Constitutional Law Commons^™

The Creativity Of The Common-Law Judge: The Jurisprudence Of William Mitchell, Charles J. Reid Jr.

William Mitchell Law Review

Mitchell's presence graced the Minnesota Supreme Court for nearly nineteen years, from 1881 to 1900. His output was prodigious. He produced nearly 1600 judicial opinions. It has been estimated “that excluding Sundays, and allowing a month in each year for vacation, Judge Mitchell wrote one opinion in every three days for nineteen years.” Indeed, “[i]n point of numbers, his opinions exceed those of any other justice of the Supreme Court of his state, or the nation.” It is one aspect, perhaps the central aspect, the unifying theme of this prolific body of work, that is the focus of this essay: …

The Quicksands Of Originalism: Interpreting Minnesota’S Constitutional Past, Douglas A. Hedin

William Mitchell Law Review

There are several varieties of the “originalist” school of constitutional thought, but all subscribe in one degree or another to the belief that a constitutional clause should be interpreted according to its original meaning or the original intent of its authors. That original understanding or intent can be discerned from the text of the clause, the history of its drafting and ratification and, sometimes, early practices and court decisions interpreting that clause. It rightly has been called a “grand theory” because it is simple and clear, explains so much, and it has the almost irresistible attraction of being anchored firmly …

Illegitimate Children’S Rights In Probate Proceedings—In Re Estate Of James A. Palmer, Deceased, Robert A. Mcleod

William Mitchell Law Review

The transfer of a person's assets after death has been an important element in the law beginning with the Magna Carta, and is firmly rooted in American jurisprudence. Defining children and heirs for probate purposes remains a difficult issue. In particular, the determination of children and heirs in an age when the birth of “illegitimate” children is common makes the proper and just determination of heirship a recurring and timely topic. The Minnesota Probate Code defines the term “child” and provides: “a person is the child of the person's parents regardless of the marital status of the parents and the …

2002 U.S. Supreme Court Term Includes Zoning Referendum Case, Patricia E. Salkin

Scholarly Works

No abstract provided.

Kootenai Tribe Of Idaho V. Veneman: The Roadless Rule: Dead End Or Never Ending Road, Kristine Meindl

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Nema V. Sorrell: It's Lights Out For The National Electrical Manufacturers Association - A Look At Nema's Failed Commerce Clause Challenge, Joshua B. Ryan

Villanova Environmental Law Journal (1991 - )

No abstract provided.

The Valuation Of An Experience: A Study In Land Use Regulation, 36 J. Marshall L. Rev. 779 (2003), Bob Madden

UIC Law Review

No abstract provided.

The Debate Over War Powers, Mark R. Shulman

Elisabeth Haub School of Law Faculty Publications

No abstract provided.

Admissions Of A Director, Sarah C. Zearfoss

UC Law Constitutional Quarterly

The admissions process at one of the nation's most prestigious law schools is as much art as it is science. Sarah Zearfoss, Director of Admissions and Assistant Dean at the University of Michigan Law School, offers a firsthand account of the school's admissions program. In the process she answers the commonly asked question, just what do admissions committees take into account when they review an application? She describes the Law School's admissions program from a functional point of view, and explains why the concept of diversity embodies far more than race. She also refutes Justice Rehnquist's analysis in dissent in …

On Teaching Constitutional Law When My Race Is In Their Face, Angela Mae Kupenda

Journal Articles

Constitutional Law is one of my favorite subjects to teach. You see, I am a 45-year-old southern-born, black woman who not only studies constitutional law, I lived it. I attended separate and unequal schools, survived freedom of choice programs, suffered Jim Crow laws, and was a beneficiary of consent decrees and affirmative action programs. I love discussing and debating issues relating to race, gender, etc. I love constitutional law, but many of my students do not love the subject or, perhaps, care for hearing about my related experiences.

Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz

Scholarly Works

No abstract provided.

New Forms Of Judicial Review And The Persistence Of Rights - And Democracy-Based Worries, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Recent developments in judicial review have raised the possibility that the debate over judicial supremacy versus legislative supremacy might be transformed into one about differing institutions to implement judicial review. Rather than posing judicial review against legislative supremacy, the terms of the debate might be over having institutions designed to exercise forms of judicial review that accommodate both legislative supremacy and judicial implementation of constitutional limits. After examining some of these institutional developments in Canada, South Africa, and Great Britain, this Article asks whether these accommodations, which attempt to pursue a middle course, have characteristic instabilities that will in the …

Eldred And Lochner: Copyright Term Extension And Intellectual Property As Constitutional Property, Paul M. Schwartz, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position--we refer to them as the IP Restrictors--represent a remarkable array of constitutional and intellectual property scholars. …

The Environmental Commerce Clause, Christine A. Klein

UF Law Faculty Publications

This Article studies every commerce clause decision of the modem Supreme Court that involves the scope of governmental authority to regulate the use of natural resources. These decisions comprise what I will call the environmental commerce clause—the Court's interpretation of the limits mandated by the commerce clause upon federal and state legislation protecting natural resources. Overall, the Court has been limiting the scope of the affirmative commerce clause while simultaneously expanding the reach of the dormant commerce clause. As a result, both federal and state efforts to protect the natural environment have been rendered constitutionally suspect.

This study supports two …

A Social Contract Between Students And The State: A Constitutional Analysis Of Florida Statutes Related To Mandatory Expulsion For Weapon Possession, Corporal Punishment And The Use Of Metal Detectors On Campus, Loula D. Giannet

St. Thomas Law Review

This article analyzes the constitutionality of various Florida statutes as they may be applied to curtail acts of violence on school grounds. Analyzed from a social contract theoretical perspective, the article first examines whether Florida's zero-tolerance policy regarding weapon possession in schools, which requires mandatory expulsion, comports with the Due Process Clause. Second, the article evaluates the relevant statutes pertaining to corporal punishment and the due process implications of this sanction. Third, the article explores the constitutional issues associated with the use of metal detectors on campus. Finally, the article briefly discusses whether the Double Jeopardy Clause precludes a subsequent …

The Law Of Obscenity - Or Absurdity, H. Franklin Robbins Jr., Steven G. Mason

St. Thomas Law Review

At any rate, if the First Amendment only protects expression that the majority believes will promote the right values, it does not protect very much. Sexually explicit materials arouse intense, deep-seated feelings, and from a moral point of view, the desire to stop their dissemination is understandable. But the censoring of morally bad ideas is glaringly incompatible with the most basic principles of First Amendment law. Nonetheless, for nearly two hundred years the censorship of morally offensive materials has been a part of our legal history, notwithstanding the absolute terms of the First Amendment.

The Great Cookie Caper: Internet Privacy And Target Marketing At Home And Abroad, Jason A. Kotzker

St. Thomas Law Review

Did George Orwell have it all wrong? Is Big Brother really a multinational company with a Web site employing cookies; enabling it to track its visitors' every move? The Internet's popularity as a virtual marketplace and the resulting boom of e-commerce has developed exponentially due to the speed and convenience of on-line shopping and access to information. However, this technological advancement also allows for the collection, storage, and transmittal of personal information. With unlimited access to a vast array of personal information, advertising agencies conduct marketing campaigns targeted at individual e-consumers. Unfortunately, most consumers are unaware that they divulge personal …

Semblances Of Sovereignty: The Constitution, The State, And American Citizenship, T. Alexander Aleinikoff, Harvard University Press, 2002. Pp. 223, Harvey Gee

St. Thomas Law Review

A major contribution to the contemporary thinking about immigration, citizenship, and assimilation is offered by Georgetown Law Center Law Professor T. Alexander Aleinikoff in his recent volume, Semblances of Sovereignty: The Constitution, the State, and American Citizenship. The book helps to advance the immigration debate and define what it means to be an American. Aleinikoff paints with broad theoretical strokes with academics in mind. Relying on theory, he asks readers to consider how the court has treated the issue of "citizenship" and how it has defined its boundaries and limitations. He also addresses the reasons why traditional notions of immigrant …

The Promise And Preconditon Of Education Autonomy, Neal Kumar Katyal

UC Law Constitutional Quarterly

In this article, Professor Katyal, who filed the "educational autonomy" amicus brief in Grutter on behalf of Deans at the nation's leading private law schools, defends the view that universities have a zone of freedom to pursue Bakke-style affirmative action but outlines some strong limits on such autonomy. The Court's principle of educational autonomy is anchored in judicial precedent and common sense, but, like all forms of judicial deference, such autonomy must be carefully circumscribed. In particular, Professor Katyal argues that if a law school seeks to use educational autonomy as part of its defense of its admissions process, its …

The Middle Class Fourth Amendment, Craig M. Bradley

Articles by Maurer Faculty

No abstract provided.

Stacking The Deck Against Suspected Terrorists: The Dwindling Procedural Limits On The Government's Power To Indefinitely Detain United States Citizens As Enemy Combatants, Nickolas A. Kacprowski

Seattle University Law Review

This Note examines Padilla v. Bush as an example of the contemporary application of enemy combatant law. This Note argues that in present and future applications of enemy combatant law, courts should treat Padilla as the preferred model of application because Padilla preserves more Constitutional protections, specifically the right to counsel in bringing a habeas petition, than do Hamdi or Quirin. The Padilla decision is preferable to Hamdi because Padilla restricts the movement of enemy combatant law away from the ex- press criminal protections of the Constitution. In contrast, Hamdi greatly accelerates such movement.

Essay: Pledging Allegiance, Michael K. Steenson

Faculty Scholarship

This Essay focuses on the Pledge of Allegiance requirement and its place in public schools. It begins with an analysis of a typical, but certainly not isolated, approach of the Minnesota Legislature, following September 11, in passing a bill that required recitation of the Pledge. This Essay then moves to a discussion of the events surrounding the 1943 United States Supreme Court decision in West Virginia State Board of Education v. Barnette and how Barnette has subsequently been interpreted. Finally, this Essay discusses the probable impact of the Minnesota Constitution on the Pledge Bill, should it pass in this legislative …

Security And Freedom: Are The Government's Efforts To Deal With Terrorism Volatile Of Our Freedoms?, Michael P. Scharf

Faculty Publications

Introducation to the Proceedings of the Canada-United States Law Institute Conference on Canada-U.S. Security and the Economy in the North American Context, Cleveland, Ohio, 2003.

Section 1983 Litigation: Supreme Court Review, Erwin Chemerinsky, Martin A. Schwartz

Touro Law Review

No abstract provided.

The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen

Faculty Scholarship

As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history-past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of "special interest" aliens would be closed to the public. Applying Richmond Newspapers's two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the …

A Constitutional Challenge To Michigan’S Ban On Second Parent Adoption By The Unmarried Partner Of The Child’S Current Parent, Robert Allen Sedler

Law Faculty Research Publications

No abstract provided.

High School Drug Testing And The Original Understanding Of The Fourth Amendment, David E. Steinberg

UC Law Constitutional Quarterly

In Board of Education v. Earls, the United States Supreme Court recently held that a high school drug testing programs did not violate the Fourth Amendment to the United States Constitution. The Earls Court reached the correct result, but for the wrong reasons. A review of historical evidence indicates that the framers adopted the Fourth Amendment to deal with a single, specific issue. The framers sought to proscribe physical searches of residences pursuant to general warrants, or without any warrant at all.

Discussion of unreasonable searches in the late eighteenth century primarily focused on three controversies - the John Wilkes …

Constitutional Sunsetting: Justice O'Connor's Closing Comments In Grutter, Vikram David Amar, Evan Caminker

UC Law Constitutional Quarterly

In this essay, Professors Amar and Caminker discuss the observation Justice O'Connor's majority opinion in Grutter makes that "[wie expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." While they acknowledge the highly ambiguous nature of this sentence, Amar and Caminker hypothesize this passage as a warning from the Court that it will not necessarily rule a quarter century from now the way it did last summer, even if the underlying demographic facts remain the same. Amar and Caminker discuss how this possible reading fits in with …

The Legal Cost Of The Split Double Header Of Gratz And Grutter, Wendy Parker

UC Law Constitutional Quarterly

In this article, Professor Parker examines Justice Scalia's prediction that the "split double header" of Gratz and Grutter - which seemingly contradict one another - will result in a dramatically increased amount of litigation and become a never-ending aggravation for both students and educators because of uncertainty in distinguishing between constitutional racial activity and unconstitutional kind racial activity. Justice Scalia further predicts that post-Gratz/Grutter litigation will draw all racial groups - the majority group, underrepresented minority groups, and overrepresented minority groups - as plaintiffs, and he proposes an all-or-nothing approach: Outlaw all racial preferences in the public education setting or …

Disarming The Confirmation Process, Michael M. Gallagher

Cleveland State Law Review

To improve the current process and eliminate the bitter nature of confirmation hearings, Senators should not consider a nominee's ideology in determining whether to vote for that nominee. Ideological scrutiny lacks historical and constitutional support; it has led to repeated, prolonged battles that threaten to draw the confirmation process into a dangerous stalemate. Removing ideology from judicial nominations would return the confirmation process to its original understanding, one in which the President enjoys the dominant role. Those who argue that allowing the President, not the Senate, to consider a nominee's ideology would harm the federal judiciary and ignore the nature …