incurred in Maine under a contract negotiated, written, and executed in Maine. The plaintiff files the suit in Alabama to take advantage of its liability law, its statute of limitations, its juries, its rules of evidence, and its posture toward plaintiffs. The plaintiff serves a representative of the insurance company traveling in Alabama en route to an industry convention. For all the reasons the plaintiff seeks a forum in Alabama, the defendant wishes to avoid that forum. …

Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim Rossi

Vanderbilt Law Review

In confronting important constitutional issues, state courts face a range of interpretive questions, many unanswered by the texts of state constitutions. Where a constitutional text fails to answer the question posed, a state court, much like its federal counterparts,' must look to extra-textual interpretive tools to aid in its decision- making task. The literature on state constitutional law provides important insights into how interpretation operates within a single state's. system of governance. But rarely does it attempt to under- stand and appreciate how or why the interpretive practices of state and federal constitutional systems differ.

This is unfortunate. Understood through …

Running From The Law: Should Bounty Hunters Be Considered State Actors And Thus Subject To Constitutional Restraints?, Andrew D. Patrick

Vanderbilt Law Review

The issue of bounty hunter misconduct catapulted into the public spotlight in September, 1997, when a team of commando-like criminals who claimed to be searching for a bail-jumper gunned down a Phoenix couple in their own bedroom. Though the perpetrators' story was later uncovered as a hoax, and though the men would likely have been convicted of second-degree murder regardless of their profession,s their case and others like it aroused impassioned demands for bounty hunter regulation and, more radically, constitutional restraints on the bail bond industry.

Constitutional protections are applicable only against the government and "state actors." Bounty hunters have …

The Shifting Preemption Paradigm: Conceptual And Interpretive Issues, Karen A. Jordan

Vanderbilt Law Review

Recent decisions have signaled a subtle shift away from the Supreme Court's categorical approach to the issue of federal preemption of state law, and toward a preemption continuum in which the implied preemption theories may inform an express preemption analysis. Yet, the Court as a whole has avoided addressing the issues arising from the integration of the doctrines. In this Article, Professor Jordan explores some of these difficult issues. The conceptual issues concern when and how the implied theories should be used in an analysis involving an express preemption clause. She analyzes the Court's recent use of the implied theories …

Lest We Forget: Buchanan V. Warley And Constitutional Jurisprudence Of The "Progressive Era", Richard A. Epstein

Vanderbilt Law Review

The two principal papers in this collection are devoted to an analysis of one of the Supreme Court's landmark decisions of the Progressive era, Buchanan v. Warley.' Both David Bernstein and Michael Klarman reveal ambitions that go beyond a single case, as each discusses in detail a large part of the Progressive era jurisprudence on race relations that set the stage for Buchanan v. Warley. A short introduction is hardly the place to quibble with these papers on points of detail. But it is the place to raise one neglected theme that requires fresh emphasis. The constitutional jurisprudence that led …

Constitutional Wrongs And Common Law Principles: The Case For The Recognition Of State Constitutional Tort Actions Against State Governments, T. Hunter Jefferson

Vanderbilt Law Review

Imagine an individual whose friend has allowed him to stay in a bedroom of his trailer home. This individual brings his most treasured and personal possessions along with him. Two police officers, after receiving information of potential criminal activity from an informant, enter the trailer without a warrant. Instead of obtaining a warrant, the officers solicit the consent of a third party and ransack the bedroom-leaving it in complete disarray. They find no evidence of the alleged criminal wrongdoing and seize no property. Although the police do not arrest the individual, they have humiliated him and have invaded his privacy. …

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

Vanderbilt Law Review

The law takes shape as great principles collide in the context of concrete cases. In the field of constitutional law, the task of reconciling key precepts falls, of necessity, to the Supreme Court. Indeed, much of the Court's work involves delineating the borders of competing constitutional principles that the Court itself has created.

This Article considers the interplay of two central tenets of the 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, …

Conservatives, Liberals, Romantics: The Persistent Quest For Certainty In Constitutional Interpretation, Frederick M. Gedicks

Vanderbilt Law Review

From the time that Robert Bork issued his first attack on the Warren Court, originalism has belonged to political conservatives. This interpretive theory, which holds that the understanding of the Constitution at the time it was drafted and ratified controls its contemporary meaning, has been regularly utilized by conservative judges and politicians over the last two decades to question the legitimacy of various (mostly liberal) Supreme Court decisions. Given the liberal tilt of the legal academy, it is not suprising that advocates of originalism constitute a minority of constitutional scholars.

Recently, a prominent constitutional theorist with unmistakably liberal credentials announced …

Introduction: The Democratic Judge, Michael J. Gerhardt

Vanderbilt Law Review

It is a special privilege for me to return to this great law school to honor one of its greatest graduates. Each time I return to Nashville, it feels like a homecoming. Each time I return, I also feel that as I am getting older, Judge Merritt is getting younger. The last time I was here, he got married; and the time before that, we squared off for the umpteenth time on a tennis court. He also Writes more opinions, gives more speeches, and has taken more of a leadership role in protecting the interests of the federal judiciary than …

All The Supreme Court Really Needs To Know It Learned From The Warren Court, Suzanna Sherry

Vanderbilt Law Review

It is accepted wisdom among constitutional law scholars that the Supreme Court is now considerably more conservative than it was during the tenure of Chief Justice Earl Warren. In this Article, I hope to suggest that the conventional wisdom is at least partly wrong. In Part I, I suggest that many of the current Court's so-called conservative cases and doctrines are direct descendants of Warren Court cases and doctrines. Although my attribution of similarity is new, the description of the cases and doctrines themselves is entirely unoriginal. Indeed, the history of the two sets of cases-of the Warren Court and …

On The Merits: A Response To Professor Sherry, John C.P. Goldberg

Vanderbilt Law Review

Professor Sherry's Article has three parts. The first is doctrinal and undertakes to demonstrate that the above quoted wisdom is not only false, but patently so. It is apparent, this Part argues, that the current Court has not drifted toward the "right," but has steadfastly held to the principle of justice that animated the Warren Court. This is the principle of "formal neutrality," which generally holds that government may never distinguish among its citizens on the basis of race, creed, or color.

Professor Sherry's second project is to explain why constitutional scholars have failed to recognize this obvious consistency. Her …

The Case For Applying The Eighth Amendment To Corporations, Elizabeth S. Warren

Vanderbilt Law Review

ABC Corporation employs fifty drivers and transports various products across state lines. An employee of ABC corporation secretly carries small amounts of illegal drugs in the trailers of the trucks he drives and does so without detection for five years. After law enforcement authorities discover the drug trafficking, the United States files an in rem action under 21 U.S.C. section 881(a)(4), seeking forfeiture of every truck that the guilty driver drove over the past five years and every trailer in which the guilty driver carried drugs. This forfeiture could result in ABC Corporation's losing a third of its trucks and …

Untying A Judicial Knot: Examining The Constitutional Infirmities Of Extrajudicial Service And Executive Review In U.S. Extradition Procedure, Matthew M. Curley

Vanderbilt Law Review

Consider the following situation. An investment banker embezzles millions of dollars from a bank in Italy and transfers the funds to an account in the United States. While he is vacationing in the United States, federal marshals apprehend him pursuant to a request by the Italian government. They bring him before a federal district court judge sitting as an extradition magistrate in the local federal courthouse. After determining that the evidence presented meets the requisite level of criminality, the judge declares that the banker is properly extraditable and binds the case over to the Secretary of State.

The President, however, …

Standards For Constitutional Review Of Privacy-Invading Welfare Reforms: Distinguishing The Abortion-Funding Cases And Redeeming The Undue-Burden Test, Susan F. Appleton

Vanderbilt Law Review

As the debate on welfare reform proceeds relentlessly toward what many hope will be a drastically altered system, critics of reform proposals have wisely focused their attention on the competing policy choices faced by Congress and the president (and ultimately perhaps the states). As a result, Congress's avowed determination to limit available funds and to abolish certain entitlements to public assistance has prompted arguments about the merits of programs that might compete for dwindling federal dollars. For example, should Congress stop welfare payments to unmarried teenage mothers? Should it cap the amount of support a family receives, regardless of the …

The Brady Bill: Surviving The Tenth Amendment, Amy M. Pepke

Vanderbilt Law Review

In late 1993, Congress passed the Brady Handgun Violence Prevention Act ("Brady Bill")' as an amendment to the Gun Control Act of 1968. By mid-1994, several suits had been initiated challenging the constitutionality of the Bill. Although the plaintiffs in each case brought several claims, the most viable and controversial challenge centers on the Tenth Amendment. Plaintiffs have argued that certain provisions of the Bill unconstitutionally commandeer state resources by imposing mandatory duties on the chief law enforcement officer ("CLEO") of the place of residence of the prospective gun purchaser. Supreme Court decisions on tenth amendment questions have been ambiguous …

Old Wine In New Bottles: The Constitutional Status Of Unconstitutional Speech, Mark A. Graber

Vanderbilt Law Review

This Article explores whether contemporary advocates of restrictions on bigoted expression have more in common with contemporary advocates of broad First Amendment rights or with past censors. The critical theorists who would ban some hate speech rely heavily on the equal citizenship principles that radical civil libertarians believe justify almost absolute speech rights. Past censors, however, also relied heavily on principles that libertarians in their generation thought justified almost absolute speech rights. The First Amendment, past and present censors argue, does not fully protect speech in- consistent with what they believe are basic constitutional values. This claim repudiates a basic …

The Constitutionality Of Student-Led Prayer At Public School Graduation Ceremonies, Johanna J. Raimond

Vanderbilt Law Review

The Supreme Court consistently has held that it is unconstitutional to pray in public school classrooms.' Until 1992, however, the Court had never addressed the issue of prayer at a public school graduation ceremony. Prior to the Court's ruling, public school districts across the country regularly included a prayer of some variety in their graduation programs. In June 1992, the Supreme Court finally addressed this longstanding practice. In Lee v. Weisman, the Court held that the Providence, Rhode Island school district violated the Establishment Clause of the First Amendment by permitting a rabbi to offer an invocation and benediction at …

Three Faces Of Federalism: Finding A Formula For The Future, Deborah J. Merritt

Vanderbilt Law Review

The first, and oldest, of the Supreme Court's concepts of federalism is the territorial model. This model recognizes that there is a discernible boundary between the subjects fit for national regulation and those reserved for state governance. Territorialists argue that the national government is supreme in some areas, while states reign sovereign in others. Adherents of this model, for example, might declare that the national government directs foreign affairs while the states control domestic relations.

Under the territorial model, federalism violations occur when the national government attempts to invade a substantive area of law reserved to the states. The Supreme …

Five Views Of Federalism: "Converse-1983" In Context, Akhil R. Amar

Vanderbilt Law Review

In 1987, I published an overly long article in the Yale Law Journal entitled Of Sovereignty and Federalism. In it, I advanced a "converse-1983" model of federalism-a model that highlighted the ways in which state laws can provide remedies when federal officials violate federal constitutional rights. For example, prior to the 1971 landmark of Bivens v. Six Unknown Federal Agents, citizens whose Fourth Amendment rights had been violated by federal officers had no clear federal cause of action; but state trespass law often provided a remedy, and enabled citizens to recover when their "persons, houses, papers, [or] effects" had been …

A Precarious Path: The Bill Of Rights After 200 Years, Tony A. Freyer

Vanderbilt Law Review

The Bill of Rights occupies an ambiguous place in American society. Americans favor the Bill of Rights in principle, but when asked whether they support particular rights guarantees for real-life practices such as gun ownership, capital punishment, abortion, and flag burning, Americans fervently and profoundly disagree. The essays David J. Bodenhamer and James W. Ely, Jr. have compiled in The Bill of Rights in Modern America After 200 Years, richly suggest why Americans have reconciled principle and practice with such difficulty. Written for a popular audience by specialists who possess a profound knowledge of and differing views concerning the technical …

State Courts Reject "Leon" On State Constitutional Grounds: A Defense Of Reactive Rulings, Leigh A. Morrissey

Vanderbilt Law Review

In 1984, the United States Supreme Court announced a broad exception to the federal exclusionary rule' in United States v. Leon. The Court held the exclusionary rule inapplicable when police officers obtain evidence in reasonable, good faith reliance on a warrant later found to be defective. Commentators had advised against the creation of the so-called good faith exception before Leon. After Leon, they promulgated a torrent of commentary criticizing both the Leon Court's reasoning and its result. Today, because Leon does not control state constitutional decisions, the battle over the good faith exception is fought on the state level. Currently, …

The Continuing Evolution Of Criminal Constitutional Law In State Courts, S. Carran Daughtrey

Vanderbilt Law Review

Although early state constitutions were important and ambitious documents for their time, the development of state constitutional law stagnated after the drafting and adoption of the federal constitution., As the doctrine of federalism has resurfaced, however, states have begun to turn to their constitutions to grant more protection for their citizens. The states' criminal constitutional laws have changed significantly and continue to evolve today.

In the 1960s, the Warren Court expanded basic protections for criminal defendants by finding that the Fourteenth Amendment incorporates the Fourth, Fifth, and Sixth Amendments. The Court held that the Eighth Amendment prohibits cruel and unusual …

The Algebra Of Pluralism: Subjective Experience As A Constitutional Variable, Barbara J. Flagg

Vanderbilt Law Review

Adzan Bedonie is a Navajo woman who speaks no English, holds tightly to traditional Navajo beliefs, and lives in a one-room hogan on the wrong side of the line drawn by a federal court to partition Navajo and Hopi lands.' The law that mandates her relocation and thus threatens to sever what for her is a spiritual connection to the land on which she lives offers a potential escape route: Congress provided for a limited number of life estates for older individuals subject to relocation. But Adzan Bedonie, like most elderly Navajo, has not applied for a life estate, because …

Reformist Myopia And The Imperative Of Progress: Lessons For The Post-Brown Era, Donald E. Lively

Vanderbilt Law Review

Over the course of two centuries, constitutional law has evolved as both a source and ratification of moral development. The processes of constructing and interpreting the nation's charter have established a unique window through which it is possible to glimpse the fundamental concerns of bygone and present eras and to observe the competition of values and ordering of priorities that define the society. A survey of the complete record discloses innumerable conflicts of law and morality that have arisen, been resolved, and exist now primarily as historical reference points. It also reveals significant business that remains unfinished. Even as the …

No Hablo Ingles: Court Interpretation As A Major Obstacle To Fairness For Non-English Speaking Defendants, Michael B. Shulman

Vanderbilt Law Review

A Cuban man was convicted on drug charges for uttering the words above. He used the words in response to a request for a loan and, given the dialect of the speaker and the context of the statement, they can properly be translated as "[m]an, I don't even have ten cents." Instead, the court interpreter mistakenly translated them as, "[m]an, I don't even have ten kilos."' This case demonstrates the influence the court interpreter can have on the outcome of a case. As extraordinary as this situation may appear, however, it is not an isolated incident. Rather, what is unusual …