Constitutional Law Commons^™

Federalism And The Rehnquist Court, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Due Process And Kentucky's Non-Claim Statutes: A Call For Legislative Revision, Mark A. Noel

Kentucky Law Journal

No abstract provided.

Prior Restraint In Wartime, Paul E. Salamanca

Law Faculty Popular Media

In this article for Bench & Bar Magazine (the Kentucky Bar Association's magazine), Professor Paul E. Salamanca discusses the First Amendment during times of war or conflict.

A Matter Of Normative Judgment: Brentwood And The Emergence Of The "Pervasive Entwinement" Test, Michael A. Culpepper

University of Richmond Law Review

The Fourteenth Amendment remains the great Rorschach test of one's underlying jurisprudential beliefs. For those of a "progressive" bent, the amendment is a "sweeping mandate," while those more inclined toward powdered wigs and judicial formalism criticize the amendment as an instrument of "freewheeling judicial] lawmaking." It is a philosophical impasse, one that centers around the apparently ambiguous prohibition against deprivations of due process and denials of equal protection. Unfortunately, the strictures from the high court and Congress remain equally ambiguous-particularly in the realm of state action. Metaphors, such as "winks and nods," "sifting facts and weighing circumstances " and "under …

Texas V. Cobb: A Narrow Road Ahead For The Sixth Amendment Right To Counsel, Beth G. Hungate-Noland

University of Richmond Law Review

Raymond Cobb stabbed sixteen-month-old Kori Rae Owings's mother in the stomach while he was attempting to steal the stereo from their home. He then took the mother's body into the woods behind the house.

Note, A Rule Unfit For All Seasons: Monitoring Of Attorney-Client Communication Violates Privilege And The Sixth Amendment, Avidan Y. Cover

Faculty Publications

No abstract provided.

Not Because They Are Brown, But Because Of Ea*: Why The Good Guys Lost In Rice V. Cayetano, And Why They Didn't Have To Lose, Gavin Clarkson

Michigan Journal of Race and Law

Part II of this Article therefore reviews the history of Native Hawaiians in the broader context of the history of federal Indian law, focusing on the vacillating congressional policies regarding Indians and how those policies almost always treated Indian tribes as political entities rather than ethnic communities. Part III reviews and analyzes the procedural history of the Rice case and its resolution by the Supreme Court. Part IV concludes with the argument that constitutionally-permissible alternative methodologies exist for accomplishing the same objective of self-determination for Native Hawaiians

Federalism In Environmental Protection, Peter A. Appel

Scholarly Works

In the last seven years, the Supreme Court has decided several cases that potentially alter the balance between the states and the federal government. Although these decisions have generated much controversy, in some ways they only address some important federalism questions at the periphery. Professor Appel examines four areas of environmental law that the recent decisions either only inform or do not address at all: cleanup of hazardous waste sites; the effect of state enforcement actions on citizen enforcement brought under federal environmental laws; the effect of state enforcement actions on federal enforcement actions; and the management of federal lands …

"No Armed Bodies Of Men" -- Montanans' Forgotten Constitutional Right (With Some Passing Notes On Recent Environmental Rights Cases), Robert G. Natelson

Faculty Law Review Articles

This article discusses whether Article II, Section 33 of the Montana Constitution is targeted at importations of "armed bodies of men" by the government, by private parties, or by both. The article also reviews recent "environmental rights" decisions by the Montana Supreme Court to illustrate some problems in judicial review of a constitutional right against private parties.

The Indecency Of Unsolicited Sexually Explicit Email: A Comment On The Protection Of Free Speech V. The Protection Of Children, Monique Redford

Seattle University Law Review

Because the state of Washington has a compelling interest in protecting the moral and psychological welfare of its children, the current spam law should be amended to also proscribe the transmission of unsolicited sexually explicit commercial email within its borders. This article argues that such an amendment would not violate either the dormant Commerce Clause or the First Amendment. In support of this thesis, section II first addresses the pervasive problem of children-not just adults-receiving sexually explicit material via unsolicited email. Then, sections III through V discuss the implications of the dormant Commerce Clause, the First Amendment, and the policy …

Is The Renquist Court An "Activist" Court? The Commerce Clause Cases, Randy E. Barnett

University of Colorado Law Review

No abstract provided.

What To Do With Bin Laden And Al Qaeda Terrorists?: A Qualified Defense Of Military Commissions And United States Policy On Detainees At Guantanamo Bay Naval Base, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission.

The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly …

Waste Management Holdings V. Gilmore: The Anything But Dormant Problem Of Interstate Waste, Mia Korot

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Courts' Inconsistent Treatment Of Bethel V. Fraser And The Curtailment Of Student Rights, 36 J. Marshall L. Rev. 181 (2002), David L. Hudson

UIC Law Review

No abstract provided.

Beyond The Zero-Sum Game: Toward Title Vii Protection For Intergroup Solidarity, Noah D. Zatz

Indiana Law Journal

No abstract provided.

Reasons To Eschew Federal Lawmaking And Embrace Common Law Approaches To Genetic Discrimination, S. Candice Hoke

Law Faculty Articles and Essays

The main charge to me is to show you alternatives other than, for instance, federal legislation that could be deployed to rectify genetic discrimination.You may have noticed that in our conference materials, and in a number of the presentations, there has been either an explicit or an implicit call along the lines of “there ought to be a law that ...” Professor Hoffman and I agree: there ought to be some laws, but I want to talk to you a little bit about two possible, two real goals here.One is to ask you to critically evaluate whether a federal statute …

Zelman V. Simmons-Harris And The Private Choice Doctrine, Laura T. Rahe

Cleveland State Law Review

In Zelman, the Court examined the constitutionality of an Ohio pilot program that took effect in the Cleveland City School District. One of the program's provisions permitted parents to use a tuition voucher for their children to attend public or private schools, including religious schools. The statute authorizing the program ensured that participating private schools remained affordable for the most disadvantaged children, and required that the schools refrain from "advocat[ing] or foster[ing] unlawful behavior or teach[ing] hatred of any person or group on the basis of race, ethnicity, national origin or religion." The Cleveland program exemplifies one attempt, informed by …

Lincoln, Marshall And The Judicial Role, David F. Forte

Law Faculty Articles and Essays

Abraham Lincoln understood judicial activism. For Lincoln, the paradigm of the unrestrained Supreme Court was the decision in Dred Scott v. Sandford. Lincoln saw the "illegitimacy" of Dred Scott not in that the Supreme Court had overturned an act of Congress. It was, rather, that the Supreme Court, in the guise of making a legal decision, instead made a political decision. Even worse, it was a political decision that sought to redefine the polity in fundamental, constitutional terms. Lincoln's position echoed the most eloquent articulation of judicial review ever made by the Court: in Marbury vs. Madison, Chief Justice Marshall …

Constitutional Classifications And The "Gay Gene", Susan J. Becker

Law Faculty Articles and Essays

In this essay the author discusses the use of genetic information to classify individuals for purposes of the law, and more specifically, the impact of the so-called “gay gene” on legal classifications.

New Issues Arising Under Section 1983, Martin A. Schwartz

Scholarly Works

No abstract provided.

Bad Women Deserve Equal Protection: A Look At The Constitutionality Of The Florida Prostitution Statute, Patricia Padrino

St. Thomas Law Review

Laws against prostitution are antiquated and based primarily on moral considerations. While there is moral outcry against the proliferation of prostitution, prostitutes themselves are allowed to take the blame and suffer the punishment for its practice. Although prostitution is often referred to as a victimless crime, the criminalization of prostitution certainly victimizes prostitutes. Laws criminalizing prostitution in the United States do nothing to benefit society and everything to harm prostitutes themselves. One way to attack these laws in Florida is to show that they violate the equal protection rights guaranteed by the Constitution of the United States. By approaching the …

The Reliance On Federal Preemption Law By Managed Care Organizations And Group Plan Insurers To Create An Impenetrable Shield Against Patients' State Law Claims, Jack E. Karns

St. Thomas Law Review

No abstract provided.

Vindicating Civil Rights Under 42 U.S.C. 14141: Guidance From Procedures In Complex Litigation, Eugene Kim

UC Law Constitutional Quarterly

In order to provide remedy for institutional violations of civil rights, Congress enacted 42 U.S.C. § 14141, which authorizes the U.S. Attorney General to seek injunctive relief from unconstitutional patterns and practices by law enforcement officers. Investigations and lawsuits thus far have resulted in consent decrees and agreements between the U.S. Department of Justice and local governmental authorities. This Note proposes that, in order to achieve the most effective and meaningful reform, courts look for guidance to procedures in complex litigation. In particular, the Note discusses potential benefits of employing special masters in § 14141 cases, provision of notice and …

Coerced Confessions And The Fourth Amendment, Michael J. Zydney Mannheimer

UC Law Constitutional Quarterly

Coerced confessions in State criminal prosecutions have been thought to implicate the Due Process Clause of the Fourteenth Amendment, as well as the Self-Incrimination Clause of the Fifth Amendment. However, pursuant to Graham v. Connor, if an interest is addressed by one of the specific clauses of the Bill of Rights that has been incorporated against the States, only the standards associated with that provision- and not the more generalized notions of Due Process- apply to a claim that the interest has been infringed. Accordingly, one might think that the law of coerced confessions is governed entirely by the Self- …

Book Review, Mark C. Modak-Truran

Journal Articles

Eric Michael Mazur’s dissertation (supervised by Phillip E. Hammond) argues that minority religious communities have had to “subordinate their distinct theological beliefs to the transcending principles of the majority articulated by the constitutional order, or they are forced to do so by the physical powers of the government” (p. xxv). To support this argument, he takes an empirical approach and focuses on the Jehovah’s Witnesses, the Church of Jesus Christ of Latter-Day Saints (the Mormons), and Native American religious traditions.

The Tuttle Trilogy: Habeas Corpus And Human Rights, Anne S. Emanuel

Faculty Publications By Year

No abstract provided.

Constitutional Issues In Information Privacy, Fred H. Cate, Robert E. Litan

Articles by Maurer Faculty

The U.S. Constitution has been largely ignored in the recent flurry of privacy laws and regulations designed to protect personal information from incursion by the private sector, despite the fact that many of these enactments and efforts to enforce them significantly implicate the First Amendment. Questions about the role of the Constitution have assumed new importance in the aftermath of the September 11 terrorist attacks on the World Trade Center and the Pentagon. Efforts to identify and bring to justice the perpetrators and to protect against future terrorist attacks, while threatening to weaken constitutional protections against government intrusions into personal …

Principles For Protecting Privacy, Fred H. Cate

Articles by Maurer Faculty

This article addresses health privacy in the broader context of other areas of recent privacy activity, in an effort to discover what people should have learned in trying to identify those principles that should undergrid regulatory efforts to protect privacy. Increasingly, the dominant trend in recent and pending privacy legislation is to invest consumers with near absolute control over information in the marketplace. - irrespective of whether the information is, or could be, used to cause harm. The Health Insurance Portability and Accountability Act privacy rules wholly ignore the concept of harm and the constitutional requirement of targeting restriction on …

Deciding When Hate Is A Crime: The First Amendment, Police Detectives, And The Identification Of Hate Crime, Jeannine Bell

Articles by Maurer Faculty

This Article adds to the debate a story of how hate crime law is enforced, based on the experiences of the police detectives who are required to enforce hate crime law. Part I of this Article provides a brief description of hate crime laws and argues that the police play an important role in the determination of how hate crime law is enforced and ultimately, whether defendants’ First Amendment rights will be respected. Part II describes critics’ concerns about defendants’ First Amendment rights and the narrow constitutional line that enforcers of hate crime law must walk between enforcing hate crime …

The Dynamic Judicial Opinion, William D. Popkin

Articles by Maurer Faculty

Eskridge's article on Dynamic Statutory Interpretation advances an aggressively pragmatic theory of interpretation but has had more influence among academics than judges because of a failure to attend to the problems of writing a candid, pragmatic and dynamic judicial opinion. This article argues that, although not free from doubt, a candid judicial opinion is preferable, and discusses how to write such an opinion - suggesting that judges rely on the "intent of the statute," not legislative intent; and adopt a personal/exploratory style in presenting their views.