Constitutional Law Commons^™

Fundamentals Of Section 1983 Litigation, Martin A. Schwartz

Scholarly Works

No abstract provided.

Prayer In Public Schools After Santa Fe Independent School District, Mark W. Cordes

Kentucky Law Journal

No abstract provided.

The Supreme Court 2000 Term--Leading Cases, Good News Club V. Milford Central School, 121 S. Ct. 2093 (2001), Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

After the Supreme Court held in Widmar v. Vincent that state universities could not constitutionally deny religious groups access to facilities generally available to student groups, a number of school districts authored access policies that were designed to create “limited public forums.” These policies delineated the categories of activities for which school property could be used, and indicated that religious activities were not among them. In Lamb's Chapel v. Center Moriches Union Free School District, however, the Supreme Court struck a blow to the notion that school districts could employ the limited public forum approach to exclude religious activities from …

Cybergossip Or Securities Fraud? Some First Amendment Guidance In Drawing The Line., Lyrissa Lidsky, Michael Pike

Faculty Publications

Fifteen-year-old Jonathan Lebed, the youngest person ever pursued by the SEC in an enforcement action, made over $800,000 in six months by promoting stocks on Internet message boards. Using several fictitious screen names, Jonathan posted hundreds of messages on Yahoo! Finance, hyping selected over-the-counter stocks and then promptly selling his pre-purchased shares as soon as the stock prices rose.

Publicly, the SEC painted a picture-perfect case of securities fraud. Yet, the SEC forced disgorgement of only $285,000 of Jonathan's profits, leaving many observers to wonder why the resolution of this supposedly clear-cut case left its teenaged perpetrator with over $500,000. …

Ohio: A Microcosm Of Tort Reform Versus State Constitutional Mandates, Stephen J. Werber

Law Faculty Articles and Essays

Tort reform emanates, for our purposes, from two primary bodies: state judicial and legislative branches. The vast panoply of congressional and regulatory federal action that bears on the protections afforded and rights to recover for persons within their ambit is a subject for another day. Similarly, the rare areas in which the Supreme Court of the United States establishes federal common law are subjects for another day. On a national scale, the impetus for state legislative reform action can be found in a series of landmark decisions that were soon adopted, in largely similar form, by almost all state supreme …

The Godless Graduation Ceremony? The State Of Student-Initiated Graduation Prayer After Lee Vs Weisman And Santa Fe Independent School District V. Doe, Devon M. Lehman

University of Colorado Law Review

No abstract provided.

The 2000-2001 Supreme Court Term: Section 1983 Cases, Martin A. Schwartz

Scholarly Works

No abstract provided.

Should Juries Be Informed That Municipality Will Indemnify Officer’S 1983 Liability For Constitutional Wrongdoing?, Martin A. Schwartz

Scholarly Works

No abstract provided.

Discrimination Cases In The 2000 Term, Eileen Kaufman

Scholarly Works

No abstract provided.

Palazzolo V. Rhode Island: The Supreme Court's Expansion Of Subsequent Owners' Rights Under The Takings Clause (Symposium: The Thirteenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.

The Latest Word From The Supreme Court On Punitive Damages (Symposium: The Thirteenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.

Clearly Canadian--Hill V. Colorado And Free Speech Balancing In The United States And Canada, Donald L. Beschle

UC Law Constitutional Quarterly

Two doctrines have equally influenced and informed the debate regrading the scope of the First Amendment free speech guarantee: absolutism versus the balancing of competing interests. Despite the language of the United States Constitution that suggests the application of absolutes, the courts have often resorted to balancing in the resolution of cases. This Article examines the debate by comparing the different approaches taken by the courts in the United States and Canada. This examination reveals that perhaps the two doctrines do not need to negate each other in their application, and that a recent decision by the United States Supreme …

Privileges Or Immunities: The Missing Link In Establishing Congressional Power To Abrogate State Eleventh Amendment Immunity, William J. Rich

UC Law Constitutional Quarterly

When the Supreme Court ruled that Congress could not rely upon its powers under Article I to abrogate Eleventh Amendment immunity, it failed to consider the significance of the Fourteenth Amendment Privileges or Immunities Clause. In Congressman Bingham's final speech to Congress calling for approval of that Amendment, he argued that the Privileges or Immunities Clause barred states from attempts to nullify federal law. Subsequent Supreme Court interpretations, beginning with the Slaughter-House Cases, reinforced this understanding. When Congress uses its Article I authority to establish rights, privileges, or immunities of the United States citizens, section five of the Fourteenth Amendment …

Tracking In An Era Of Standards: Low-Expectation Classes Meet High-Expectation Laws, Kevin G. Welner

UC Law Constitutional Quarterly

This article explores racial resegregation of students through the practice of tracking - the grouping of students into separate classrooms pursuant to perceived academic ability. It places tracking within its larger historical context, as a means for white parents to feel secure about their children's education, and presents a review of scholarly literature concerning the characteristics and application tracking. The main body of the article then sets forth recent analyses of data from two school districts, investigating the harmful and segregative effects of tracking. The article ends by examining aspects of tracking that leave it susceptible to legal challenge, considering …

Church-State Constitutional Issues: Making Sense Of The Establishment Clause And That Godless Court?: Supreme Court Decision On Church-State Relationships (Book Reviews), Michael Ariens

Faculty Articles

No abstract provided.

First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz

Scholarly Works

No abstract provided.

Too Young To Understand--Extending Equal Access To All Children In Public Schools Regardless Of Age, David Woodcock

St. Thomas Law Review

Finding the right mix of church and state is not an easy task for our society. This is especially true in our public schools. Everyday, millions of elementary school students meet after school in public school facilities to participate in Girl Scouts, Boy Scouts, Cub Scouts, Brownies, and 4-H Clubs. These organizations share the goals of preparing young boys and girls to grow into men and women of good morals and character. Religious organizations that share these goals, however, are denied access to school facilities simply because they have a religious point of view. School districts have told children that …

The Three Nixon Cases And Their Parallels In Malaysia, Myint Zan

St. Thomas Law Review

During the period from 1974 to 1982 the Supreme Court of the United States decided three cases in which the late Richard M. Nixon, the 37th President of the United States of America was involved as an appellant/ petitioner. All three cases decided by the United States Supreme Court bore the name of Richard Nixon in the title of the cases. This Article will attempt to discern some of the legal and constitutional issues which have arisen from these "Three Nixon" cases. Some of the issues in these cases would inevitably have arisen out of issues that are peculiar to …

Making Sense Out Of Nevada V. Hicks: A Reinterpretation, Alex Tallchief Skibine

St. Thomas Law Review

This article will first, summarize the law as it was before Hicks and second, focus on the various concurring opinions found in Hicks. Then, it will analyze the nature of the tribal right to exclude in an attempt to reconcile the results reached by the U.S. Supreme Court in terms of federalist principles. The article continues by arguing that Hicks can be conceived of as a special case requiring a clear statement from Congress before tribal jurisdiction can be judicially acknowledged. Finally, the article concludes by debating whether tribal powers, having been judicially divested, can be resuscitated through legislation, and …

Challenges To Racial Redistricting In The New Millennium: Hunt V. Cromartie As A Case Study, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

No abstract provided.

The Electoral College, The Right To Vote, And Our Federalism: A Comment On A Lasting Institution, Luis Fuentes-Rohwer, Guy-Uriel E. Charles

Articles by Maurer Faculty

The Electoral College has been subject to a constant barrage of criticism. This raises an obvious question: how has the College managed to survive despite its lack of popularity, its opacity and its generally controversial nature?

Commentators look to the wisdom and staying power of the founding generation as well as to the force of history and tradition. In this Article, we look carefully at a third possibility. That is, we look to the foundation of our political structure and the nature of our democratic commitments.

In this vein, we are particularly intrigued by the question of electoral legitimacy. To …

Are We Buyers Or Hosts? A Memetic Approach To The First Amendment, Jeffrey E. Stake

Articles by Maurer Faculty

The First Amendment is often analyzed using the metaphor of the marketplace of ideas. Making use of memetic analysis, this article suggests that ideas should not be treated as inert products that we choose but as living things that sometimes exert some influence over their environment. Some of the ideas are more adept at surviving than others, and the ones that survive will not necessarily be good for humans. To account for the ability of some memes to replicate dangerously, the First Amendment should be read to allow governments to punish a speaker who advocates or threatens physical injury (other …

Direct Democracy Is Not Republican Government, Steven William Marlowe

Seattle University Law Review

This Article will initially explain the examples of direct democracy in the states of Washington and Oregon. It will then analyze the United States Constitution's Guarantee Clause. Finally, this Article will argue that state initiative and referendum provisions are inconsistent with a republican form of government and that laws passed through the use of this process are unconstitutional.

The Craft Of Due Process, Kevin C. Mcmunigal

Faculty Publications

Response to Professor Israel's presentation "On the Costs of Uniformity and the Prospects of Dualism in Constitutional Criminal Procedure."

Dissing Congress , Ruth Colker, James J. Brudney

Faculty Scholarship

This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and …

The End Of School Desegregation And The Achievement Gap, David J. Armor

UC Law Constitutional Quarterly

After nearly five decades of school desegregation mandated by federal courts, school districts throughout the nation are being released from court orders, leading some civil rights proponents to complain that ending school desegregation will deprive minority students of educational benefits. This article argues that ending school desegregation will not have any appreciable impact on the academic achievement of African American students. To the extent that desegregation had academic benefits, those benefits have already occurred. Despite the extensive desegregation of American schools during the 1970s and 1980s, a large black-white achievement gap remains, and there is credible evidence that this gap …

The Consequences Of School Desegregation: The Mismatch Between The Research And The Rationale, Amy Stuart Wells

UC Law Constitutional Quarterly

This article challenges the narrow way in which the "consequences" of school desegregation have been defined - namely as measured by standardized test scores alone. This article serves as a reminder that in the early, pre-Brown cases, the Supreme Court argued that the purpose of school desegregation was to assure "wider association" for African American students who had been cut off from high-status educational institutions and the honor and social networks they confer. The bulk of social science research on school desegregation has ignored this rationale as researchers mostly examined students' test scores after only one or two years of …

Anti-Vibrator Legislation: The Law Is On Shaky Ground, Nicole Schilder

UC Law Constitutional Quarterly

This Note confronts the absurdity of laws that ban the sale and production of sexual devices. These laws are imbedded in the obscenity statutes of Alabama, Georgia, Mississippi, Texas, and Virginia. The Note commences with a history of sexual devices in the United States. The Note proceeds to use the 11th Circuit case of Williams v. Pryor and cases from Colorado, Georgia, Kansas, Louisiana, and Texas to demonstrate that anti-sexual device statutes are unconstitutional because they infringe on the privacy right or, in the alternative, are overbroad and thus must fail under the rational basis test.

David Versus Goliath: A Law School Debate About Bush V. Gore, H. Lee Sarokin

San Diego Law Review

For the first time in America’s history, the Supreme Court has, in effect, selected the President of the United States. The case was analogous to a claim that a jury verdict was tainted. The Court, in this instance, knew who would win if the verdict was permitted to stand, and who was likely to win if the jury was permitted to continue its deliberations. It was this knowledge that made the decision so sensitive and challenged the integrity and the role of the Court so profoundly.

The Wrong Line Between Freedom And Restraint: The Unreality, Obscurity, And Hcivility Of The Fourth Amendment Consensual Encounter Doctrine, Daniel J. Steinbock

San Diego Law Review

restraint is clearly one of the most important, and one the law should be most anxious to get right. On the one side lies freedom to move around physically-the essence of what most people mean by "liberty." While not explicitly defined in the Constitution, this liberty is protected by several of its provisions: the due process clauses of the Fifth and Fourteenth Amendments,' the right to habeas corpus, the Thirteenth Amendment's ban on slavery, and the Fourth Amendment's protection against unreasonable seizures. Together they ensure against interference with personal freedom of movement in the form of bondage, incarceration, civil confinement, …