Constitutional Law Commons^™

Re-Balancing State And Federal Power: Toward A Political Principle Of Subsidiarity In The United States, Jared Bayer

American University Law Review

No abstract provided.

State Employers Are Not Sovereign: By Analogy, Transfer The Market Participant Exception To The Dormant Commerce Clause To States As Employers, Lara Gardner

Chicago-Kent Law Review

States should be treated as market participants and not be given sovereign immunity under the Eleventh Amendment when they are acting as private employers. Through an expansive reading of the Eleventh Amendment, the Supreme Court has restricted the right of state employees to sue under federal statutes intended to protect employees when the state is the employer and claims sovereign immunity. Under the market participant exception to the dormant Commerce Clause, if a state is acting as a market participant, rather than as a market regulator, it is no longer bound by the restraints of the Commerce Clause. The reasons …

Endorsing Religion: Drug Courts And The 12-Step Recovery Support Program, Emily M. Gallas

American University Law Review

No abstract provided.

The Networking Economic Effects Of Whiteness, Brant T. Lee

American University Law Review

Network economic analysis provides an important and intuitive explanation of racial inequality. In short, Whiteness is Microsoft's Windows operating system, or the QWERTY keyboard, or the standard (non-metric) measurement system, and difficult to dislodge for many of the same reasons. Network effects explain how the establishment of a dominant market standard 1) can be contingent on historical context, 2) does not necessarily derive from superior intrinsic merit, and 3) exhibits strong self-reinforcing characteristics that can maintain the dominance of the standard in perpetuity, even in the absence of any explicit or conscious determination to maintain it. All of these factors …

From The Xyz Affair To The War On Terror: The Justiciability Of Time Of War, John M. Hagan

Washington and Lee Law Review

No abstract provided.

Faith And Federalism: Do Charitable Choice Provisions Preempt State Nondiscrimination Employment Law?, Melissa Mcclellan

Washington and Lee Law Review

No abstract provided.

A Process Right Due? Examining Whether A Capital Defendant Has A Due Process Right To A Jury Selection Expert, Steven C. Serio

American University Law Review

No abstract provided.

Re-Mapping Equal Protection Jurisprudence: A Legal Geography Of Race And Affirmative Action, Reginald Oh

American University Law Review

No abstract provided.

Shakin' It To The Back Of The Bus: How Parks V. Laface Uses The Artistic Relevance Test To Adjudicate Artistic Content, Mitchell David Greggs

Washington and Lee Law Review

No abstract provided.

Red Flagging Civil Liberties And Due Process Rights Of Airline Passengers: Will A Redesigned Capps Ii System Meet The Constitutional Challenge?, Leigh A. Kite

Washington and Lee Law Review

No abstract provided.

International Norms In Constitutional Law, Michael Wells

Scholarly Works

Whether the Supreme Court should look to international law in deciding constitutional issue depends largely on what is meant by "looking to" international law. Some international norms are legally binding on American courts, either because we have agreed to follow them by adopting treaties or because they form part of the federal common law. I certainly agree that the Supreme Court, like the rest of us, ought to obey these aspects of international law. But the role of international norms in American courts has recently attracted attention for a different reason. In Lawrence v. Texas the Supreme Court, overruling Bowers …

The Use Of International Sources In Constitutional Opinion, Daniel M. Bodansky

Scholarly Works

My argument for the use of international materials to interpret the Constitutional will proceed in four parts. First, I will argue that international law has a venerable history in constitutional interpretation. Second, I will argue that American courts and foreign courts are engaged in a common legal enterprise and could learn from one another. Third, I will argue that the text of certain constitutional provisions invites the use of international materials. Finally, I will argue that taking international opinion into account has strong pragmatic justifications.

Fifteen Famous Supreme Court Cases From Georgia, Dan T. Coenen

Scholarly Works

John Inscoe, UGA professor of history and editor of the New Georgia Encyclopedia, invited Hosch Professor Dan T. Coenen to contribute a series of essays on the most significant U.S. Supreme Court cases that originated in the state of Georgia. This article, which proposes an unranked top 15 list, is built on this work.

Constitutional Crisis Over The Proposed Supreme Court For The United Kingdom, Peter L. Fitzgerald

ExpressO

No abstract provided.

The Right To Family Life And Civil Marriage Under International Law And Its Implementation In The State Of Israel, Yuval Merin

ExpressO

The article deals with the protection of the right to family life under international law and its implementation in the State of Israel on three levels: protection of the family cell as a single unit; protection of the individuals comprising the family unit; and protection of the family in special circumstances (e.g., immigration rights).

The article begins by analyzing the characteristics of the right to family life and examining various definitions of the “family” under international and Israeli law. It also examines what it is that the right to family life encompasses and how it should be classified within the …

Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman

ExpressO

No abstract provided.

Aiding Terrorists: Hearing Before The S. Comm. On The Judiciary, 108th Cong., May 5, 2004 (Statement Of David D. Cole, Geo. U. L. Center), David Cole

Testimony Before Congress

No abstract provided.

Not For Attribution: Government's Interest In Protecting The Integrity Of Its Own Expression, Helen L. Norton

Faculty Scholarship

Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers’ views are not mistakenly attributed to the government. Consider, for example, Virginia’s efforts to ban the Sons of Confederate Veterans’ display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of “hate” or “heritage,” Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier “VIRGINIA.” The Fourth Circuit was unpersuaded, holding that the …

Hong Kong Right Of Abode: Ng Siu Tung & (And) Others V. Director Of Immigration - Constitutional And Human Rights At The Mercy Of China, Teresa Martin

San Diego International Law Journal

This Comment argues that the Court's refusal to sidestep the Standing Committee's reinterpretation using either the Doctrine of Legitimate Expectation, or the judgments previously rendered clause in the Basic Law, signifies its capitulation to the Standing Committee, and its inability to protect constitutional rights and/or human rights in Hong Kong. This Comment will first give a brief background on the concept of one country, two systems and the drafting of the basic law. Second, it will introduce the Right of Abode cases, and explain the constitutional crisis of 1999. Third, it analyzes Ng Siu Tung & Others v. Director of …

What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser

Michigan Law Review

Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald …

Campaign Finance Reform And The Social Inequality Paradox, Yoav Dotan

University of Michigan Journal of Law Reform

The recent landmark decision by the Supreme Court in McConnell v. FEC opens the way for new and more decisive regulation of the vast amounts of private and corporate money poured into the political system. However, the theoretical grounds for campaign finance regulation - as reflected in the Court's opinion - remain highly perplexing. The purpose of the current article is to tie together the evolving constitutional principle of equality in election with modern process theory and to apply them to the field of campaign finance. The inherent tension between the stringent requirement for political equality on the one hand …

Capsized By The Constitution: Can Washington State Ferries Meet Federal Screening Requirements And Still Pass State Constitutional Muster?, David J. Perkins

Washington Law Review

In response to the threat of international terrorism, the United States Coast Guard has issued new regulations requiring every ferry operator to begin screening passengers and vehicles for dangerous items. These new regulations will force Washington State Ferries (WSF), the agency responsible for operating the State's ferry system, to either begin screening passengers and vehicles or face a possible shutdown. Compliance, however, poses problems for WSF because of privacy protections under the Washington State Constitution. Article I, section 7 of the state constitution contains an explicit protection of privacy. This section provides broader protections from warrantless searches by state actors …

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court’s rhetorical support for morals-based lawmaking and the Court’s jurisprudence. In taking this approach, the article responds to a central post-Lawrence question regarding the sufficiency of a government’s moral agenda as a justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.

The article develops several explanations for this avoidance of explicit morals …

Are Single-Sex Schools Inherently Unequal?, Michael Heise

Michigan Law Review

In chess, a "fork" occurs when a player, in a single move, attacks two or more of an opponent's pieces simultaneously, forcing a necessary choice between unappealing outcomes. Similar to the potentially devastating chess move, single-sex public schooling forks many constitutionalists and feminists. Constitutionalists are forced to reexamine the "separate but equal" doctrine's efficacy, this time through the prism of gender. Although the doctrine - forged in the crucible of race and overcome in the monumental triumph we know as Brown v. Board of Education - rested dormant for generations, persistent (and increasing) single-sex education options are forcing scholars to …

Religious Pluralism In Spain: Striking The Balance Between Religious Freedom And Constitutional Rights, Augustin Motilla

BYU Law Review

No abstract provided.

Corruption Of A Term: The Problematic Nature Of 18 U.S.C. §1512(C), The New Federal Obstruction Of Justice Provision, Daniel A. Shtob

Vanderbilt Law Review

The year 2002 may be remembered in the annals of the law as the year that corporate America became accountable for its actions. The boardroom, equated with the smoke-filled room of corrupt enterprise and political machination, came under fire as industry giants sank amidst charges of misconduct. In response to high profile allegations of corporate fraud, Congress commenced a fervent bipartisan effort to draft and implement a law to counter corporate obstruction of justice. On July 1, 2002, President George W. Bush signed the Sarbanes-Oxley Act. The bill included a section that prescribes strong penalties for individuals who corruptly impede …

Saving The Constitution: Lincoln, Secession, And The Price Of Union, Craig S. Lerner

Michigan Law Review

The year is 1860. After failing to obtain, as he had expected, the Democratic Party nomination for President at its Charleston convention, Stephen Douglas abandons his candidacy. In the ensuing election, Democrat John C. Breckinridge of Kentucky edges Republican Abraham Lincoln. The official platform of the Democratic Party includes endorsement of the Dred Scott decision, slavery's expansion in the federal territories, rigorous enforcement of the Fugitive Slave Act, and elimination of the tariff. Abolitionists in New England are inconsolable. For several years, Henry Lloyd Garrison had advocated Northern secession, denouncing the Constitution as a "union with slaveholders," and "a covenant …

The Banality Of Evil And The First Amendment, W. Bradley Wendel

Michigan Law Review

In the late spring and early summer of 1994, hundreds of thousands of people in Rwanda - an estimated ten percent of the population - were brutally murdered by their fellow citizens, generally for the "crime" of belonging to the socially and economically dominant, but numerically minority Tutsi ethnic group. The slaughter followed a systematic propaganda campaign coordinated by the Rwandan government, dominated by members of the Hutu ethnic group, who had long harbored grievances against Tutsis. The campaign demonized Tutsis as "devils," stirred up fear among the largely rural and poor Hutu population by propagating false information about a …

Institutional Reckless Disregard For Truth In Public Defamation Actions Against The Press, Randall P. Bezanson

ExpressO

Since its beginning, the actual malice test first announced in 1964 in New York Times v. Sullivan, has suffered from problems that are increasingly traceable to the changing face of journalism. Its demand that the mind of the reporter be proved "with convincing clarity" has adverse consequences for plaintiffs and news organizations alike. End runs around the subjective state of mind inquiry by plaintiffs have become more common. And the actual malice test's predictability, its capacity as a standard of liability to yield consistent and coherent results across a body of cases, remains a hollow promise. As Robert Sack famously …

Deportations, Removals And The 1996 Immigration Acts: A Modern Look At The Ex Post Facto Clause, Lupe S. Salinas

ExpressO

The article addresses the punitive aspects of the deportation procedures as impacted by the 1996 Immigration Acts. When faced with the precedents in the field, that deportation is a civil procedure, federal courts conclude that the Ex Post Facto Clause does not apply. However, the article draws upon common law and other historical bases for the conclusion that a modern view should hold that conviction-related removals are punitive and subject to ex post facto analysis.