Constitutional Law Commons^™

When Equality Leaves Everyone Worse Off: The Problem Of Leveling Down In Equality Law, Deborah L. Brake

ExpressO

Existing case law and legal scholarship assume that inequality may be remedied in one of two ways: improving the lot of the disfavored group to match that of the most favored group, or lowering the level of treatment for the favored group until their members fare as badly as the persons complaining of inequality. The term “leveling down” refers to the latter response. The 1971 case of Palmer v. Thompson provides the classic example of the typical judicial response to leveling down: the Supreme Court accepted the decision of Jackson, Mississippi, to close its swimming pools, rather than operate them …

Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry

ExpressO

Using the Supreme Court's decision last Term in Chavez v. Martinez as a launching pad, this article reveals and addresses fundamental tensions in constitutional interpretation, the law of interrogation, and civil rights litigation. First, this article highlights the importance of remedies to the definition of constitutional rights, which compels us to jettison the idea of prophylactic rules and accept Congress's role in constitutional interpretation. Armed with these insights, the article next considers the law of coercive interrogation. I explain why the privilege against self-incrimination is more than a trial right, and I redefine the central holding of Miranda to take …

Exporting The Constitution, Mark D. Rosen

All Faculty Scholarship

If a foreign government enacts a law that would be unconstitutional if passed in the United States, can a foreign judgment based on that law be enforced in an American court? For example, can an American court enforce an English judgment based on English defamation law, which is more pro-plaintiff than the First Amendment permits American law to be? The same issue was presented by recent litigation involving Yahoo!, where a federal district court considered whether it could enforce a French judgment based on a French law that regulated hate speech more broadly than the First American allows American polities …

Anatomy Of The Federal Litigation: Challenging The Legislature's Actions In The Wake Of Guinn V. Legislature, John C. Eastman

Nevada Law Journal

No abstract provided.

The Future Of Guinn V. Legislature, Troy L. Atkinson

Nevada Law Journal

No abstract provided.

Tax Legislation And Democratic Discourse: The Rhetoric Of Revenue And Politics, Leo P. Martinez

Nevada Law Journal

No abstract provided.

Rehearsal For Media Regulation: Congress Versus The Telegraph-News Monopoly, 1866-1900, Menahem Blondheim

Federal Communications Law Journal

In this Article, Menahem Blondheim presents a critical historical analysis of the dawn of communications regulation as it began with the evolution of domestic telegraphy and developed into a coherent link between 19th century technological, business, and social developments and twentieth century First Amendment thought. First, the Article examines the political and economic environment which led to the development of national telegraph and news networks, like Western Union and the Associated Press. The Author then proceeds to assess the role of the mid-to-late nineteenth century American legislature, and how the debate over telegraph and wire service regulation realigned the powers …

Legislating The Tower Of Babel: International Restrictions On Internet Content And The Marketplace Of Ideas, Michael F. Sutton

Federal Communications Law Journal

The First Amendment to the U.S. Constitution protects the expression of diverse viewpoints in virtually any medium. Nevertheless, the modern novelty of "borderless" communication via the Internet strains our ideal of keeping government out of the business of regulating speech. This Note reveals the conflict between the First Amendment's national protections and the Internet's lack of national boundaries, while also arguing for international intervention for the protection of free speech. This Author articulates the real danger of "watered-down speech" unless both the FCC and the international community provide regulations and harmonized international standards for online content that reflect First Amendment …

Grutter Or Otherwise: Racial Preferences And Higher Education, Larry Alexander, Maimon Schwarzschild

University of San Diego Public Law and Legal Theory Research Paper Series

Last year's Supreme Court decisions on affirmative action, Gratz and Grutter, are dubious as constitutional law, bringing to mind what John Hart Ely said about Roe v. Wade: "[I]t is not constitutional law, and gives almost no sense of an obligation to try to be." There was at best a cosmetic difference between the University of Michigan undergraduate school's crude "20-points-extra for minority applicants" (which the Court struck down) and the Law School's "holistic" and disingenuous preferences (which the Court upheld). The idea that the Law School has a "compelling state interest" in these racial and ethnic preferences is utterly …

The Drafting Of A Constitution For The European Union: Europe's Madisonian Moment Or A Moment Of Madness?, Grainne De Burca

Washington and Lee Law Review

No abstract provided.

Lords Of Democracy: The Judicialization Of "Pure Politics" In The United States And Germany, Russell A. Miller

Washington and Lee Law Review

No abstract provided.

Restraint And Responsibility: Judicial Review Of Campaign Reform, Spencer Overton

Washington and Lee Law Review

No abstract provided.

Free Exercise Of Religion In Germany And The United States, Edward J. Eberle

Law Faculty Scholarship

In this Article, Professor Edward Eberle provides a comparative overview of constitutional safeguards affecting religious freedom in Germany and the United States. Specifically the author analyzes the German and American approaches to the free exercise of religion within their respective constitutional systems. The result is an illuminating exposition that provides much insight for comparative and constitutional scholars.

In the years following the Second World War, religious freedoms in Germany developed along similar, individualist paths to those found in the United States Constitution. However, unlike the Constitution, the Basic Law's provisions touching on religious liberty are detailed and quite elaborate and …

The Three Independences, H. Jefferson Powell

University of Richmond Law Review

No abstract provided.

The Rehnquist Revolution, Erwin Chemerinsky

The University of New Hampshire Law Review

[Excerpt] "When historians look back at the Rehnquist Court, without a doubt they will say that its greatest changes in constitutional law were in the area of federalism. Over the past decade, and particularly over the last five years, the Supreme Court has dramatically limited the scope of Congress’ powers and has greatly expanded the protection of state Sovereign Immunity. Virtually every area of law, criminal and civil, is touched by these changes. Since I began teaching constitutional law in 1980, the most significant differences in constitutional law are a result of the Supreme Court’s revival of federalism as a …

Judicial Independence, William H. Rehnquist

University of Richmond Law Review

No abstract provided.

Legislative Restraint In The Confirmation Process, Kenneth W. Starr

University of Richmond Law Review

No abstract provided.

Judicial Independence And The Scope Of Article Iii--A View From The Federalist, Michael G. Collins

University of Richmond Law Review

No abstract provided.

Connecting The Dots: Grutter, School Desegregation, And Federalism, Wendy Parker

William & Mary Law Review

No abstract provided.

The Botched Hanging Of William Williams: How Too Much Rope And Minnesota’S Newspapers Brought An End To The Death Penalty In Minnesota, John Bessler

All Faculty Scholarship

This article describes Minnesota's last state-sanctioned execution: that of William Williams, who was hanged in 1906 in the basement of the Ramsey County Jail. Convicted of killing a teenage boy, Williams was tried on murder charges in 1905 and was put to death in February of the following year. Because the county sheriff miscalculated the length of the rope, the hanging was botched, with Williams hitting the floor when the trap door was opened. Three deputies, standing on the scaffold, thereafter seized the rope and forcibly pulled it up until Williams - fourteen and half minutes later - died by …

Abstinence-Only Adolescent Education: Ineffective, Unpopular And Unconstitutional, James J. Mcgrath

ExpressO

This article examines the recent changes in the funding of “abstinence only” educational programs that attempt to reduce the incidence of teen pregnancy and sexually transmitted diseases. Although funding for these programs was previously ruled to be facially constitutional, this is no longer the case as their lack of efficacy for their stated purpose has been exposed. Newer programs are in direct violation of unconstitutional conditions doctrine, and none of these programs address a significant segment of the student population, lesbian and gay students. My article addresses this oversight as dangerous public health policy as well as a potential constitutional …

Entrapment And The Problem Of Deterring Police Misconduct, Dru Stevenson

ExpressO

Many the states currently use a version of the entrapment defense known as the “objective test,” which focuses solely on the extent of police overreaching in the case, and seeks to deter police misconduct by acquitting the defendant. Acquitting defendants as a means of deterring undercover police misconduct, however, is a public policy fraught with problems, and these problems have not been adequately addressed in the literature to date. This article applies the insights of modern deterrence theory to wrongful activity by police in undercover operations. In doing so, three general problems emerge. First, the objective test relies on an …

Procedural Justice, Lawrence B. Solum

ExpressO

The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of …

Was The Right To Keep And Bear Arms Conditioned On Service In An Organized Militia?, Randy E. Barnett

ExpressO

Those who deny that the original meaning of the Second Amendment protected an individual right to keep and bear arms on a par with the rights of freedom of speech, press and assembly no longer claim that the amendment refers only to a “collective right” of states to maintain their militias. Instead, they now claim that the right, although belonging to individuals, was conditioned on service in an organized militia. With the demise of organized militias, they contend, the right lost any relevance to constitutional adjudication. In this essay, I evaluate the case made for this historical claim by Richard …

Motion For Leave To File Brief And Brief Of The National Taxpayers Union, The Nevada Manufacturers Association, The Howard Jarvis Taxpayers Foundation, Americans For Limited Government, Americans For Tax Reform, The Club For Growth, Nevada Corporate Headquarters, Inc., The Nevada Motor Transport Association, The Retail Association Of Nevada, And The Reno-Sparks Chamber Of Commerce, As Amici Curiae In Support Of Petitioners, Paul E. Salamanca

Law Faculty Advocacy

No abstract provided.

How Patriotic Can The Opposition Be? The Constitutional Role Of The Minority Party In Times Of Peace And During National Crises, Yigal Mersel

ExpressO

This paper seeks to address the constitutional status of the minority party – the opposition – within the parliament and its interaction with the majority. It does so from both a political science and law perspective, and focuses on the different types of oppositions in various regimes and their interactions with the majority. It quests to the limits and scope of oppositional behavior within parliaments. The paper focuses especially on the role of the opposition during times of national crises and analyses the constitutional problem of opposition loyalty to the majority in these times while suggesting a model that limits …

Enemies Foreign And Domestic: A Historical Look At The Use Of Military Commissions By The United States And The Case For Using Them Against American Citizens, James T. Barnett

ExpressO

An historical look at the use of Military Commissions by the United States of America. This article examines the constitutional powers to use Military Commissions as well as the limitations on such commissions.

It also examines the use of these commissions against American citizens and argues that they are proper in certain circumstances. The limitations set out by the Supreme Court are eroded to the point of being void.

The article goes on to examine the cases of John Walker Lindh and Yasser Hamdi to show that Military Commissions are the proper forum for such cases.

Back To Bakke: Defining The Strict Scrutiny Test For Affirmative Action Policies Aimed At Achieving Diversity In The Classroom, Leslie Y. Garfield

ExpressO

Last summer, the United State Supreme Court, in Grutter v. Bollinger and Gratz v. Bollinger, reviewed constitutional challenges to two affirmative action admission policies. These cases marked the first time in 25 years that the Court reviewed this particular issue. A close reading of these cases confirms that the Court will evaluate Equal Protection challenges to affirmative action programs aimed at improving diversity in the classroom differently than challenges to programs aimed at achieving racial equality in the workplace. This article interprets the Court’s analysis of affirmative action admission policies and offers a definition for a new strict scrutiny test …

Comments On The Fcc's Recent Mass Media Ownership Decision, William Fishman

American University Law Review

No abstract provided.

"Democratic Despotism" And Constitutional Constraint: An Empirical Analysis Of Ex Post Factor Claims In State Courts, Wayne A. Logan

William & Mary Bill of Rights Journal

This Article explores the history of the Ex Post Facto Clause, including the Supreme Court's seminal 1798 decision in Calder v. Bull, and analyzes the results of a survey of ex post facto claims decided in state courts from 1992-2002, the first study to catalog the types of claims generated among the states, and the institutional response of state courts to them. The author provides an overview of the claims resolved in state courts, examining the nature of the laws challenged, how the challenges fared, and the rationales used by courts in their dispositions. Discussion focuses on two abiding sources …