Constitutional Law Commons^™

Eleventh Amendment Schizophrenia, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

This article argues that conflicting analytical strains run through the Supreme Court's recent majority opinions in the area of state sovereign immunity. The "supremacy" strain stresses that, despite the Eleventh Amendment, the states remain obligated to comply with federal law, and that the Constitution envisions the "necessary judicial means" to enforce these obligations against the state. These means include suits by the federal government, private suits for injunctive relief, and suits seeking damages from state officials in their individual capacities. Thus, according to the supremacy strain, state sovereign immunity is unimportant because it merely bars unnecessary means of enforcing the …

Second Amendment Symposium: Commentary, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Commentary on the Second Amendment given as part of the “Symposium on the Second Amendment.”

Wrong Turn In Cyberspace: Using Icann To Route Around The Apa And The Constitution, A. Michael Froomkin

Articles

The Internet relies on an underlying centralized hierarchy built into the domain name system (DNS) to control the routing for the vast majority of Internet traffic. At its heart is a single data file, known as the "root." Control of the root provides singular power in cyberspace.

This Article first describes how the United States government found itself in control of the root. It then describes how, in an attempt to meet concerns that the United States could so dominate an Internet chokepoint, the U.S. Department of Commerce (DoC) summoned into being the Internet Corporation for Assigned Names and Numbers …

The First Amendment's Petition Clause As An Alternative Basis For Challenging Voter Initiatives That Burden The Enactment Of Anti-Discrimination Protection For Gays, Lesbians, And Bisexuals, Kevin Francis O'Neill

Cleveland State Law Review

The purpose of my remarks today is to suggest that the First Amendment-specifically, the Petition Clause of the First Amendment provides an alternative basis for vindicating gay, lesbian, and bisexual rights in certain cases. At least in the context of voter initiatives that seek to abolish anti-discrimination protection for sexual orientation, the Petition Clause is a promising alternative to equal protection and substantive due process. My objective here was merely to plant a seed: to identify an alternative basis for vindicating the rights of gays, lesbians, and bisexuals-especially when combatting homophobic voter initiatives like those in Romer and Cincinnati. It's …

Alden V. Maine And State Sovereign Immunity Original Intent Or An Intent Congenial To The Court's Desires, Jeffrey H. Canja

Cleveland State Law Review

In Alden v. Maine the Supreme Court considered whether Congress, pursuant to its Article I powers, can subject a nonconsenting state to a private suit for damages in the state's own courts. Alternatively viewed, the question was whether a state has sovereign immunity which precludes such suits. The Supreme Court affirmed, holding that Article I of the Constitution does not grant Congress the power to subject a nonconsenting state to a private suit for damages in the state's own courts. The decision represents a direct extension of the federalism developed by the Court in Seminole Tribe of Florida v. Florida, …

Iadimarco V. Runyon And Reverse Discrimination: Gaining Majority Support For Majority Plaintiffs, Maria A. Citeroni

Cleveland State Law Review

This Note will argue that the Supreme Court should resolve the inconsistency within the federal system concerning the appropriate standard of proof in reverse discrimination disputes by adopting the reasoning set forth by the Third Circuit Court of Appeals. Section II will profile the history and purpose of Title VII, with emphasis on the "burden shifting" framework established by the Supreme Court to analyze claims of racial discrimination in the workplace. Section III will contrast the development of the "background circumstances" test applied by lower federal courts to discrimination claims brought by majority plaintiffs with the Supreme Court's recognition of …

The Culpability, Or Mens Rea, "Defense" In Arkansas, J. Thomas Sullivan

Law Faculty Scholarship

No abstract provided.

The Constitutionality Of The Children's Internet Protection Act, Adam Horowitz

St. Thomas Law Review

Congress is presently considering the Children's Internet Protection Act ("CIPA"). CIPA requires schools and libraries that have computers with Internet access to certify to the Federal Communications Commission (FCC) that they (1) have selected a technology for such computers which filters or blocks access to child pornography and obscene material on the Internet; and (2) are enforcing a policy to ensure the operation of such technology during any use of such computers by minors Schools and libraries failing to submit a good-faith certification to the FCC within thirty days of the bill's enactment are ineligible to receive or retain the …

Another Attack On The Fast Track, Constance Z. Wagner

All Faculty Scholarship

Although the Congressional fight over the North American Free Trade Agreement (NAFTA) may have ended when the NAFTA Implementation Act passed by a narrow margin, the controversy surrounding NAFTA has not. In Made in the USA Foundation v. United States, the United Steel Workers of American and others asserted that NAFTA was void because it had been approved as a congressional-executive agreement when it should have been approved as a treaty under Article II, Clause 2 of the U.S. constitution. The author discusses the constitutional law issue raised by the lawsuit, namely the validity of the long-standing U.S. practice of …

The Scope Of 'High Crimes And Misdemeanors' After The Impeachment Of President Clinton, Neil J. Kinkopf

Faculty Publications By Year

Constitutional theorists have begun focusing a great deal of attention on constitutionalism outside the judiciary. As Professor Neal Katyal points out in his insightful paper, the impeachment and trial of President Clinton provide an outstanding opportunity to reflect upon the practice of constitutionalism outside the courts. During these episodes, the House of Representatives and the Senate confronted numerous constitutional questions, but rarely resolved them on the basis of an identifiable construction of the Constitution's meaning. There is, however, at least one important question of constitutional interpretation that the House of Representatives must be understood to have resolved: the scope of …

The Constitutionality Of Racial Classifications In Public School Admissions, Kevin D. Brown

Articles by Maurer Faculty

No abstract provided.

Religion And Education: Whither The Establishment Clause?, Martha Mccarthy

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.

Vouchers And Beyond: The Individual As Causative Agent In Establishment Clause Jurisprudence, Laura S. Underkuffler

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.

Confrontation Clause, Doris Waldman

Touro Law Review

No abstract provided.

Supreme Court Federalism Decisions, Leon Friedman

Touro Law Review

No abstract provided.

First Amendment Cases In The 1998-99 Term: The Calm Before The Storm, Joel M. Gora

Touro Law Review

No abstract provided.

Due Process, Patricia Becker

Touro Law Review

No abstract provided.

Establishment Of Religion, Anthea M. Des Etages

Touro Law Review

No abstract provided.

Local Elections, Roger Moran

Touro Law Review

No abstract provided.

Due Process, Magdale L. Labbe

Touro Law Review

No abstract provided.

Search And Seizure, Scott Sorel

Touro Law Review

No abstract provided.

Preemption, Scott Sorel

Touro Law Review

No abstract provided.

Preemption, Roger Moran

Touro Law Review

No abstract provided.

Trial By Jury, Diana Coen

Touro Law Review

No abstract provided.

Justice Murphy And The Fifth Amendment Equal Protection Doctrine: A Contribution Unrecognized, Matthew J. Perry

UC Law Constitutional Quarterly

As the title indicates, this article calls attention to Justice Frank Murphy's jurisprudence which, it claims, helped develop an Equal Protection component of the Fifth Amendment's Due Process Clause as applied to actions of the federal government. This doctrine was eventually adopted by the Supreme Court in Boiling v. Sharpe, a companion case to Brown v. Topeka Board of Education. To present its argument, this article focuses on Justice Murphy's opinions in three infamous WW II cases involving war-time measures curtailing Japanese-Americans' civil rights and liberties, and a lesser-known labor case involving discrimination against African-American railroad workers. After examining the …

The Evolving Police Power: Some Observations For A New Century, Glenn H. Reynolds, David B. Kopel

UC Law Constitutional Quarterly

The conventional wisdom about the scope of state police powers goes like this: in the early days of the Republic, legitimate regulation existed only to prevent concrete harm to specified interests. Sometime around the previous turn of the century, the scope of state police powers expanded; states could regulate as they chose so long as they claimed to be working to promote the public safety, welfare, or morality. This article examines a number of recent state constitutional decisions having to do with sodomy, parenting, marriage, and procreation and argues that in deciding these cases the courts are returning to the …

First Amendment Protection For Newsgathering: Applying The Actual Malice Standard To Recovery Of Damages For Intrusion, Merrit Jones

UC Law Constitutional Quarterly

The privacy tort of intrusion is an increasingly popular claim against news media defendants, in part because it lacks the constitutional protections of other privacy torts and claims based on publication or broadcast. This note argues that intrusion claims thus undermine those constitutional protections. As a solution, it proposes that a plaintiff be required to show actual malice by a news media defendant in order to recover punitive damages for intrusion.

Elian Or Alien--The Contradictions Of Protecting Undocumented Children Under The Special Immigrant Juvenile Statute, Gregory Zhong Tian Chen

UC Law Constitutional Quarterly

In 1990, Congress enacted the Special Immigrant Juvenile ("SIJ") statute establishing a new form of immigration relief for undocumented children who have suffered from family abuse, neglect, or abandonment. The new law called for cooperation between federal immigration and state child welfare authorities in the implementation of the SIJ law, particularly with regard to jurisdictional and custodial power. Since the late nineteenth century, the federal government has asserted and maintained control over immigration matters, including determinations of individual immigration status. State and local governments, however, have historically taken principal responsibility for protecting the health, safety, and welfare of children within …

The Education Crisis For Children In The California Juvenile Court System, Kathleen Kelly

UC Law Constitutional Quarterly

In all the debate about the burgeoning number of youth incarcerated in California juvenile justice systems or living in foster care because of abuse and neglect, few have recognized the growth of an immense and insidious crisis affecting the children supervised by the juvenile court. The crisis lies in the overwhelming number of children - court dependents and delinquents alike - who suffer from educational deficiencies and disabilities. This Article addresses the educational needs of both juvenile delinquents and dependents (victims of child abuse and neglect). Next, it explores numerous legal avenues to tackle this crisis, which includes relying on …

Constitutionality Of State And Local Selective Purchasing Legislation: A 9-0 Supreme Court Decision In Favor Of And In Defeat Of Plaintiff, Rebecca S. Hartley

UC Law Constitutional Quarterly

In a 9-0 decision handed down in 2000, the Supreme Court struck down a Massachusetts selective purchasing law that restricted state agencies from trading with companies doing business in Burma. The Court based its decision on the narrow grounds that the law violated the Supremacy Clause of the U.S. Constitution. In the wake of so limited a decision, a number of constitutional questions remain unanswered regarding the rights of states to enact laws intruding upon federal foreign affairs.

This article examines three of the main areas of constitutional challenges to state actions in the foreign affairs arena from current orthodox …