Constitutional Law Commons^™

Copyright Law, The Production Of Creative Works And Cultural Growth In Cyberspace , Alina Ng

ExpressO

The Internet has affected information flow in copyrighted content in a profound manner. Authors and artists are enabled through the Internet to assert greater control over the flow of information in their works as these new technologies offer new and different distribution channels for content. These new technologies also allow consumers to use content in ways, which had not been anticipated by the copyright industries. This paper presents that copyright law was developed for a specific purpose, which was to encourage learning and growth. As new technologies emerge and as content industries experience changes in information flow in copyrighted works, …

The Paradox Of Omnipotence: Courts, Constitutions, And Commitments, David S. Law

ExpressO

Sovereigns, like individuals, must sometimes make commitments that limit their own freedom of action in order to accomplish their goals. Social scientists have observed that constitutional arrangements can, by restricting a sovereign’s power, enable the sovereign to make such commitments. This essay advances several claims about the commitment problems that sovereigns face. First, constitutions do not necessarily solve such problems but can instead aggravate them, by entrenching inalienable governmental powers and immunities. Second, sovereigns and other actors face two distinct varieties of commitment problems – undercommitment and overcommitment – between which they must steer: an actor that can bind itself …

“Oh Lord, Please Don't Let Me Be Misunderstood!”: Rediscovering The Penn Central And Mathews V. Eldridge Frameworks, Gary Lawson, Katharine A. Ferguson, Guillermo Montero

ExpressO

The manuscript re-examines the origins and purposes of two of the most misunderstood constructs in modern legal doctrine: the so-called Penn-Central and Mathews v. Eldridge three-factor tests. We say “so-called,” because neither case actually invented a three-factor test. Penn Central set forth a framework involving two factors that later cases (unwisely, in our view) expanded to three, and the framework in Mathews was initially crafted by litigators in the Solicitor General’s office in order to resolve the specific issue facing the Court in that case. More significantly, neither Penn Central nor Mathews purported to set forth a methodology for deciding …

Does The Establishment Clause Require Religion To Be Confined To The Private Sphere?, Kevin Pybas

ExpressO

Through the first four decades or so of the U.S. Supreme Court’s church-state jurisprudence the Court generally sought to confine religion to the private sphere, on the grounds that the establishment clause requires such a result. While the Rehnquist Court has been more open to religion in the public sphere than previous Courts, the claim that the establishment clause requires religion to be restricted to the private sphere retains strong support among a minority of Supreme Court justices. Witness Justice Souter’s fierce objection, in Zelman v. Simmons-Harris (2002), to the Court’s approval of the use of publicly funded tuition vouchers …

Fig Leaf Federalism And Tenth Amendment Exceptionalism, Nelson Lund

George Mason University School of Law Working Papers Series

The Supreme Court’s jurisprudence of federalism is at best undergoing an unfinished transformation, and is at worst just troubled and unsatisfying. In a little-noticed dissent in Tennessee v. Lane, Justice Scalia proposed an approach that could be generalized well beyond the specific position that he took in that case. Thus generalized, this approach may be understood as an elaboration of a proposal made by Justice O’Connor in her dissenting opinion twenty years ago in Garcia v. San Antonio Metro. Transit Auth. If adopted by the Court, this synthesis of the O’Connor and Scalia suggestions could work a real transformation in …

Constitutionalism Through The Looking Glass Of Latin America, Miguel Schor

ExpressO

This Article explores the following question: why did constitutionalism in Latin America take a different path than in the United States? Constitutions were adopted throughout the New World in the wake of independence movements in the late eighteenth and early nineteenth centuries to effectuate republican government. Yet constitutionalism in Latin America led to dictatorship whereas constitutionalism in the United States led to republican government. The conventional answer to this issue is that the constitution was entrenched in the United States because law is independent from politics, whereas constitutions were not entrenched in Latin America because politics trumped constitutions. This Article …

Tyranny Of The Majority, Richard E. Day

Curriculum and Instruction Faculty and Staff Scholarship

The Kentucky Supreme Court decision upholding a temporary injunction preventing Dana Seum Stephenson from serving as a state senator was welcome relief. I was beginning to wonder whether the Senate majority was simply going to be allowed to disregard the law, outvote the minority and bend the rules to fit their fancy. One thing is certain: With a super majority hanging in the balance, a lame court would have produced even more disregarding, outvoting and bending in the Senate.

Design 22 Shark Deluxe Furniture Ltd. V. Rosenzweig, Aharon Barak, Ayala Procaccia, Miriam Naor

Translated Opinions

Facts: The petitioner, a company that owns a chain of furniture shops, was fined for employing Jews on the Sabbath, contrary to the Hours of Work and Rest Law, 5711-1951. Subsequently, the petitioner applied under the law for a permit to employ Jews on the Sabbath, but this application was rejected by the first respondent. The petitioner therefore filed a petition in the Supreme Court, arguing that the first respondent’s refusal to grant a permit was unreasonable in the extreme, in view of the economic loss that the petitioner was caused by not being able to employ Jews on the …

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Vanderbilt Law Review

The Supreme Court decided five Miranda1 cases in 2003-2004, making this one of the most active fifteen-month periods for the law of self-incrimination since the controversial case was decided in 1966. In this Article, we consider three of those five cases-Chavez v. Martinez, Missouri v. Seibert and United States v. Patane-along with the blockbuster decision four years ago in Dickerson v. United States. in an attempt to decipher what, if anything, this remarkable level of activity teaches us about the direction of the Court's self-incrimination jurisprudence. In the end, while these cases, like those before them, may not entirely clarify …

Presidential Elections - The Right To Vote And Access To The Ballot, John B. Anderson, Mitchell W. Berger, Grace E. Robson

Faculty Scholarship

The following article is a tripartite effort by Mitchell Berger and Grace E. Robson, members of the Florida Bar; John B. Anderson, a member of the Nova Southeastern University's Shepard Broad Law Center faculty; and a team of two of the students at that law school, Jason Blank and Tom Brogan, to examine the subject of ballot access for non-major party candidates in presidential elections in the wake of the recent decision of the Supreme Court of Florida in Reform Party of Florida v. Black.' Mr. Berger has furnished a critical analysis of that decision. Our team of students has …

A Constitutional Defense Of Legislative History, Paul E. Mcgreal

William & Mary Bill of Rights Journal

No abstract provided.

Safari Into The Snake Pit: The State-Created Danger Doctrine, Laura Oren

William & Mary Bill of Rights Journal

No abstract provided.

The Promise Of Equality: A Comparative Analysis Of The Constitutional Guarantees Of Equality In India And The United States, Nicole Lillibridge

William & Mary Bill of Rights Journal

No abstract provided.

"Of" As A Loaded Word: Congress Tests The Boundaries Of Its Commerce Power With An Amendment To The Federal Murder-For-Hire Statute, Michael P. Murphy

William & Mary Bill of Rights Journal

No abstract provided.

Modernizing The Law Of Open-Air Speech: The Hughes Court And The Birth Of Content-Neutral Balancing, William E. Lee

William & Mary Bill of Rights Journal

No abstract provided.

The One And The Many: Individual Rights, Corporate Rights And The Diversity Of Groups, Bruce P. Frohnen

West Virginia Law Review

No abstract provided.

'"You Have Been In Afghanistan": A Discourse On The Van Alstyne Method, Garrett Epps

All Faculty Scholarship

This essay pays tribute to William Van Alstyne, one of our foremost constitutional scholars, by applying the methods of textual interpretation he laid out in a classic essay, "Interpreting This Constitution: On the Unhelpful Contribution of Special Theories of Judicial Review." I make use of the graphical methods Van Alstyne has applied to the general study of the First Amendment to examine the Supreme Court's recent decisions in the context of the Free Exercise Clause, in particular the landmark case of "Employment Division v. Smith". The application of Van Alstyne's use of the burden of proof as an interpretive tool …

The Case For Federal Anti-Gerrymandering Legislation, Brian O'Neill

University of Michigan Journal of Law Reform

Partisan gerrymandering is a political tradition the United States can no longer afford. Due in part to the effects of partisan gerrymandering, very few congressional elections are meaningfully competitive. This Note argues that partisan gerrymandering damages both the quality of American democracy and the federal system of the United States. This Note concludes that the important federal interests at stake warrant action by Congress to halt partisan gerrymandering. The Note further concludes that any action by Congress should incorporate the principles of federalism by resisting the temptation to micromanage and Congress should instead require state commissions to draft the boundaries …

Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben

Faculty Publications

Scholars have approached arbitration, especially under the Federal Arbitration Act, from a variety of perspectives, including doctrinal, historical, empirical, and practical. One aspect that has not yet been fully considered, however, is the relationship between arbitration and constitutional democracy. Yet, as a dispute-resolution process that is often sanctioned by the government, that sometimes inextricably intertwines governmental and private conduct, and that derives its legitimacy from the government, it is appropriate--indeed, our responsibility--to ask whether arbitration furthers the goals of democratic governance. It is only sensible that state-supported dispute resolution in a democracy should strengthen, rather than diminish, democratic governance and …

The Rising Tide Of North Carolina Constitutional Protection In The New Millennium, J. Michael Mcguinness

Campbell Law Review

This article outlines a number of recent developments in North Carolina constitutional law, focusing primarily upon the most common areas where individuals need protection from abusive government power. Recent cases have demonstrated the growth and abuse of government power in North Carolina, from the smallest municipalities to the massive North Carolina state government bureaucracy. State constitutional checks and balances are necessary.

Supreme Court Watch, Reginald Oh

Law Faculty Articles and Essays

Discusses the case in the 2004-05 U.S. Supreme Court Term which decided a constitutional challenge to the State of California's practice of temporarily racially segregating its prisoners. On November 2, 2004, the Court heard oral arguments in Johnson v. California, a lawsuit brought by an African-American prison inmate in the California Department of Corrections. The petitioner contends that the state's longstanding policy of racially segregating prisoners for sixty days violates the Equal Protection Clause. On February 23, 2005, the Court issued its opinion in ]ohnson v. California, 125 S. Ct. 1141 (2005), and held that the policy of …

Opening Remarks: Advocating For Change, Kurt Mundorff

Cardozo Public Law, Policy & Ethics Journal

The article critiques the Child Abuse Prevention and Treatment Act (CAPTA) for focusing narrowly on parental responsibility while neglecting broader societal factors like poverty and racism. It highlights the challenges in predicting child abuse and the negative outcomes of foster care, arguing that the system's approach is flawed and in need of reform.

Under-Intervention Versus Over-Intervention, David Lansner

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Courts And Constitutional Usurpers Some Lessons From Fiji, Venkat Iyer

Dalhousie Law Journal

Much concern and disappointment has been expressed by jurists and human rights campaigners over the inaction ofnational judiciaries in reversing the effects of coups d'etat and other acts which result in the unconstitutional overthrow of democratically constituted governments Against this backdrop, the decisive steps taken b) the superior courts of Fiji to nullify the attempted destabilisation of that country's elected government in May 2000 was a trail-blazing development The author analyses the jurisprudence in this area and explains the implications of the Fijian judgments.

After El-Shifa: The Extraterritorial Availability Of The Takings Clause, Nathaniel Segal

Cardozo Journal of International and Comparative Law

The note examines the extraterritorial application of the Fifth Amendment's Takings Clause to foreign nationals, focusing on the case of El-Shifa Pharmaceutical Industries Co. v. U.S.. It argues that the Takings Clause should apply to alien-owned property abroad, emphasizing natural rights theory and the influence of John Locke on U.S. constitutional law. The analysis critiques the U.S. Court of Federal Claims' dismissal of Salah Idris's claim, which denied compensation for the destruction of his pharmaceutical plant in Sudan during a U.S. military strike. The author advocates for extending the clause's protections to foreign property owners, aligning U.S. law with …

All Deliberate Speed: Brown's Past And Brown's Future, Charles J. Ogletree Jr.

West Virginia Law Review

No abstract provided.

Courtside, Paul M. Smith, Katherine A. Fallow, Daniel Mach, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Roger Williams On Liberty Of Conscience, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Taking History Seriously: Municipal Liability Under 42 U.S.C. §1983 And The Debate Over Respondeat Superior, David J. Achtenberg

Faculty Works

The Monell doctrine - the most important obstacle to municipal § 1983 liability for constitutional wrongs - hangs by a thread. Four Justices of the United States Supreme Court have called for reexamination of Monell's conclusion that cities are exempt from respondeat superior liability for their employees' unconstitutional conduct. Plaintiffs' civil rights lawyers wait only for the right case and a single change in the Court's personnel before urging the Court to overturn Monell.

This Article is intended to provide those lawyers - and those who will oppose them - with a comprehensive, accurate examination of the relevant historical background, …

Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin

Scholarly Works

No abstract provided.