Constitutional Law Commons^™

Minnesota: Leading The Way On Canadian Prescription Medicine Importation, Kevin Goodno, Karen Janisch

William Mitchell Law Review

In the United States, about $160 billion is spent on prescription medicines each year, with Minnesotans spending about $3 billion. The costs of prescription medicines receive so much attention in large part because, although prescription medicine costs constitute only 10.5% of total health care spending, they account for 23% of the total out-of-pocket costs that people incur when purchasing health care. Minnesota has been a leader in controlling prescription medicine costs. It has aggressively used purchasing pools when possible, and encouraged the use of lower cost, generic prescription medicines when appropriate. Even with these efforts to control costs, prescription medicines …

Aetna V. Davila/Cigna V. Calad: A Missed Opportunity, Leonard A. Nelson

William Mitchell Law Review

On June 21, 2004, the United States Supreme Court decided the health law “case of the year” in the two consolidated cases of Aetna Health, Inc. v. Davila and CIGNA HealthCare of Texas, Inc. v. Calad. The Court held that section 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA) “completely preempt[s]” and thus invalidates the tort liability provisions of the Texas Health Care Liability Act (THCLA). The case could potentially affect the rights of millions of Americans in a matter of vital concern—whether they will receive the health insurance coverage promised them if they become unable to …

Raich, Health Care, And The Commerce Clause, Alex Kreit, Aaron Marcus

William Mitchell Law Review

This article considers to what extent health care may be viewed as a traditional area of state concern in the context of the Supreme Court’s revival of federalism principles, in particular limits on Congress’ Commerce Clause power, and what effect Raich v. Ashcroft, heard by the Court in the fall 2004 term, might have on these issues. Addressing these questions will necessarily involve exploration of medical marijuana policy as well as the role of the “traditional state interest” principle within the Commerce Clause. However, the central focus of this article is not what impact Raich may have on the Commerce …

“The Indispensable Basis Of Democracy”: American Catholicism, The Church-State Debate, And The Soul Of American Liberalism, 1920–1929, Zachary R. Calo

Scholarly Works

Several recent works of scholarship explore how Establishment Clause jurisprudence has been shaped by broader political debates over the role of religion in public life. This literature focuses on the politics of anti-Catholicism, particularly during the early years of Establishment Clause jurisprudence in the1940s and 1950s. While not questioning the centrality of this period to the historical narrative, this Note argues that the political contest over church and state took shape in an earlier debate over the compatibility of Catholicism and the Constitution during the 1920s. The Church’s response to the anti-Catholicism of this period was of particular importance. Catholic …

Violating The Inviolable: Firearm Industry Retroactive Exemptions And The Need For A New Test For Overreaching Federal Prohibitions, 38 J. Marshall L. Rev. 955 (2005), James L. Daniels

UIC Law Review

No abstract provided.

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

Elisabeth Haub School of Law Faculty Publications

This Article will identify the new strict scrutiny test, and will consider the reason for creating a separate definition of strict scrutiny for evaluating affirmative action policies that achieve diversity in the classroom. Part II of the Article will review constitutional challenges to affirmative action policies prior to Grutter and Gratz, and will discuss the split in the circuits that resulted from the Court's failure to endorse Justice Powell's definition of a compelling governmental interest in Bakke. Part III will provide an analysis of the Grutter and Gratz decisions, with a particular focus on each Court's discussion of the strict …

Book Review, Mark C. Modak-Truran

Journal Articles

RELIGION ON TRIAL makes the historical debates about the religion clauses accessible to a broad audience. In addition, it properly links issues of free exercise of religion to issues about fundamental rights in a manner that is usually missed by legal scholars and political scientists. Consequently, this book would be a good addition to undergraduate, graduate, and law school courses on the religion clauses or on law and religion.

Discussion: A Focus On Federalism, Jeffrey B. Morris

Scholarly Works

No abstract provided.

The Politics Of The Geneva Conventions: Avoiding Formalist Traps, Rosa Brooks

Georgetown Law Faculty Publications and Other Works

The Geneva Conventions were drafted in 1949, in another world. The world of the Geneva Conventions' "framers" is still familiar to all of us, though increasingly it is familiar from movies and books rather from the evening news or, still less, our own lived experience. The world in which the Conventions were drafted was a world of states: powerful states, weak states, predatory states, law-abiding states, but states all the same. Soldiers wore uniforms designed by their states, carried weapons issued by their states, obeyed orders given by their commanders, and fought against the armies of other states.

Well--most of …

Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen

Michigan Journal of International Law

This Article’s purpose is to examine the revision debates through the lens of recent scholarship on constitutional decisionmaking to see what lessons might be drawn about constitutionalism in Japan and elsewhere. In Part I, the author discusses Article 9's text and interpretation and focus on three controversies: first, Japan's ability to use force to defend itself and the related issue of the constitutionality of the Japan Self Defense Force (SDF); second, Japan's ability to engage in collective self-defense, which impacts the state's security relationship with the United States under the U.S.-Japan Mutual Security Agreement; and finally, Japan's ability to participate …

A Constitutionalist Perspective, Elizabeth Dale

UF Law Faculty Publications

Intended as a sustained critique of modern communitarian thought written from a constitutionalist perspective, Beau Breslin'sCommunitarian Constitution is a handy primer on modern communitarian thought and a provoking consideration of the impact of communitarian thinking on contemporary politics.

The foundation for Breslin's fundamental argument--that constitutionalism provides a viable alternative to communitarianism, while liberalism cannot--is not laid as well as one might wish. There are other points where his logic ought to be more rigorously developed, most notably in his assessment of the role and power of the rule of law in a constitutionalist system. He rests his reliance on …

The Majoritarian Difficulty: Affirmative Action, Sodomy, And Supreme Court Politics, Darren Lenard Hutchinson

UF Law Faculty Publications

Contemporary debates over recent Court decisions provide a rich context to weigh claims of judicial countermajoritarianism against the work of constitutional theorists, critical legal scholars, and political scientists who view the Court as a majoritarian body. In particular, the Court's decisions in Lawrence v. Texas, Gratz v. Bollinger, and Grutter v. Bollinger have reignited arguments concerning the propriety of judicial review. Prominent judicial commentators have described the decisions as important, and unexpected, civil rights victories from a markedly conservative Court. Liberal and conservative scholars and activists seem to agree with this description: mainline civil rights organizations and liberal scholars view …

Restoring The Fourth Amendment: The Original Understanding Revisited, David E. Steinberg

UC Law Constitutional Quarterly

Supreme Court decisions regarding the Fourth Amendment are arbitrary, unpredictable and often border on incoherent. This quagmire is inspiring Fourth Amendment scholars to develop catch phrases for the chaos. And it is all because of Court attempts to apply the Fourth Amendment in situations where it was never intended to apply - particularly in police search and seizures. The Fourth Amendment was never intended to serve this role.

Human Trafficking In The Heartland: Greed, Visa Fraud, And The Saga Of 53 Indian Nationals "Enslaved" By A Tulsa Company, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

Should Ideology Matter In Selecting Federal Judges? Ground Rules For The Debate, Dawn E. Johnsen

Articles by Maurer Faculty

A recurring constitutional controversy of great practical and political importance concerns the criteria Presidents and Senators should use in selecting federal judges. Particularly contentious is the relevance of what sometimes is described as a prospective judge's ideology, or alternatively, judicial philosophy and views on substantive questions of law. This essay seeks to promote principled and productive discussion by proposing five ground rules to govern debate by all participants regarding appropriate judicial selection criteria. Because the continued controversy does not simply reflect principled disagreement on the merits, progress may be encouraged by focusing on deficiencies in current public discourse, including discouraging …

European Governance: Executive And Administrative Powers Under The New Constitutional Settlement, Paul Craig

Articles by Maurer Faculty

No abstract provided.

Interpreting Conflicting Provisions Of The Nevada State Constitution, William D. Popkin

Articles by Maurer Faculty

No abstract provided.

Security And Rights, Trevor C. W. Farrow

Articles & Book Chapters

No abstract provided.

Note: Minnesota’S Proposed Same-Sex Marriage Amendment: A Flamingly Unconstitutional Violation Of Full Faith And Credit, Due Process, And Equal Protection, Jolynn M. Schlichting

William Mitchell Law Review

This note examines the constitutionality of Minnesota’s proposed marriage amendment. The note begins with a description of the recent national events leading up to the amendment’s proposal, followed by a discussion of the history of marriage in Minnesota, including passage of the Defense of Marriage Act in May 1997. Next, the note examines the language of Minnesota’s proposed marriage amendment and briefly addresses the process of amending state constitutional provisions. It then analyzes the proposed amendment’s constitutionality under the Full Faith and Credit Clause, the Due Process Clause, and the Equal Protection Clause of the United States Constitution. Finally, the …

Note: The Earthquake That Will Move Sentencing Discretion Back To The Judiciary? Blakely V. Washington And Sentencing Guidelines In Minnesota, Matthew R. Kuhn

William Mitchell Law Review

This Note begins by briefly laying out the evolution of criminal sentencing over the past century. It then surveys judicial interpretation of defendants’ Constitutional rights as they relate to sentencing procedure, focusing on the Court’s recent invalidation of Washington state’s sentencing guidelines in Blakely v. Washington. The note will then examine possible reforms to Minnesota’s sentencing guidelines pursuant to the Court’s decision. It will conclude by advocating that, despite the recent spotlight on Kansas’s sentencing guidelines, Minnesota’s best response to Blakely is to return some sentencing discretion to the judiciary by implementing a system of voluntary guidelines.

Note: The Legislature Should Clean Up Its Act—The Minnesota Citizens’ Personal Protection Act, A Dnr Technical Bill, And The Single-Subject And Title Clause Of The Minnesota Constitution, Melissa M. Milbert

William Mitchell Law Review

This note explores the Ramsey County District Court’s decision in Unity Church v. Minnesota recently affirmed by the Minnesota Court of Appeals. This note does not, however, debate the merits of Minnesota’s conceal-and-carry law. Part II traces the legislative path taken by both the natural resource and conceal-and-carry bills. Part II surveys the history of the single-subject and title clause of the Minnesota Constitution and the evolution of the Minnesota Supreme Court’s interpretation of the clause since its enactment. Part III summarizes the factual and procedural posture of the Unity Church decision. Part IV then contends that the legislature’s enactment …

Chained To The Past: An Overview Of Criminal Expungement Law In Minnesota —State V. Schultz , Jon Geffen, Stefanie Letze

William Mitchell Law Review

This article explains Minnesota’s expungement law and analyzes a recent Minnesota Court of Appeals decision that limits the expungement remedy. Specifically, this article begins by examining the effects of a criminal record and the purposes of expungement.8 An expungement’s main purpose is to seal an individual’s criminal record from public view, thereby allowing the individual to fully reintegrate into society. This article then provides an overview of current expungement law and its history. This article also explains different types of criminal records and the different mechanisms used to seal each type of record. The focus of this article is on …

The Moussaoui Case: The Mess From Minnesota, Afsheen John Radsan

William Mitchell Law Review

This article, after giving a brief history of the Moussaoui case, identifies the main paradoxes or problems of continuing to deal with him in the criminal system. By no stretch of the imagination does this article provide an exhaustive or comprehensive treatment of the Moussaoui case. Each problem, by itself, could be the subject of a separate law review article. This article suggests that Moussaoui, rather than Yaser Esam Hamdi, or Jose Padilla, or the detainees in Guantanamo Bay, could have served as the true test for determining the minimum process that the American Constitutional system owes to an individual …

State V. Askerooth: Re-Applying The Terry Principle Of Reasonableness To Traffic Stops Under The Minnesota Constitution, Jodie Carlson

William Mitchell Law Review

This note first discusses the Minnesota Supreme Court’s use of the Minnesota Constitution to provide broader protections for its citizens in the area of Fourth Amendment search and seizure law. This note then explains the rationale for the Minnesota Supreme Court’s decision in Askerooth. Finally, this note discusses the Atwater decision and whether it was necessary for the Minnesota Supreme Court to decide Askerooth under the state constitution.

Supreme Court Voting Behavior - 2003 Term, Richard G. Wilkins, Scott Worthington, Lorianne Updike, Jacob Reynolds

UC Law Constitutional Quarterly

The 2003 Term, for the second year, notes a liberal trend across a majority of the Tables of this Study. The voting behavior of individual Justices in 2003 was somewhat more stable this Term in that individual departures from past voting behaviors were less pronounced than in 2002. Nevertheless, the Study still demonstrates continuing instability in the voting behavior of individual Justices. This Term, statistically significant departures from past behavior by at least five Members of the Court are present on six Tables. This might suggest that the voting behavior of the Justices on these Tables is "in transition," although …

Bakke, Grutter, And The Principle Of Subsidiarity, Peter Widulski

UC Law Constitutional Quarterly

When seeking to civilly commit an inmate nearing release from prison, states often adopt a formulation of mental responsibility for criminal behavior that is inconsistent with the standard on which they rely when rebutting a criminal insanity defense. Defendants are permitted to raise certain incapacity defenses in one context, and yet they are prohibited from advancing those same defenses in another. As a result, many states may seek criminal punishment on the theory that a defendant is legally sane and then later argue that the same person has a serious mental abnormality characterized by a propensity to engage in criminal …

The Jacksonian Makings Of The Taney Court, Mark A. Graber

Faculty Scholarship

Many twentieth century commentators regard the willingness of Taney Court majorities to declare laws unconstitutional as proof that the justices on that tribunal adjured Jacksonian partisanship upon taking the bench. Old Republicans during the 1820s fulminated against judicial review of state legislation and sought to repeal Section 25 of the Judiciary Act of 1787, but they were apparently frustrated by a Taney Court which continued imposing contract clause and dormant commerce clause limits on state power. This paper demonstrates that Jacksonians in office supported judicial power. Jacksonian animus was more directed at McCulloch v. Maryland than either Marbury v. Madison …

Supreme Court 2003-2004 Term: The § 1983 Decisions, Martin A. Schwartz

Touro Law Review

No abstract provided.

Eliminating The Exception? Lawrence V. Texas And The Arguments For Extending The Right To Marry To Same-Sex Couples, Tyler S. Whitty

Kentucky Law Journal

No abstract provided.

The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen

Faculty Scholarship

This paper argues that the market participant exception to the dormant commerce clause reflects the same concerns that led to the clear statement doctrine for application of general legislation to the operations of state governments. The genius of the Constitution was to make federal law directly applicable to individuals instead of through state governments – this made enforcement easier and avoided confrontation between the state and nation. Confrontation in which the federal authorities order the state to act in a particular way should be a result of consideration of the need to do so. But the dormant commerce clause by …