Constitutional Law Commons^™

Self-Incrimination, Supreme Court, Appellate Division, Third Department: In Re Gladys H.

Touro Law Review

No abstract provided.

Separation Of Powers, Supreme Court, Appellate Division, Third Department: Dorst V. Pataki

Touro Law Review

No abstract provided.

Foreword, David J. Jung

UC Law Constitutional Quarterly

No abstract provided.

Reexamining Compelling Interests And Radical State Campaign Finance Reforms: So Goes The Nation, Molly Peterson

UC Law Constitutional Quarterly

James Madison noted that "[t]here are two methods of curing the mischiefs of [a] faction: the one, by removing its causes; the other, by controlling its effects." Campaign finance regulation, often spoken of as curing the mischiefs of special interest groups, has experienced a popular resurgence spawned by inquiries into extranational contributions in the 1996 presidential election and the 104th Congress' filibuster of the McCain-Feingold reform package. Since the Supreme Court's decision in the 1976 case Buckley v. Valeo, striking several parts of the Federal Election Campaign Act for infringing upon First Amendment-protected political expression, the efficacy of campaign finance …

Dismantling The Modern State--The Changing Structural Foundations Of Federalism, Keith E. Whittington

UC Law Constitutional Quarterly

Federalism, as a constitutional concept underlying the appropriate distribution of powers among the federal and state governments, has responded in understandable ways to long-term trends in economics, political organization and political values. Such trends have encouraged centralization through most of the twentieth century, as is reflected in both judicial doctrine and governmental practice. However, changing conceptions of the political economy and the political regime have created a new structural dynamic that favors a less centralized version of federalism.

In this article, Professor Whittington examines the structural foundations of the movement toward centralization and the modern countertrends to that movement which …

Full Faith And Credit And The Equity Conflict, Polly J. Price

Faculty Articles

As this Article relates, the current problem with interstate en­forcement of injunctions and other equitable decrees is illustrated by the Court's confusion in Baker. The Court reached the correct result in the case before it, but the basic problems of "equity con­flict" remain unresolved. Both the Court's opinion and the two con­currences were unsatisfactory because the Court failed to address the key underlying issue of whether or to what extent courts may rely on state law to enjoin extraterritorial conduct. Had the Court focused on this issue, I argue, it could have based its decision upon a more appealing rationale. …

The Long Road Towards Restoration Of Religious Freedom: Congressional Options In Light Of City Of Boerne V. Flores, J. Jeffrey Patterson

Kentucky Law Journal

No abstract provided.

The Constitutionality Of Anti-Gang Legislation, Beth Bjerregaard

Campbell Law Review

The purpose of this article is to examine the constitutionality of anti-gang legislation within the context of the First Amendment. Specifically, the doctrines of vagueness and overbreadth and the related issue of freedom of association will be examined with respect to statutory provisions which criminalize gang participation.

Batch V. Town Of Chapel Hill - Takings Law And Exactions: Where Should North Carolina Stand?, Elizabeth K. Arias

Campbell Law Review

This note argues that the North Carolina Supreme Court improperly decided Batch v. Town of Chapel Hill by ruling on a mere technicality. Instead the court should have focused on the nature of the town's ordinance and the required exaction and should have addressed Dr. Batch's takings claim. Proper analysis of Dr. Batch's claim indicates that the condition the Town of Chapel Hill imposed was an unconstitutional exaction. Part I of this note sets out the factual background and issues raised by the Batch decision and details the reasoning of both the North Carolina Court of Appeals and the North …

King V. North Carolina: A Misinterpretation Of The Lucas Takings Rule, Don R. Wells

Campbell Law Review

This note will examine the decision in King and analyze the facts of this case under the correct interpretation of Lucas. Part II of this note will present the facts and procedural history of King. Part III will demonstrate that the Lucas rule, as applied in King was erroneous, and will analyze the facts of King under the correct interpretation of Lucas.

National Endowment For The Arts V. Finley: Challenging The Facial Challenge, Gloria F. Taft

Campbell Law Review

This Note examines the facial challenge in National Endowment for the Arts ("NEA") v. Finley and how an as-applied challenge may have produced a different outcome. In particular, this Note will analyze the inadequacy of a facial challenge to the "decency & respect" provision, and in the alternative how an asapplied challenge would have invalidated the provision when applied to artists such as the Respondents in Finley.

A Return To The Basics: Constitutional Answers To The Racial Gerrymandering Questions, Shannon L. Vandiver

Campbell Law Review

This comment seeks to explain the incorrigible by returning to the basics. Starting and ending at the Constitution and a notion of what it means to be represented, this comment traces the development of redistricting jurisprudence from the Fourteenth and Fifteenth Amendments through the Voting Rights Act and finally to the Supreme Court. Most notably, this comment focuses on the effects of the redistricting quagmire on the state ofNorth Carolina throughout the 1990's as an exemplar of a reapportionment process attempting to pander to the political proclivities of both the Department of Justice and the Judicial branch.

Protecting Basic Rights Of Citizens, Ellen Catsman Freidin, Ann C. Mcginley

Scholarly Works

Revision 9 suggests three important changes to the basic rights provision of the Florida Constitution. First, it would add “female and male alike” to define “natural persons who are equal before the law.” This change expressly recognizes equality of the sexes. Second, it would prohibit the government from depriving a person of any right because of the person’s national origin. Finally, the revision prohibits the government from depriving a person of any right because of “physical disability,” replacing the currently existing protection for “physical handicap.”

Affirmative Action Awash In Confusion: Backward-Looking-Future-Oriented Justifications For Race-Conscious Measures, Ann C. Mcginley

Scholarly Works

The Third Circuit Court of Appeals, sitting en banc, decided Taxman v. Board of Education of the Township of Piscataway, in August 1996. Eight judges agreed that he Board of Education of Piscataway Township, New Jersey violated Title VII of the Civil Rights Act by using race, in accordance with its affirmative action policy, to break a tie between two teachers in the Business Department at Piscataway High School when determining which teacher to lay off. A strong dissent by Chief Judge Sloviter was joined by two other Court of Appeals judges. The majority decision is remarkable in its breadth, …

Forum Shopping For Arbitration Decisions: Federal Courts' Use Of Antisuit Injunctions Against State Courts, Jean R. Sternlight

Scholarly Works

Arbitration clauses, which are supposed to do away with litigation, have ironically spawned many complicated and expensive court fights. Some of the most complex cases involve both forum shopping by the parties and jurisdictional turf battles between federal and state courts. Federal courts have, on quite a few occasions, actually gone so far as to enjoin a state court from continuing to consider a pending case because the federal court concluded that the matter ought to be arbitrated. The Supreme Court, however, has never ruled on whether or when such "arbitral antisuit injunctions" are permissible. In Moses H. Cone Memorial …

Co-Opting Compassion: The Federal Victim's Rights Amendment, Lynne Henderson

Scholarly Works

No abstract provided.

Race, Angst And Capital Punishment: The Burger Court's Existential Struggle, Katherine R. Kruse

Scholarly Works

This article chronicles the Burger Court's inability to fashion a suitable remedy for racism in the discretionary system of capital sentencing. The article discusses the Court's initial response, “remedial paralysis,” which is evident, not only in McGautha v. California, where the Court refused to find that the Due Process Clause was violated by standardless death sentencing, but also in Furman v. Georgia, where the Court decided to abolish the death penalty. The article further explores the Court's reinstatement of the death penalty, and two of the Court's forays into “bad faith” denial that sustained the death penalty, particularly the Court's …

Deconstructing Homo[Genous] Americanus: The White Ethnic Immigrant Narrative And Its Exclusionary Effect, Sylvia R. Lazos

Scholarly Works

This Article examines why the assumption of sameness is so pervasive in our society, and why the very idea of diversity is so resisted. The assumption and the corollary mandate to be the same are embedded in American cultural ideology, in how Americans think of themselves, in the stories that we tell regarding who we are and where we come from, in how we construct our values and norms, and in how Americans make sense of our chaotic social world. The assumption and mandate of sameness not only influence American culture, they also guide judges' thinking and decision-making in key …

The Federal System As Bill Of Rights: Original Understandings, Modern Misreadings, Thomas B. Mcaffee

Scholarly Works

In the modern era, we have almost completely lost track of the relationship that the Framers of the United States Constitution perceived between the structure of our federal system and the protection of popular rights. At least two obvious components of this confusion persist. First, as we have come to think of rights almost exclusively in terms of the claims of individuals against the government, we have lost the ability to hear the Framers' voices referring to rights held by the people in their collective capacity, including the rights of the people within each of the sovereign states to be …

"Disclose-Or-Abstain" Without Restraint: The Supreme Court Misses The Mark On Rule 14e-3 In United States V. O'Hagan, E. Livingston B. Haskell

Washington and Lee Law Review

No abstract provided.

The Right Books For The "Rights" Course—A Review Of Four Civil Rights Casebooks, Stephen Shapiro

Seattle University Law Review

This essay originally started out as a review of Charles Abernathy's casebook, <em>Civil Rights and Constitutional Litigation</em>, which the author was using to teach his "Civil Rights Litigation" course at the University of Baltimore. Since at some point in his career the author has used three of the four major casebooks available to law faculty teaching Civil Rights (the Abernathy casebook, Eisenberg's <em>Civil Rights Legislation</em>, and Low and Jeffries's <em>Civil Rights Actions</em>), he decided to extend this review to all four books. All four are quite good, including the newest, Nahmod, Wells & Eaton's <em>Constitutional Torts</em>. They all differ, however, …

Universalism, Liberal Theory, And The Problem Of Gay Marriage, Robin West

Georgetown Law Faculty Publications and Other Works

Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two equally important implications. The first we might call the "universalist" assumption: all human beings, not just some, are rational -- not just white people, men, freemen, property owners, aristocrats, or citizens, but all of us. In this central, defining respect, then, we are all the same: we all share in this universal, natural, human trait. The second implication, we might call the "individualist" …

The Supreme Court Of Canada, Parliament And The Charter: Exploring The Limits Of The Judicial Function In Criminal Law, Patricia A. Fricker

LLM Theses

Two constitutional principles--constitutional supremacy and parliamentary supremacy--should not be treated as antagonistic. The task for the Supreme Court of Canada since its elevation as constitutional arbiter has been to find the balance between these two constitutional doctrines. It must do so within the limits prescribed by the judicial function. What are those limits in the context of criminal law? The definitional elements of the offence; the political and legal theory of classical liberalism; the Charter's constitutional, as opposed to statutory, character; the primacy of either crime control or due process values in judicial decision-making; the fluctuating balance in the criminal …

The Hidden History Of The Second Amendment, Carl Bogus

Law Faculty Scholarship

No abstract provided.

"A Revolution Which Seeks To Abolish Law, Must End Necessarily In Despotism": Louisa Mccord And Antebellum Southern Legal Thought, Alfred L. Brophy

Cardozo Journal of Equal Rights & Social Justice

Louisa McCord's essays provide a unique lens into the legal and political thought of antebellum Southern society, particularly her defense of slavery and the role of law in maintaining social order. She argued that law should ensure basic fairness in market transactions but should not interfere with the institution of slavery, which she viewed as a matter of sentiment rather than legal regulation. McCord's work challenges the notion that legal history is confined to the common law tradition, emphasizing the importance of understanding law as part of a broader societal outlook.

Neonaticide And The "Ethos Of Maternity": Traditional Criminal Law Defenses And The Novel Syndrome, Judith E. Macfarlane

Cardozo Journal of Equal Rights & Social Justice

The note explores the legal and psychological dimensions of neonaticide, proposing the recognition of a Neonaticide Syndrome to better understand the mental state of perpetrators and inform legal defenses. It argues that such a syndrome, characterized by denial of pregnancy and psychotic breaks, could provide a framework for lenient sentencing and negate intent in homicide charges, similar to how Rape Trauma Syndrome and Battered Woman Syndrome are used in court. The analysis emphasizes the need for expert testimony to explain the mental state of defendants and the admissibility of such evidence under Frye and Daubert standards.

Taking The Cop Out Of Copping A Plea: Eradicating Police Prosecution Of Criminal Cases, Andrew Horwitz

Law Faculty Scholarship

No abstract provided.

"Pro-Life" Absolutes, Feminist Challenges: The Fundamentalist Narrative Of Irish Abortion Law 1986-1992, Ruth Fletcher

Osgoode Hall Law Journal

This article asks how Irish abortion law developed to the point of stopping a young pregnant rape victim from travelling abroad to have an abortion in 1992 (Attorney General v. X.). The author argues that this case, which ultimately saw the Irish Supreme Court overturn that decision and recognize the young woman's right to abortion, was the last chapter of the fundamentalist narrative of Irish abortion law. The feminist critique of that law needs to consider its particular fundamentalist aspects in order to clarify the obstacles posed to the struggle for Irish women's reproductive freedom. The author argues that a …

A Bill Of Rights For The United Kingdom: From London To Strasbourg By The Northwest Passage?, Stephen Sedley

Osgoode Hall Law Journal

In anticipation of the United Kingdom's patriation of the European Convention on Human Rights, the author explores the possible impact that a Bill of Rights will have on the U.K. system of justice from a European and U.K. perspective. The author argues that, from a European perspective, the U.K. has an established history of yielding to supra-national law given its membership in the European Union. However, from a U.K. perspective, this will present new challenges, as the constitutionality of domestic legislation is subject to increased judicial scrutiny in ensuring conformance with European Convention obligations. The author argues that the pressures …

R. V. Oakes 1986-1997: Back To The Drawing Board, Leon E. Trakman, William Cole-Hamilton, Sean Gatien

Osgoode Hall Law Journal

The Supreme Court of Canada, in R. v. Oakes, identified two standards of justification in applying section 1. The first standard was normative. The second was methodological, called the Oakes test. The Court, until recently, applied the Oakes test mechanically and avoided the normative standard. More recently, in Egan v. Canada and RJR-MacDonald Inc. v. Canada (A.G.), it resorted to a normative analysis that is indeterminate and unpredictable. This article challenges both the mechanical application of the Oakes test and the Court's new normative approach. It proposes, and illustrates, a preferable alternative that is both determinate and predictable. It is …