Constitutional Law Commons^™

The Constitution And Personal Autonomy: The Lawyering Perspective, Robert Allen Sedler

Law Faculty Research Publications

No abstract provided.

Our Shield Belongs To The Lord: Religious Employers And A Constitutional Right To Discriminate, Joanne C. Brant

UC Law Constitutional Quarterly

For many years, religious organizations have engaged in employment practices of dubious legality under the federal anti-discrimination laws. Religious employers are rarely found liable under anti-discrimination laws-largely because the courts have chosen to construe the statutes narrowly. This approach has enabled courts to avoid the constitutional implications of striking down employment policies that reflect an employer's religious convictions. After the Supreme Court's controversial decision in Employment Division v. Smith, that approach may no longer be practicable.

Smith prohibits exemptions from neutral and generally applicable laws on free exercise grounds. This Article contends that the federal anti-discrimination laws are neutral and …

Attorneys As State Actors: A State Action Model And Argument For Holding Slapp-Plaintiffs' Attorneys Liable Under 42 U.S.C. 1983, James W. Harper

UC Law Constitutional Quarterly

Strategic Litigation Against Public Participation ("SLAPP") is a recently identified genre of intimidation suit that menaces citizen activism on matters of public concern. The problem with SLAPPs is that their success is not contingent on victory in court; they begin achieving their purpose the moment suit is filed. This Note reviews SLAPPs and defenses and deterrents to SLAPPs. It proposes an additional deterrent to SLAPPs: applying 42 U.S.C. § 1983 to SLAPP-plaintiffs' attorneys. Because section 1983 requires deprivation of civil rights "under color of law," this Note explores whether and when attorneys are state actors and proposes a model to …

Federalism And Health Care Reform: Is Half A Loaf Really Worse Than None, Richard Briffault

UC Law Constitutional Quarterly

This Commentary argues that national health care reform that combines federal policy-making and financial assistance with some state administration and implementation may be more likely to achieve the goals of health care reform, and be better for the states and the values of federalism, than either all-federal or states-only reform. New York v. United States does not bar joint federal-state programs. An expansive reading of New York, as Professor Hoke suggests, would limit the development of solutions for the economic and social problems currently besetting the states and thus could, paradoxically, hinder, rather than help, the states in serving as …

Health Care Price Controls And The Takings Clause, William S. Brewbaker Iii

UC Law Constitutional Quarterly

At least two of the competing health care reform proposals rely on price controls to help contain costs. Opponents of health care price regulation argue that the adequacy of regulated prices must be judged under the "reasonable return" standard applicable to public utility ratemaking under the Takings Clause.

This Article argues that the "reasonable return" standard should not be applied to price regulation in the health care sector. The "property" interests at stake in health care price regulation are economically indistinguishable from the interests in "economic liberty" formerly protected under economic substantive due process analysis. As a result, the Court …

The Religion Clauses And Parental Health Care Decisionmaking For Children: Suggestions For A New Approach, Ann Maclean Massie

UC Law Constitutional Quarterly

This Article argues that statutory exemptions in child abuse and neglect laws that exclude from their definitions of "medical neglect" a parent's choice to rely upon spiritual rather than physical healing are unconstitutional. In attempting to respect the free exercise rights of parents, these laws violate the free exercise rights of affected children, who are too young to make religious choices for themselves. Forcing parents' religious choices on their children is also an Establishment Clause violation, as the state is "taking sides" in religious choice-to the detriment of the children involved. Additionally, by applying different definitions of "child abuse and …

Wiliam B. Lockhart: A Brief Biography

UC Law Constitutional Quarterly

No abstract provided.

Bill Lockhart--Colleague, Mentor, Friend, Jesse H. Choper

UC Law Constitutional Quarterly

No abstract provided.

Mapping And Matching Dna: Several Legal Complications Of Accurate Classifications, Aviam Soifer, Miriam Wugmeister

UC Law Constitutional Quarterly

Classifications are a boon and bane and a basic bone of contention in law. With the advent of DNA matching and new knowledge of the human genome, significant problems that exist in other areas of law are exacerbated. The use of even accurate classifications may generate substantial discrimination in the realms of privacy and personal freedom.

Toward A New Vision Of Informants: A History Of Abuses And Suggestions For Reform, Clifford S. Zimmerman

UC Law Constitutional Quarterly

Informants have long been used in American criminal law enforcement. Informants are often the best, if not the only, way to discover and thwart certain crimes, particularly crimes in which the victim is unknown or reluctant to cooperate. Because of informants' usefulness, law enforcement personnel, from prosecutors to prison guards, are tempted to abuse the informant system. No government can be supposed to have expressly instructed its spies to instigate the perpetration of crime. Nevertheless, to remain unsuspected, every spy must be zealous in the cause which he pretends to have espoused. That zeal directly encourages crime. In short, our …

Beware That False First Step, David R. Fine

Kentucky Law Journal

No abstract provided.

Operation Rescue Versus A Woman's Right To Choose: A Conflict Without A Federal Remedy?, Randolph M. Mclaughlin

Elisabeth Haub School of Law Faculty Publications

This article discusses the need for federal protection of women seeking abortion-related services and the denial of protection of those women by the Supreme Court's narrow holding in Bray. Part II examines the precedents leading up to the Bray decision. A review of these cases demonstrates that Operation Rescue is a national conspiracy aimed at eliminating the right to abortion. The group uses physical force and blockades clinics in order to deny women and health care workers access to these facilities. In light of the inability or unwillingness of local law enforcement agencies to provide access to the clinics and …

A Relic Of Mccarthyism: Question 21 Of The Application For Admission To The New York Bar, Colin A. Fieman

Buffalo Law Review

No abstract provided.

The Supreme Court Comes Full Circle: Coercion As The Touchstone Of An Establishment Clause Violation, Kristin J. Graham

Buffalo Law Review

No abstract provided.

Stare Decisis And The Rehnquist Court: The Collision Of Activism, Passivism And Politics In Casey, John Wallace

Buffalo Law Review

No abstract provided.

Mandatory Non-Anonymous Testing Of Newborns For Hiv: Should It Ever Be Allowed?, Jean R. Sternlight

Scholarly Works

In response to cries from both the public and the medical community for increased research and improved treatments with respect to pediatric AIDS, some state legislatures have attempted to enact legislation that would require routine mandatory testing of newborns for HIV on a non-anonymous basis.

Those who favor mandatory testing of newborns contend that such testing is necessary in order to protect the health of newborns and to ensure that the newborns' doctors provide them with adequate care. Moreover, testing advocates argue that because most hospitals already screen anonymously, failing to inform parents of the test results is inappropriate and …

Advising The President: Separation Of Powers And The Federal Advisory Committee Act, Jay S. Bybee

Scholarly Works

This Article examines the tensions between Congress, the judiciary, and the President over presidential use of advisory committees. It argues that courts, in attempting to avoid difficult constitutional questions, have misread the Federal Advisory Committee Act (“FACA”). Properly construed, FACA violates separation of powers by limiting the terms on which the President can acquire information from nongovernmental advisory committees.

The author argues that the President does have the power to consult with outside advisers, and that FACA unconstitutionally infringes upon that power. FACA fails to draw a distinction between congressionally created advisory committees and presidentially created advisory committees, and assumes …

Constitutional Implications Of Acquisition-Value Real Property Taxation: Assessing The Burdens On Travel And Commerce, Mary Lafrance

Scholarly Works

This article is the second in a two-part series addressing the constitutional implications of acquisition-value real property taxation. This Article addresses constitutional issues raised by systems of real property taxation that base a property owner's tax assessment not on the current value of the property but on its value on the date the taxpayer acquired it. The first Article in this series described the operation of acquisition-value systems of real property taxation such as those adopted by California in 1978 and Florida in 1992, and evaluated the equal protection challenges to the California system (“Proposition 13”) which culminated in the …

Constitutional Implications Of Acquisition-Value Real Property Taxation: The Elusive Rational Basis, Mary Lafrance

Scholarly Works

This article is the first in a two-part series addressing the constitutional implications of acquisition-value real property taxation. Acquisition-value real property taxation systems represent a departure from the traditional practice of taxing real property on its current fair market value. In contrast to traditional systems, which are still employed by the vast majority of states, under acquisition- value taxation a real estate owner's property tax liability is determined by the value of the property when the taxpayer acquired it. In periods of rising real estate prices, such a scheme compels later buyers to shoulder a higher annual tax liability than …

Property And Liberty - Institutional Competence And The Functions Of Rights, Wayne Mccormack

Washington and Lee Law Review

No abstract provided.

The Text Of The Free Exercise Clause As A Measure Of Employment Division V Smith And The Religious Freedom Restoration Act, Allan Ides

Washington and Lee Law Review

No abstract provided.

Post-Communist Constitutionalism: A Transitional Perspective., Ruti Teitel

Articles & Chapters

No abstract provided.

The Sixth Amendment On Ice-United States V. Jones: Whether Sentence Enhancements For Failure To Plead Guilty Chill The Exercise Of The Right To Trial, Andrew Neal Siegel

American University Law Review

No abstract provided.

Rejecting Conventional Wisdom: Federalist Ambivalence In The Framing And Implementation Of Article V, Kurt T. Lash

Law Faculty Publications

In 1787, the idea of placing an amending provision in a constitution was uncontroversial. Popular sovereignty was an assumed doctrine in the colonies; the people retained the unalienable right "to alter or abolish" their system of government whenever they so pleased. How this unquestionable right was to be incorporated into the new federal Constitution, however, was another matter. The delegates who faced each other at Philadelphia had very different views about which body should be entrusted with the power to propose amendments, when that power should be used, and how that power should be defined.

Article V, like the rest …

Suits Against State Officials For Damages For Violations Of Constitutional Rights: Comparing Maryland And Federal Law, Stephen J. Shapiro

University of Baltimore Law Review

No abstract provided.

Separating Prejudice From Rationality In Equal Protection Cases: A Legacy Of Thurgood Marshall, Harry F. Tepker

Faculty Articles

No abstract provided.

Hate Speech, Offensive Speech, And Public Discourse In America, Edward J. Eberle

Law Faculty Scholarship

In this article, Professor Eberle discusses several limitations on governmental power to regulate public discourse. After examining the United States Supreme Court decisions of R.A.V. v. City of St. Paula nd Wisconsin v. Mitchell, Professor Eberle concludes that government should refrain from regulating speech itself. Rather, any restrictions should focus strictly on the problematic conduct underlying the speech which justifies regulation. Professor Eberle also concludes that the Court has implicitly recognized two distinct subcategories of "content" discrimination and viewpoint discrimination. Both subcategories are presumptively unconstitutional and nominally subject to conventional strict scrutiny. The Court, however, finds viewpoint discrimination more dangerous …

Initiative Enigmas, Richard Collins

Publications

No abstract provided.

Abortion Rights In America, Joan R. Bullock

Journal Publications

The purpose of this Article is to raise the question of whether abortion is an answer to the numerous inequalities that confront many women when there is an unwanted pregnancy, or whether abortion exacerbates the inequalities by encouraging the subordination of women to men. There is the additional question of whether the judicial system is the appropriate forum for deciding the abortion issue-an issue that invokes high emotions and one that is fraught with deeply held and divergent moral convictions. It is my opinion that abortion has provided women with only an illusion of choice rather than meaningful choice because …

Section 1983 In The Second Circuit, Martin A. Schwartz

Scholarly Works

No abstract provided.