Constitutional Law Commons^™

The Voting Rights Act And The "New And Improved" Intent Test: Old Wine In New Bottles, Randolph M. Mclaughlin

Elisabeth Haub School of Law Faculty Publications

Since the Supreme Court injected the issue of intent into the voting rights arena in Mobile v. Bolden,1 there has been a long and persistent struggle to reverse that decision. In 1982, Congress thought it had put the question of the quantum and quality of proof required to establish a violation of section 2 of the Voting Rights Act to rest when Congress amended that section. However, the courts quickly began a rear guard action to undermine congressional efforts to eliminate the intent requirement as an element of a plaintiff's claim. Both the Supreme Court and the circuit courts have …

Panelist (Symposium: The Second Amendment), David S. Yassky

Elisabeth Haub School of Law Faculty Publications

To understand the Second Amendment and what the Founders who wrote it were trying to do, you have to understand the conceptual framework that they were working in. And that conceptual framework is based on two concepts regarding the military: the concept of the army and the concept of the militia.

The Second Amendment is about how the military power of the United States should be organized. It grew out of one of the most pretentious issues faced by the Philadelphia Convention, which was: what military power should they give this new Federal Government? They're sitting down to write the …

Minors As Medical Decision Makers: The Pretextual Reasoning Of The Court In The Abortion Cases, J. Shoshanna Ehrlich

Michigan Journal of Gender & Law

By examining the Court's failure to consider the allocation of authority between parents and children in the critical realm of medical decision making, this article exposes the irrationality of the Court's acceptance of limitations on the abortion rights of minors and reveals the pronatalist thrust of the parental involvement decisions. The article begins by looking at how the Roe Court characterized abortion as a medical decision, followed by a discussion about the medical decision-making rights of minors. Rooted in this medical paradigm, the article then turns to the parental involvement cases to examine the Court's failure to consider the medical …

The Reawakening Of Marriage, Raymond C. O'Brien

Scholarly Articles

This Article contends that the convergent societal pressures from the same-sex marriage debate, the effect of the welfare legislation to define family, and the allowance of greater religious involvement in marriage preparation and divorce will precipitate a reawakening of marriage. The emergence of covenant marriage, the public debate over no-fault divorce, the resurgence of fault grounds, and Florida's enactment of its Marriage Preparation and Preservation Act are ramifications of this reawakening. Public concern over the frequency of divorce and the resulting adverse consequences for children and adults, indicate a change in attitude concerning marriage, divorce and family. Covenant marriage is …

Religious Liberty And The Politics Of Judicial Review, Robert A. Destro

Scholarly Articles

No abstract provided.

Double Jeopardy And Punishment: Why An As Applied Approach, As Applied To Separation Of Powers Doctrines, Is Unconstitutional, Todd W. Wyatt

Seattle University Law Review

This Comment will argue that an as applied approach allows the executive branch, whether at the state or federal level, to encroach into the legislative realm by rendering a statute unconstitutional as a result of the way the statute is administered. Section II of this Comment will begin by examining the history of the as applied and on its face double jeopardy approaches during the last 20 years. After a close examination of the decisions in Halper and Hudson in sections II.B and II.C, this Comment will explain why the holding of Hudson, though correct in its result, was …

The Section 5 Mystique, Morrison, And The Future Of Federal Antidiscrimination Law, Margaret H. Lemos, Samuel Estreicher

Faculty Scholarship

No abstract provided.

Rights, Rules And The Structure Of Constitutional Adjudication: A Response To Professor Fallon, Matthew D. Adler

Faculty Scholarship

Constitutional doctrine is typically rule-dependent. A viable constitutional challenge typically hinges upon the existence of a discriminatory, overbroad, improperly motivated, or otherwise invalid rule, to which the claimant has some nexus. In a prior article, Prof. Adler proposed one model of constitutional adjudication that tries to make sense of rule-dependence. He argued that reviewing courts are not vindicating the personal rights of claimants, but rather are repealing or amending invalid rules. IN a Commentary in this issue, Professor Fallon now puts forward a different model of constitutional adjudication, equally consistent with rule-dependence. Fallon proposes that a reviewing court should overturn …

Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler

Faculty Scholarship

Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a claimant …

Rights And Rules: An Overview, Matthew D. Adler, Michael C. Dorf

Faculty Scholarship

No abstract provided.

Constitutional Design: An Oxymoron?, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Constitutional Avoidance, Resistance Norms, And The Preservation Of Judicial Review, Ernest A. Young

Faculty Scholarship

No abstract provided.

Forgotten Federalism: The Takings Clause And Local Land Use Decisions, Melvyn R. Durchslag

Maryland Law Review

No abstract provided.

The Marshall Court And Property Rights: A Reappraisal, 33 J. Marshall L. Rev. 1023 (2000), James W. Ely Jr.

UIC Law Review

No abstract provided.

Judicial Institutions In Emerging Federal Systems: The Marshall Court And The European Court Of Justice, 33 J. Marshall L. Rev. 1063 (2000), Herbert A. Johnson

UIC Law Review

No abstract provided.

Marshall Misconstrued: Activist? Partisan? Reactionary?, 33 J. Marshall L. Rev. 1109 (2000), Jean Edward Smith

UIC Law Review

No abstract provided.

Constitutional Law: Hutchins V. District Of Columbia: The Constitutional Dilemma Over Juvenile Curfews, William L. Foreman

Oklahoma Law Review

No abstract provided.

Enforcement Of Federal Private Rights Against States After Alden V. Maine: The Importance Of Hutto V. Finney And Compensation Via Civil Contempt Proceedings, Gordon G. Young

Maryland Law Review

No abstract provided.

Employment Discrimination In Higher Education, Oren R. Griffin, Thomas P. Hustoles

Articles, Chapters in Books and Other Contributions to Scholarly Works

During 1999, the most significant development in employment discrimination law involving colleges and universities, by a large margin, was a series of cases affirming that Eleventh Amendment immunity from private money damage claims brought pursuant to various federal employment discrimination statutes applied to state colleges and universities. This development eventually culminated in the Supreme Court's year 2000 decision in Kimel v. Florida Board of Regents.' Numerous other interesting decisions were rendered that, although not creating any bold new law, either affirmed trends in past cases, or illustrated important practical implications for generally predicting judicial outcomes given certain fact patterns. After …

Federal Habeas In The Information Age, Wayne A. Logan

Scholarly Publications

One would be hard-pressed to identify a more extolled, and storied, aspect of the Anglo-American legal tradition than the writ of habeas corpus. Tracing its lineage back to the Magna Carta, the Great Writ was so revered by the Framers of the U.S Constitution that they expressly prohibited its suspension except in times of extreme governmental distress. Writing in 1868, Chief Justice Salmon Chase characterized habeas as "the most important human right in the Constitution," the ''best and only sufficient defense of personal freedom." Justice Brennan, writing almost one hundred years later, observed that the history of habeas "is …

Juvenile Curfews And Fundamental Rights Methodology, Calvin R. Massey

Faculty Scholarship

No abstract provided.

American Constitution-Making: The Neglected State Constitutional Sources, Marsha L. Baum, Christian G. Fritz

UC Law Constitutional Quarterly

Early in America's history, comprehensive compilations of existing state constitutions were printed and widely available to the public. These compilations have been largely overlooked as legal sources, but provide significant insights into this country's productive culture of constitutional history and law. This Article examines the distinct sources within the compilations, their variety and availability, and the guidance they provided to early American constitution-makers and the American people. As concise and authoritative sources, they were widely used and referenced during constitutional debates. Due to their availability to the public, these compilations helped democratize the process of constitution-making. A broader understanding of …

Restrictions On Corporate Spending On State Ballot Measure Campaigns: A Re-Evaluation Of Austin V. Michigan Chamber Of Commerce, Susan W. Dana

UC Law Constitutional Quarterly

The U.S. Supreme Court held in Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), that it is constitutional to restrict independent expenditures by corporations on behalf of political candidates because corporations can use wealth accumulated in the economic marketplace unfairly to distort the political marketplace of ideas. The Ninth Circuit has recently been asked to extend this "political marketplace" theory to state referendum and initiative campaigns in a case from Montana challenging restrictions on corporate spending on ballot measure campaigns. This article analyzes Austin's political marketplace theory, and concludes that although the theory can logically apply to ballot …

Disease Prevention And The Genetic Revolution: Defining A Parental Right To Protect The Bodily Integrity Of Future Children, Megan Anne Jellinek

UC Law Constitutional Quarterly

Recent advances in genetic and reproductive technology broaden the capacity of parents to make crucial life decisions for their children. In light of the current technological revolution, the scope of parental decision making seems to reach into the realm of embryonic screening and genetic selection. But can embryos be considered children? While labeling embryos as potential children might offer some protections for parents who wish to screen out harmful diseases, the label poses a serious threat to women's somewhat tenuous abortion rights. How then can parental autonomy rights and abortion rights coexist? Is there a constitutional test that protects both …

Not In My Womb: Compelled Prenatal Genetic Testing, Wendy E. Roop

UC Law Constitutional Quarterly

Rapid advances in genetic technology in recent years have profoundly affected prenatal care. What once seemed like science fiction is today a reality. Currently, physicians routinely offer prenatal testing for genetically linked diseases. In utero fetal surgery and genetic treatment is fast becoming widely available. This evolution in prenatal care has quickly outpaced corresponding legal developments, and raised difficult questions as to when prenatal genetic testing is appropriate and to what extend the state should be involved. Statutorily mandated neonatal screening and court ordered caesareans suggest a precedent upon which a woman might be compelled to undergo prenatal genetic testing. …

Supreme Court Voting Behavior: 1998 Term, Richard G. Wilkins, Scott Worthington, R. Chad Hales, Rachelle Fleming

UC Law Constitutional Quarterly

This Article, the fourteenth in a series, tabulates and analyzes the voting behavior of the United States Supreme Court. This particular study examines the Court's voting behavior during the 1998 Term. The Article attempts to determine whether individual Justices and the Court as a whole are voting more "conservatively," more "liberally," or about the same as compared with past terms.

Whether a vote is considered "conservative" or "liberal" depends upon the issues being decided. Generally, votes favoring the assertion of governmental power are "conservative," while those favoring claims of individual liberty are considered "liberal." The issues are categorized into ten …

Electronic Filing And Informational Privacy, Kyla Kitajima

UC Law Constitutional Quarterly

In the past few years, Internet use has grown rapidly. New technology and increased access of information are making everyday tasks and transactions easier and more efficient. By transmitting court information through an electronic medium, Internet filing is the newest way to process legal documents. Electronic filing increases judicial efficiency and cuts costs for attorneys, clients, and courts. However, the efficiency of electronic filing has a price; with the ease and convenience of the Internet comes a loss of informational privacy. Because Internet information is more readily accessible and easier to manipulate than traditional paper documents, there is a need …

Bad Girls And Good Sports: Some Reflections On Violent Female Juvenile Delinquents, Title Ix &(And) The Promise Of Girl Power, Cheryl Hanna

UC Law Constitutional Quarterly

In recent years, the number of female juvenile offenders has been increasing at a faster pace than that of their male counterparts. This Article explores the link between criminality and competition among women. Specifically, it examines the role that involvement in organized sports, or conversely, lack of competition, plays in the development of criminal behavior. Part I addresses the theme of female competition, violence, and sports, and draws conclusions from secondary interdisciplinary research and conversations with incarcerated juvenile females. Part II focuses upon Title IX of the Education Amendments of 1972 and suggests that the rationale behind gender equity in …

Toward The Restorative Constitution: A Restorative Justice Critique Of Anti-Gang Public Nuisance Injunctions, Joan W. Howarth

UC Law Constitutional Quarterly

The use of public nuisance injunctions against gangs and suspected gang members is an aggressive prosecutorial strategy upheld and even endorsed by a majority of the California Supreme Court in 1997 in People ex rel. Gallo v. Acuna. This Article critiques these injunctions through the lens of restorative justice principles. Restorative justice rests on the tenet that any crime is injurious, and that the best response is one that heals injuries caused to the victim, the community, and the offender. The Article argues that although anti-gang public nuisance injunctions share significant similarities with some restorative justice programs, the injunctions undermine …

Juvenile Curfews And Fundamental Rights Methodology, Calvin Massey

UC Law Constitutional Quarterly

A spate of cases in the federal courts of appeals has produced sharply divergent views upon the constitutionality of municipal laws establishing a nocturnal curfew for juveniles. The principal disagreement among the circuits concerns the appropriate level of scrutiny to be applied to such laws. Professor Massey canvasses the cases and comments on what these cases may tell us about the methodology of determining fundamental rights for due process purposes. As is often true of substantive due process issues, the dispute is really about the level of generality with which the putative fundamental right ought to be stated. Professor Massey …