Constitutional Law Commons^™

The Constitutional Value Of Dialogue And The New Judicial Federalism, Lawrence Friedman

UC Law Constitutional Quarterly

Notwithstanding that the new judicial federalism is no longer new, the question remains whether there is a legitimate basis for state supreme courts to interpret provisions of state constitutions that parallel provisions of the United States Constitution differently than the United States Supreme Court has interpreted the latter. The Author suggests that the interpretation of cognate state constitutional provisions by state court is institutionally legitimate and normatively desirable within the framework of federalism. The legitimacy of the practice is supported by the constitutional value of dialogue - that is, the value that attaches to discourse about law and governance when …

Congress' Property Clause Power To Prohibit Taking Endangered Species, Sophie Akins

UC Law Constitutional Quarterly

In 1995, the Supreme Court in United States v. Lopez reined in Congress' commerce powers by holding that Congress may only regulate activities that substantially affect interstate commerce. Five years later, the Court in United States v. Morrison reaffirmed Lopez and held further that the Commerce Clause only supports Congress' regulation of activities that are economic in nature. This Note examines the repercussions of Lopez and Morrison on Congress' power to enact the Endangered Species Act under the Commerce Clause. Most scholars and courts seem to agree that the Endangered Species Act will fail under the Court's recent Commerce Clause …

Ohio’S Dna Databank Statute, Paul C. Giannelli

Faculty Publications

No abstract provided.

United States Supreme Court: 2000 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

Beneficial And Unusual Punishment: An Argument In Support Of Prisoner Participation In Clinical Trials, Sharona Hoffman

Faculty Publications

Currently, approximately 1.8 million people are incarcerated in the United States at any given time. A disproportionately large percentage of the prisoner population has serious illnesses, such as AIDS and tuberculosis. Prisoners most often, however, are barred from participation in clinical trials, even when conventional therapy has failed, and experimental treatment might provide them with their only hope of survival.

Much of the reluctance to include prisoners in biomedical research is based on history. In the past, prisoners have been severely abused and even tortured in medical studies conducted in the Nazi death camps, Japanese prisoner camps, and correctional facilities …

Can Public Schools Really Permit Religious Speech Without Promoting Religion - The Struggle To Accommodate But Not Establish Religion In Chandler V. James, Lynne A. Rafalowski

Villanova Law Review (1956 - )

No abstract provided.

Criminal Aliens Get Pinched: Sandoval V. Reno, Aedpa's And Iirira's Effect On Habeas Corpus Jurisdiction, Matthew J. Droskoski

Villanova Law Review (1956 - )

No abstract provided.

Resolving The Dissonant Constitutional Chords Inherent In The Federal Anti-Bootlegging Statute In United States V. Moghadam, Keith V. Lee

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

The Arbitrary Path Of Due Process, Harry F. Tepker

Faculty Articles

No abstract provided.

The Origins And Application Of The Military Deference Doctrine, John F. O'Connor

Georgia Law Review

Although the military deference doctrine is often thought to have originated in Supreme Court decisions in the nineteenth century, the doctrine actually is of fairly recent vintage, being traceable to four decisions issued by the Burger Court between 1974 and 1976. The military deference doctrine is (and should be) limited to constitutional issues where courts weigh the extent of the government's interest in determining the constitutionality of the practice at issue. In addition,although the doctrine is oft- criticized by legal scholars,it remains a viable and robust part of the Supreme Court's constitutional jurisprudence

Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz

Scholarly Works

No abstract provided.

Defamation Per Se: Defamation By Mistake?, Michael K. Steenson

Faculty Scholarship

Defamation is a complicated tort, due in part to the differing rules that govern libel and slander, the two branches of the tort. The focus of this essay is on “defamation per se,” its origins in Minnesota, and the consequences of its misapplication. The essay opens with a short statement of standard defamation principles, followed by a short statement of the prevailing United States Supreme Court decisions, imposing First Amendment limitations on common law defamation claims, and the Minnesota cases that follow them. The next part analyzes a string of Minnesota cases that establish the foundation for Minnesota defamation law, …

University Of Richmond Law Review

University of Richmond Law Review

No abstract provided.

Against Constitutional Law (Populist Or Otherwise), Michael Mandel

University of Richmond Law Review

Mark Tushnet has written a great critique of constitutional judicial review. With his sure grasp of the scholarship, his commit- ment to the issues and the real people behind them, and his methodical, flawless reasoning, he has effectively blasted the theoretical foundations of judicial constitutional law to smithereens. As such, he has made a valuable contribution to legal scholarship that will remain so for a long time to come.

A Right To Confrontation Or Insinuation? The Supreme Court's Holding In Portuondo V. Agard, J. Fielding Douthat Jr.

University of Richmond Law Review

Imagine that you are charged with a crime that you did not commit. Forced to attend your own trial, you choose to testify on your own behalf. The prosecutor conducts his best spin to discredit you, but his attempts are largely unsuccessful. Not only is your story consistent with that of other witnesses, but it is a plausible accounting of the disputed facts. The reason: your story is the truth. Nevertheless, in summation, the prosecutor attacks your credibility. His argument, however, addresses no inconsistencies, no physical evidence, and no concrete reason to cast doubt on your story. Instead, he argues …

Constitutional Gravity: A Unitary Theory Of Alternative Dispute Resolution And Public Civil Justice, Richard C. Reuben

Faculty Publications

Under the traditional bipolar model, civil dispute resolution is generally divided into two spheres: trial, which is public in nature and therefore subject to constitutional due process, and alternative dispute resolution (ADR), which is private in nature and therefore not subject to such constraints. In this article, Professor Richard Reuben proposes a unitary understanding of public civil dispute resolution, one that recognizes that ADR is often energized by state action and thus is constitutionally required to comply with minimal but meaningful due process standards. Depending upon the process, such standards might include the right to an impartial forum, the right …

Out The Window--Prospects For The Epa And Fmla After Kimel V. Florida Board Of Regents, Brian E. Ray

Law Faculty Articles and Essays

This note considers how the heightened scrutiny standard that the Court has used in gender cases under the Fourteenth Amendment will impact the congruence and proportionality test that the Court has applied in a recent series of cases examining congressional power under Section 5 of the Fourteenth Amendment. The purpose of this note is twofold First it closely analyzes Kimel v. Florida Board of Regents, the Court's most recent decision concerning Section 5 and argues that the Court's analysis in Kimel indicates that a statute that involves heightened scrutiny has a much greater possibility of meeting the standards the Court …

Constitutional Chrononomy, Richard Kay

Faculty Articles and Papers

Every constitution defines and is defined by a period in time. Like all law the creation and application of constitutions require reference to the past and future respectively Every instance of constitution-making is an attempt to control behavior over an extended period of time. Therefore constitutions will be drafted, both in style and substance, to reflect that temporal ambition. The effectiveness of a constitution also requires that its interpretation makes reference to the understanding of its rules held by the constitution-makers. As a result, and notwithstanding the efforts to make it suitable over a long period by its creators, every …

Review, Inherent Rights, The Written Constitution, And Popular Sovereignty: The Founders' Understanding, Richard Kay

Faculty Articles and Papers

Reviewing Thomas B. McAffee, Inherent Rights, the Written Constitution, and Popular Sovereignty: The Founders' Understanding. Westport, Conn.: Greenwood Press, 2000

Houlton Citizens' Coalition V. Town Of Houlton: Is An Open And Competitive Bidding Process Really The Solution To National Waste Disposal Problems, Jason Barocas

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Government Of The Good , Abner S. Greene

Faculty Scholarship

Webster's definition of the noun "good" begins: "something that possesses desirable qualities, promotes success, welfare, or happiness, or is otherwise beneficial." Whether government should promote the good, and in particular whether government should use its powers of persuasion-its "speech," if you will-to promote contested views of the good, is the subject of this Article. I will argue that, as a matter of political theory, government in a liberal democracy not only may promote contested views of the good, but should do so, as well. Further, nothing in our constitutional jurisprudence demands otherwise, assuming certain conditions are met. In taking these …

The Marshall Court And The European Court Of Justice, 33 J. Marshall L. Rev. 1197 (2000), Charles F. Hobson

UIC Law Review

No abstract provided.

Silencing Speech In The Workplace: Re-Examining The Use Of Specific Speech Injunctive Relief For Title Vii Hostile Environment Work Claims, 34 J. Marshall L. Rev. 321 (2000), Sonali Das

UIC Law Review

No abstract provided.

Absent Abstinence Accountability, Elizabeth Arndorfer

UC Law Constitutional Quarterly

Teenage sexual activity has important health and fiscal implications for the United States. In response to this, Congress has in the past increased federal funding for abstinence-only education programs. These federally funded abstinence-only education programs stress abstinence as the only viable option for teenagers and provide no information on other methods of contraception. Congress in the new term must decide whether to reauthorize funds for these abstinence-only programs. This Article reviews the history of how these abstinence-only programs acquired federal backing, the methods employed by these abstinence-only programs, and whether these abstinence- only programs are effective. This Article argues that …

Nostalgic Federalism, Judith Olans Brown, Peter D. Enrich

UC Law Constitutional Quarterly

Among the most significant decisions of the Supreme Court over the past decade have been those limiting the scope of congressional authority to act in ways that infringe on the responsibilities and prerogatives of the states. In this article, we review four clusters of such cases - those constraining Congress' powers under the Commerce Clause, those refraining the parameters of section five of the Fourteenth Amendment, cases clarifying the limits on federal authority implicit in the Tenth Amendment, and those expanding the reach of state sovereign immunity. Despite the doctrinal diversity among these cases, the Authors argue that they all …

The Path Of American Religious Liberty: From The Original Theology To Formal Neutrality And An Uncertain Future, Daniel O. Conkle

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

Tort Liability, Religious Entities, And The Decline Of Constitutional Protection, Scott C. Idleman

Indiana Law Journal

Symposium: Religious Liberty at the Dawn of a New Millennium held at Indiana University School of Law-Bloomington on April 9, 1999.

A First Amendment Compass: Navigating The Speech Clause With A Five-Step Analytical Framework, Kevin F. O'Neill

Law Faculty Articles and Essays

This Article is designed to serve as a First Amendment “compass,” explaining the Speech Clause while offering a systematic method for analyzing any claim asserted under it. The need for this Article stems from the fact that First Amendment law is more than ever a labyrinth. For students, lawyers, and judges alike, it is difficult even to identify--much less to distinguish and apply-- the various strands of applicable precedent. This is because the Supreme Court has developed a dense mass of overlapping doctrines: drawing distinctions between content-based1 and content-neutral restrictions; drawing further distinctions between fully-protected and “low-level” categories of expression; …

Eleventh Amendment Federalism And State Sovereign Immunity Cases: Direct Effect On Section 1983?, Steven H. Steinglass

Law Faculty Articles and Essays

I was asked to address briefly the impact of the Supreme Court's recent Eleventh Amendment, federalism, and state sovereign immunity decisions on Section 1983 litigation. These cases are unlikely to have any direct or significant impact on Section 1983 litigation in the state or federal courts. On the other hand, these decisions will likely have a significant impact on non-Section 1983 litigation, including non-Section 1983 civil rights litigation. For example, a few weeks ago the Supreme Court heard an argument in an Age Discrimination and Education Act (hereinafter "ADEA") case involving claims brought directly against the state. The recent Supreme …

Case Notes: State V. Jackson: Warning - Roadblock Ahead! Louisiana Creates Log Jam Of Search And Seizure Analysis, Marc L. Roark

Articles, Chapters in Books and Other Contributions to Scholarly Works

No abstract provided.