Constitutional Law Commons^™

How Ohio V. Talty Provided For Future Bans On Procreation And The Consequences That Action Brings: Ohio V. Talty: Hiding In The Shadow Of The Supreme Court Of Wisconsin, Evelyn Holmer

Journal of Law and Health

This Note discusses the constitutionality of antireproduction restrictions as they relate to the purposes and goals of probation, in the context of the Talty, Oakley, and Tramnell decisions. This Note addresses the ramifications and implications of these restrictions in relation to the deadbeat parent crisis, and it proposes more adequate means to accomplish the competing goals of child welfare and adherence to constitutional doctrine. Section II introduces and dissects the fundamental right to procreate as it is found under two concepts: the right itself and the right to privacy. Section III discusses the purposes of probation, generally, and articulates two …

The Failure Of Ohio's Drug Treatment Initiative, Tamara Karel

Cleveland State Law Review

In the summer of 2002, proponents of Issue 1 "The Ohio Drug Treatment Initiative," (hereafter referred to as the Initiative) succeeded in getting the proposal on the November ballot. The Initiative proposed an amendment to the Ohio Constitution that would have required courts to approve requests for treatment when made by eligible nonviolent drug offenders. The Amendment sought to (1) allocate a fixed amount of the state's General Revenue Fund to pay for the opening and operating of new treatment centers, (2) limit prison sentences for users and possessors to ninety days, and (3) provide for the sealing and expungement …

Ohio's Constitutions: An Historical Perspective, Barbara A. Terzian

Cleveland State Law Review

This article takes us from 1802 to the present, through two state constitutions and four constitutional conventions. The author shows how the crucible of history shaped and reshaped the Ohio Constitution - from early struggles, on the very threshold of statehood, between Jeffersonian Republicans and Federalists; to the pressures exerted in their respective eras by Abolitionists, Progressives, and Prohibitionists; to the quests for suffrage by blacks and women; to the economic impact of the Civil War and the growing industrialization of subsequent decades. Terzian performs this survey with careful attention to the political dynamics at each of Ohio's constitutional conventions …

An Ohio Dilemma: Race, Equal Protection, And The Unfulfilled Promise Of A State Bill Of Rights, Jonathan L. Entin

Cleveland State Law Review

Race was a central issue in Ohio from the very beginning. The original state constitution of 1802 and the successor constitution of 1851 explicitly limited suffrage to whites even as both documents forbade slavery. Moreover, the legislature imposed various legal disabilities and restrictions on African Americans. For much of the Nineteenth Century, however, the Ohio Supreme Court tried to narrow the scope of those restrictions by developing a distinctive jurisprudence that was in some respects more progressive, and in general less obnoxious, than that developed in other states and by the U.S. Supreme Court. Before the end of the century, …

Ohio Joins The New Judicial Federalism Movement: A Little To-Ing And A Little Fro-Ing , Marianna Brown Bettman

Cleveland State Law Review

Bettman analyzes Ohio Supreme Court decisions construing the Speech, Press, Search and Seizure, Free Exercise, and Establishment Clause analogues of the Ohio Constitution. Here in Ohio, she concludes, New Judicial Federalism remains in its infancy. The Ohio Supreme Court is still struggling with the fundamentals of state constitutional interpretation. It remains heavily dependant on federal methodology when construing analogous provisions of the state constitution. Bettman gives us the unique perspective of a law professor who previously served as an Ohio appellate court judge. This perspective sensitizes her to the current political make-up of the Ohio Supreme Court. Today's court, she …

Recalibrating Justiciability In Ohio Courts, Michael E. Solimine

Cleveland State Law Review

The term "separation of powers" does not appear in either the United States or Ohio Constitutions, but the concept has important implications for the adjudication of rights under both documents. In federal courts, litigants must possess certain characteristics, summarized under the rubric of "standing," to pursue such cases. To have standing, litigants traditionally must have suffered a concrete and ripe injury that was the result of the allegedly unlawful conduct. And even when those criteria are satisfied, cases that call for "political questions" to be resolved can be dismissed by federal judges. These limits to federal court authority are drawn …

The Law Of Words: Standing, Environment, And Other Contested Terms, David N. Cassuto

Elisabeth Haub School of Law Faculty Publications

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), exposes fundamental incoherencies within environmental standing doctrine, even while it ostensibly makes standing easier to prove for plaintiffs in environmental citizen suits. According to Laidlaw, an environmental plaintiff needs only to show personal injury to satisfy Article III's standing requirement; she need not show that the alleged statutory violation actually harms the environment. This Article argues that Laidlaw's distinction between injury to the plaintiff and harm to the environment is nonsensical. Both the majority and dissent in Laidlaw incorrectly assume that there exists an objective …

Proportionality Between Crimes, Offenses, And Punishments, James Headley

St. Thomas Law Review

Blackstone said of the Roman Empire, after it embraced unjust laws, "and then the Empire Fell. The United States Supreme Court embraces unjust laws and is inconsistent regarding substantive due process and proportionality in criminal cases, and substantive due process and proportionality in civil cases. The Due Process Clause and the Eighth Amendment's prohibition against cruel and unusual punishment require proportionality and fairness, meaning that the punishment must fit the crime, and that the penalty must be appropriate to the offense. Throughout a long history of jurisprudence, the Supreme Court has developed or embraced two varying theories of due process …

Agora: The United States Constitution And International Law Editors' Introduction, Lori Fisler Damrosh, Bernard H. Oxman

Articles

No abstract provided.

After Grutter Things Get Interesting! The American Debate Over Affirmative Action Is Finally Ready For Some Fresh Ideas From Abroad, Clark D. Cunningham

Faculty Publications By Year

No abstract provided.

Principles To Guide The Office Of Legal Counsel, Walter E. Dellinger Iii, Christopher H. Schroeder, Dawn Johnsen, Randolph Moss, Joseph Guerra, Beth Nolan, Todd Peterson, Cornelia Pillar

Faculty Scholarship

Former members of Office of Legal Counsel ("OLC") in the Department of Justice offer guidance for their successors. Among the document's recommendations are suggestions that the OLC "provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies;" and "publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure."

Affirmative Action And Colorblindness From The Original Position, Guy-Uriel Charles

Faculty Scholarship

In this Article, the author explores Grutter v. Bollinger from the vantage point of the colorblindness principle. He posits that the Grutter decision is noteworthy for two reasons. First, the Court rejected the argument that the Constitution is colorblind and that the classifications based on race are per se unconstitutional. Second, the Court explicitly recognized that racial categorizations are not all morally equivalent. The author uses classical liberalism as a heuristic for exploring whether the colorblindness argument is necessarily a moral imperative. He ultimately concludes that the Court adopted the correct approach in Grutter in rejecting the allure of the …

In Defense Of Deference, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.

English Constitutionalism Circa 2005, Or, Some Funny Things Happened After The Revolution, Ernest A. Young

Faculty Scholarship

reviewing Adam Tompkins, Public Law (2003)

Permitted But Not Intended: Boub V. Township Of Wayne, Municipal Tort Immunity In Illinois, And The Right To Local Travel, 38 J. Marshall L. Rev. 545 (2004), Bruce Epperson

UIC Law Review

No abstract provided.

Constitutional Hardball, 37 J. Marshall L. Rev. 523 (2004), Mark Tushnet

UIC Law Review

No abstract provided.

The Deconstitutionalization Of Education, Erwin Chemerinksy

Loyola University Chicago Law Journal

No abstract provided.

Religious Organizations And Mandatory Collective Bargaining Under Federal And State Labor Laws: Freedom From And Freedom For, Kathleen A. Brady

Villanova Law Review (1956 - )

No abstract provided.

Freethought Society V. Chester County And The Ten Commandments Debate: The Buck Stops Here For Establishment Clause Challenges To Religious Public Displays In The Third Circuit, Lauren A. Cates

Villanova Law Review (1956 - )

No abstract provided.

Employment Law: Congress Giveth And The Supreme Court Taketh Away: Title Vii's Prohibition Of Religious Discrimination In The Workplace, Huma T. Yunus

Oklahoma Law Review

No abstract provided.

Fish, Dams, And James Madison: Eighteenth-Century Species Protection And The Original Understanding Of The Takings Clause, John F. Hart

Maryland Law Review

No abstract provided.

Regulatory Frameworks In International Law, Hilary Charlesworth, Christine M. Chinkin

Book Chapters

Regulatory theory is concerned with how various forms of regulation, including law, govern social interaction. Much of the theoretical work on legal regulation has been developed in the context of domestic law. This chapter examines international law in the particular setting of regulation of outsider entities, such as failed and nascent states, that is where international regulation fills the vacuum caused by the collapse of domestic institutions and the rule of law. Through a brief examination of international regulation in Bosnia–Hercegovina and East Timor, this chapter asks what light a regulatory lens sheds on international law. Drawing on Hugh Collins's …

The Federal Role In Managing The Nation's Groundwater, John D. Leshy

Faculty Scholarship

No abstract provided.

The New Formalism: Requiem For Tiered Scrutiny?, Calvin R. Massey

Faculty Scholarship

No abstract provided.

Is There A Place For Race As A Legal Concept, Sharona Hoffman

Faculty Publications

What does "race" mean? The word "race" is omnipresent in American social, political, and legal discourse. The concept of "race" is central to contemporary debate about affirmative action, racial profiling, hate crimes, health inequities, and many other issues. Nevertheless, the best research in genetics, medicine, and the social sciences reveals that the concept of "race" is elusive and has no reliable definition.

This article argues that "race" is an unnecessary and potentially pernicious concept. As evidenced by the history of slavery, segregation, the Holocaust, and other human tragedies, the idea of "race" can perpetuate prejudices and misconceptions and serve as …

The Trouble With Taxes: Fairness, Tax Policy, And The Constitution, Leo P. Martinez

UC Law Constitutional Quarterly

Fairness stands for a complicated set of moral and practical instructions inculcated in us since childhood. Consequently, fairness presents knotty problems of application for legal and policy analysts in the formulation of tax policy. This article probes the contours of the concept of fairness in taxation. I begin and end with the observation that fairness or the perception of fairness in taxation is a deceptively unsophisticated proposition. Part I includes a brief description of the public perception of fairness in the context of taxation. Part II follows with an exploration of the concept of fairness as a fundamental tenet of …

Viewpoint Neutral Zoning Of Adult Entertainment Businesses, Shima Baradaran-Robison

UC Law Constitutional Quarterly

Zoning of strip clubs, adult video stores, and other adult entertainment businesses is a frequent source of controversy and litigation in many American cities. Community members often oppose strip clubs moving into their city and many cities try to keep these businesses as far from public life as possible. The Supreme Court's First Amendment law has not helped this struggle. In fact, the current "secondary effects" test used by the Supreme Court has actually made it more difficult for cities to zone adult businesses. Although a few commentators have expressed their disapproval of the secondary effects test, they have all …

Supreme Court Voting Behavior: 2002 Term, Richard G. Wilkins, Scott Worthington, Sara Becker, Lorianne Updike

UC Law Constitutional Quarterly

The results of the 2002 Study - as with the Study last Term - reveal continued polarization and voting instability on the United States Supreme Court. Only two categories of cases, Civil/State and Civil/Federal, were decided by predominantly unanimous opinions. Yet, while the Justices voted in fairly consistent "conservative" and "liberal" blocs, neither wing of the Court seems able to consistently garnish the "fifth vote" crucial to a definitive liberal or conservative trend. As a result, the Rehnquist Court may have lost its conservative momentum. The data suggest several possible explanations for this development. Justice O'Connor is again the Court's …

From Kierkegaard To Kennedy: Existentialist Philosophy In The Supreme Court's Decision In Planned Parenthood V. Casey And Its Effect On The Right To Privacy, Rebecca Rabkin

UC Law Constitutional Quarterly

In the landmark 1992 abortion right case, Planned Parenthood v. Casey, the United States Supreme Court created a new dimension to the right to privacy, not previously articulated in the Court's fourteenth amendment jurisprudence: the right to philosophical privacy. The ideas promulgated by the plurality in that case echo themes found in the work of Existentialist philosophers, such as Kierkegaard, Nietzsche, Sarte and Camus. These themes, central to the work of many Existentialist scholars, include a rejection of the idea of an objective Truth and the Platonic theory of forms, the refusal to view traditional religious beliefs as a moral …

Why The Case For Amending The U.S. Constitution To Prohibit Or Regulate Gay Marriage Is Not Proved, Vikram David Amar, Alan Brownstein

UC Law Constitutional Quarterly

No abstract provided.