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Articles 361 - 390 of 553
Full-Text Articles in Constitutional Law
Fruits, Nuts, Cigarettes, And The Right To Remain Silent, Christine Esperanza
Fruits, Nuts, Cigarettes, And The Right To Remain Silent, Christine Esperanza
UC Law Constitutional Quarterly
The First Amendment not only protects against limitations on one's speech but against governmentally compelled speech as well. Although the Supreme Court afforded increasing protection to commercial speech, a majority later held that an analysis of compelled advertising in this context did not raise First Amendment issues. In United States v. United Foods. No. 00276 (June 25, 2001), the United States Supreme Court revisited this issue, holding that "the mandated support is contrary to the First Amendment principles set forth in cases involving expression by groups which include persons who object to speech, but who, nevertheless, must remain members of …
Our Constitution As Federal Treaty: A New Theory Of United States Constitutional Construction Based On An Originalist Understanding For Addressing A New World, Francisco Forrest Martin
Our Constitution As Federal Treaty: A New Theory Of United States Constitutional Construction Based On An Originalist Understanding For Addressing A New World, Francisco Forrest Martin
UC Law Constitutional Quarterly
This Article argues that the Constitution is a federal treaty based on an originalist understanding. As a treaty, it must be construed in conformity with the U.S.' customary international legal obligations, according to the international law governing treaties. Furthermore, these customary international legal norms often will take primacy over the major general principles of constitutional construction (viz., the principles of federalism, separation of powers, and the "living Constitution") because these international legal norms often are more determinate and less judicially-constructed than general principles of constitutional construction yet these norms can still accommodate these general principles. Furthermore, unlike other theories of …
The Constitution Should Protect The Right To Same-Sex Marriage, Robert A. Sedler
The Constitution Should Protect The Right To Same-Sex Marriage, Robert A. Sedler
Law Faculty Research Publications
No abstract provided.
Foreword: The Ohio Constitution On The Occasion Of Its Bicentennial, Kevin F. O'Neill
Foreword: The Ohio Constitution On The Occasion Of Its Bicentennial, Kevin F. O'Neill
Law Faculty Articles and Essays
This symposium issue of the Cleveland State Law Review publishes the papers that were presented at a conference marking the bicentennial of the Ohio Constitution. That conference, held here at Cleveland-Marshall College of Law in April 2003, examined the history and assessed the vitality of our state constitution. The conference was conceived and its planning was supervised by our Dean, Steven H. Steinglass, who has devoted significant scholarly attention to the Ohio Constitution. In light of my own endeavors in state constitutional law, both as a lawyer and as a scholar, I gladly assisted Dean Steinglass in organizing the conference. …
Access To Public School Facilities For Religious Expression By Students, Student Groups And Community Organizations: Extending The Reach Of The Free Speech Clause, Ralph Mawdsley
Law Faculty Articles and Essays
The purpose of this article is to examine how courts, in their more recent decisions, have addressed the religious speech claims of individual students, student groups, and community organizations.
The International Legacy Of Brown V. Board Of Education, Brian E. Ray
The International Legacy Of Brown V. Board Of Education, Brian E. Ray
Law Faculty Articles and Essays
The authors describe the international legacy of Brown v. Board of Education in two discrete but related parts. First, they survey the international and domestic political contexts of the decision, which other commentators have convincingly demonstrated played a prominent role in the debates surrounding legalized segregation and in the arguments before the Supreme Court in the case itself. Important in this section is the intense and widespread international attention that was paid both to the problem of race relations in the U.S. and the decision in Brown. This background sets up the conclusions the authors draw from their survey …
State Constitutional Law, New Judicial Federalism, And The Rehnquist Court , Shirley S. Abrahamson
State Constitutional Law, New Judicial Federalism, And The Rehnquist Court , Shirley S. Abrahamson
Cleveland State Law Review
Today, I believe, we find ourselves at an interesting crossroads. Over the past few decades, under the banner of new judicial federalism, many state courts have asserted a role for state constitutions in the protection of individual liberties and the resolution of legal disputes. This outburst of state constitutional fervor, however, has been met with great criticism from different camps, all believing that the uniformity provided by our federal constitution as interpreted by the U.S. Supreme Court should guide state court decisions and especially state constitutional interpretation. At the same time, the very ability of state courts to decide state …
The New Judicial Federalism In Ohio: The First Decade , Robert F. Williams
The New Judicial Federalism In Ohio: The First Decade , Robert F. Williams
Cleveland State Law Review
There are a number of tentative conclusions that may be reached based on this selective analysis of the Ohio Supreme Court's first decade of experience with the New Judicial Federalism. First, the court is to be commended for taking the first steps toward recognizing the Ohio Constitution as a document of independent political and legal force. The Arnold decision, together with the others discussed in this article, serve to alert the lower bench, the bar, the media, and students and professors to the potential contained within state constitutions. Next, to the extent that there is inconsistency to be detected in …
All Party Oireachtas Committee On The Constitution Ninth Progress Report, Tom Dunne
All Party Oireachtas Committee On The Constitution Ninth Progress Report, Tom Dunne
Reports
Ireland, like many other countries with high rates of economic growth, is urbanising rapidly. There has been considerable emphasis on planning for this through the National Development Plan, the National Spatial Strategy, development guidelines and other measures. Through these the state intends that a proper planning process will lead growth rather than leaving it to market forces to drive development in what are regarded as undesirable directions. The latter it is feared will lead to unsuitable social, economic or physical outcomes. Unintended results have flowed from the implementation, or flawed implementation of many of these policies and have given rise …
The Proper Scope Of The Police Power, Randy E. Barnett
The Proper Scope Of The Police Power, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
In this Article, I will contend that the Constitution is not really silent at all on the proper scope of state powers; that the original meaning of what the Constitution says requires that state powers over their citizens have fairly easy to identify limits - though as with most constitutional provisions, applying these limits to particular cases requires judgment and is not a matter of strict deductive logic. This account will require me to briefly review the method of interpretation I advocate - original meaning originalism-and its limits. These limits require that interpretation of original meaning be implemented by means …
Constitutional Hardball, Mark V. Tushnet
Constitutional Hardball, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
For the past several years I have been noticing a phenomenon that seems to me new in my lifetime as a scholar of constitutional law. I call the phenomenon constitutional hardball. This Essay develops the idea that there is such a practice, that there is a sense in which it is new, and that its emergence (or re-emergence) is interesting because it signals that political actors understand that they are in a position to put in place a new set of deep institutional arrangements of a sort I call a constitutional order. A shorthand sketch of constitutional hardball is this: …
Judicial Review And Diversity, Deseriee A. Kennedy
Judicial Review And Diversity, Deseriee A. Kennedy
Scholarly Works
No abstract provided.
Is Yale Kamisar As Good As Joe Namath: A Look Back At Kamisar's Prediction Of Miranda V. Arizona, Tracey Maclin
Is Yale Kamisar As Good As Joe Namath: A Look Back At Kamisar's Prediction Of Miranda V. Arizona, Tracey Maclin
UF Law Faculty Publications
No abstract provided.
Dawn Raids Here At Home - The Danger Of Vanishing Privacy Expectations For Corporate Employees, Sarah Plotkin Paul
Dawn Raids Here At Home - The Danger Of Vanishing Privacy Expectations For Corporate Employees, Sarah Plotkin Paul
St. Thomas Law Review
This article posits that, due to the limited and diminishing privacy protections for corporate employees, Fourth Amendment jurisprudence is closer to permitting dawn raids in the workplace than popular opinion might suggest. First, the employee "standing" requirement to challenge an illegal search means employees must have a privacy interest in the particular workspace searched. In certain instances, then, individual employees have no way of protesting the use of illegally obtained corporate documents against them, including documents they have authored. Second, there may be few protections available to employees insofar as modem, widely-used workplace technologies are concerned, such as company computers …
The Political Origins Of The New Constitutionalism, Ran Hirschl
The Political Origins Of The New Constitutionalism, Ran Hirschl
Indiana Journal of Global Legal Studies
Globalization, Courts, and Judicial Power Symposium
The Art And Science Of Genetic Modification: Re-Engineering Patent Law And Constitutional Orthodoxies (The Harry T. Ice Chair Inaugural Lecture), Yvonne Cripps
Indiana Journal of Global Legal Studies
The Harry T. Ice Chair Inaugural Lecture
Book Review, Mark C. Modak-Truran
Book Review, Mark C. Modak-Truran
Journal Articles
Lucinda Peach addresses the issue of religious lawmaking by focusing on the constitutional implications and gender issues that she argues have been overlooked by the Supreme Court and by participants in the debate about religion in politics.
Introduction, Joel K. Goldstein
Introduction, Joel K. Goldstein
All Faculty Scholarship
Brown v. Board of Education [1] is the seminal case of the Twentieth Century. Mere mention of the case can start discussion on any number of topics, all important and all that relate to, or were importantly affected by, Brown. Some of those discussions relate to the immediate subject of Brown: Was state-imposed racially segregated public education a violation of the Equal Protection Clause? What is the nature of race relations in America? How close are we to achieving a racially just society? How fair is our system of public education? Others might focus on Brown for its impact on …
Of Platonic Guardians, Trust, And Equality: A Comment On Hasen's Minimalist Approach To The Law Of Elections, Luis Fuentes-Rohwer
Of Platonic Guardians, Trust, And Equality: A Comment On Hasen's Minimalist Approach To The Law Of Elections, Luis Fuentes-Rohwer
Articles by Maurer Faculty
No abstract provided.
O Say, Can You See: Free Expression By The Light Of Fiery Crosses, Jeannine Bell
O Say, Can You See: Free Expression By The Light Of Fiery Crosses, Jeannine Bell
Articles by Maurer Faculty
This Article presents a comprehensive, context-based theory which both places cross burning in its proper doctrinal framework and recognizes the history of cross burning as one of Ku Klux Klan-inspired terrorism directed at African Americans. The author prefaces critical commentary on the Supreme Court's decision in Virginia v. Black with analysis of the full landscape of cross burning cases including another issue to which others have paid little attention - the ways in which state courts have negotiated First Amendment challenges to cross burning statutes. Thoroughly examining cross burning from each of these perspectives, the Article argues that cross burning …
An Essay On The Spirit Of Liberty In The Fog Of War, Patrick L. Baude
An Essay On The Spirit Of Liberty In The Fog Of War, Patrick L. Baude
Articles by Maurer Faculty
This article previews the Supreme Court's decision in the Guantánamo prisoners' cases, arguing they should be dismissed for failure of jurisdiction. The worst possible outcome for civil liberties in wartime would be a decision to adjudicate the rights of the prisoners under an anemic view of individual rights and judicial jurisdiction. It is evident that the Court will not apply a robust conception of due process to these cases, in light of the inevitable pressures of national security in wartime. But faint-hearted judicial review, the likely result, will foster the political illusion that business as normal for our constitutional system …
After Grutter V. Bollinger-- Revisiting The Desegregation Era From The Perspective Of The Post-Desegregation Era, Kevin D. Brown
After Grutter V. Bollinger-- Revisiting The Desegregation Era From The Perspective Of The Post-Desegregation Era, Kevin D. Brown
Articles by Maurer Faculty
No abstract provided.
Revisiting The Voyeurism Value In The First Amendment: From The Sexually Sordid To The Details Of Death, Clay Calvert
Revisiting The Voyeurism Value In The First Amendment: From The Sexually Sordid To The Details Of Death, Clay Calvert
Seattle University Law Review
This Article takes a fresh look at the question of "whether the First Amendment freedom of the press will protect our desire to watch against claims of invasion of privacy and other intrusive newsgathering practices [,]" and the fundamental tension between maintaining privacy and accelerating voyeurism, while addressing the notions of geographic privacy and newsworthiness that are critical in this conflict. In particular, this article surveys five specific and cutting-edge areas in the law that demonstrate the conflict between privacy and voyeurism and the legal system's struggles to reconcile the two concepts. Each of these is an area that has …
Exorcizing Wechsler's Ghost: The Influence Of The Model Penal Code On Death Penalty Sentencing Jurisprudence, Russell Dean Covey
Exorcizing Wechsler's Ghost: The Influence Of The Model Penal Code On Death Penalty Sentencing Jurisprudence, Russell Dean Covey
UC Law Constitutional Quarterly
The constitutional law of capital sentencing currently is torn between its past and its future, its inheritance of a utilitarian, offender-based, sentencing theory and the powerful contemporary resurgence of retributivism as the dominant justification for criminal punishment. The basic procedural and jurisprudential structures all originated as the offspring of an explicitly nonretributive penal theory crafted in large part by Herbert Wechsler and codified in the Model Penal Code. To bring death penalty procedure more in line with contemporary understandings of the death penalty's theoretical and moral justification, the ghost of Herbert Wechsler must be exorcized from the constitutional law of …
Houses Built On Sant: Police Expert Testimony In California Gang Prosecutions; Did Gardeley Go Too Far, Patrick Mark Mahoney
Houses Built On Sant: Police Expert Testimony In California Gang Prosecutions; Did Gardeley Go Too Far, Patrick Mark Mahoney
UC Law Constitutional Quarterly
In 1998, faced with a gang-violence epidemic, California passed the Street Terrorism Enforcement and Prevention Act ("STEP"), becoming the first state to enact a law specifically targeting criminal street gangs. Through STEP, California courts began to gradually expand the scope of evidence admissible to prove gang membership and to loosen restrictions on expert testimony regarding gang behavior. This trend culminated in People v. Gardeley, in which the California Supreme Court upheld an extremely broad view of permissible uses of expert testimony. This note argues that not only did Gardeley goes too far, but also that in its Gardeley decision the …
Federal Regulation Of Embryonic Stem Cells: Can Government Do It - An Examination Of Potential Regulation Through The Eyes Of California's Recent Legislation, Francesca Crisera
Federal Regulation Of Embryonic Stem Cells: Can Government Do It - An Examination Of Potential Regulation Through The Eyes Of California's Recent Legislation, Francesca Crisera
UC Law Constitutional Quarterly
The debate surrounding stem cell research, particularly embryonic stem cell research, is one involving much acrimony, both at the research and practical stages. Such research holds the potential for abuse if not responsibly undertaken. This does not mean, however, that embryonic stem cell research should be prohibited subject to the whims of opponents in Congress. Rather, California has taken the proper step by endorsing embryonic stem cell research, while maintaining guidelines to oversee it.
United States V. Kincade: Constitutionality Of Mandatory Dna Testing, Joy Huang
United States V. Kincade: Constitutionality Of Mandatory Dna Testing, Joy Huang
UC Law Constitutional Quarterly
In 2000, Congress passed the DNA Analysis Backlog Elimination Act ("DNA Act"), mandating DNA samples from certain types of felons to be included in the FBI's Combined DNA Index System ("CODIS"). Since its inception, the DNA Act has faced many constitutional challenges, most recently in the 9th Circuit with the case United States v. Kincade, which involved two successive Ninth Circuit cases. The first case was decided on October 2, 2003, wherein a three-judge panel controversially deemed the DNA Act unconstitutional. The decision was subsequently vacated and reheard by the Ninth Circuit sitting en banc, in which the Circuit Court …
The Special Public Purpose Forum And Endorsement Relationships: New Extensions Of Government Speech, Mary Jean Dolan
The Special Public Purpose Forum And Endorsement Relationships: New Extensions Of Government Speech, Mary Jean Dolan
UC Law Constitutional Quarterly
The public and private sectors partner in a growing number of projects with expressive dimensions, as governments follow marketing trends and also leverage their resources to produce cultural programs. This creates ever more complex First Amendment issues because such joint enterprises exist at the intersection of two overlapping, but contradictory, paradigms: the limited public forum and government speech. Under the limited public forum test, government ostensibly may set reasonable content limitations when it opens up property and programs to private speakers, so long as its selections are viewpoint neutral. There is no clear line between viewpoint and content, however, and …
The California Supreme Court And State Constitultional Rights: The Early Years, Joseph R. Grodin
The California Supreme Court And State Constitultional Rights: The Early Years, Joseph R. Grodin
UC Law Constitutional Quarterly
The period from 1849 to 1865 was a tumultuous time for the people of California and for its Supreme Court. Consisting at the time of only three justices, the court was called upon to decide claims that went to the heart of the divisions that wrenched the state, over slavery, land ownership, religion, and race. Some of these were constitutional claims that might today be asserted under the federal Bill of Rights, but at the time (since the Bill of Rights was deemed inapplicable to the states) they were considered under the Declaration of Rights, Article I, of the state …
Torture, Marcy Strauss