Constitutional Law Commons^™

Saul Alinsky And The Litigation Campaign To Win The Right To Same-Sex Marriage, 42 J. Marshall L. Rev. 643 (2009), Gerald N. Rosenberg

UIC Law Review

No abstract provided.

Social Movements, Social Process: A Response To Gerald Rosenberg, 42 J. Marshall L. Rev. 671 (2009), Laura Beth Nielsen

UIC Law Review

No abstract provided.

You Can Move In But You Can't Stay: To Protect Occupancy Rights After Halprin, The Fair Housing Act Needs To Be Amended To Prohibit Post-Acquisition Discrimination, 42 J. Marshall L. Rev. 751 (2009), Scott N. Gilbert

UIC Law Review

No abstract provided.

David Doe V. Goliath, Inc.: Judicial Ferment In 2009 For Business Plaintiffs Seeking The Identities Of Anonymous Online Speakers, 43 J. Marshall L. Rev. 1 (2009), Clay Calvert, Kayla Gutierrez, Karla D. Kennedy, Kara Carnley Murrhee

UIC Law Review

No abstract provided.

Silencing Tory Bowen: The Legal Implications Of Word Bans In Rape Trials, 43 J. Marshall L. Rev. 215 (2009), Randah Atassi

UIC Law Review

No abstract provided.

When Is Lying Illegal? When Should It Be? A Critical Analysis Of The Federal False Statements Act, 43 J. Marshall L. Rev. 111 (2009), Steven R. Morrison

UIC Law Review

No abstract provided.

The Puzzling Case Of Max Feinberg: An Analysis Of Conditions In Partial Restraint Of Marriage, 43 J. Marshall L. Rev. 265 (2009), Jeremy Macklin

UIC Law Review

No abstract provided.

Vindicating The Matriarch: A Fair Housing Act Challenge To Federal No-Fault Evictions From Public Housing, Melissa A. Cohen

Michigan Journal of Gender & Law

Pearlie Rucker, sixty-three years old, had been living in public housing in Oakland, California for thirteen years. Ms. Rucker lived with her mentally disabled adult daughter, Gelinda, as well as two grandchildren and one great-grandchild. Ms. Rucker regularly searched Gelinda's room for signs of drugs, and had warned Gelinda that any drug activity on the premises could result in eviction. Nevertheless, Gelinda was caught with drugs three blocks from the apartment. Despite the fact that Ms. Rucker had no knowledge of Gelinda's drug activity, and in fact had been carefully monitoring what happened in her apartment, the Oakland Housing Authority …

Smith, Stormans, And The Future Of Free Exercise: Applying The Free Exercise Clause To Targeted Laws Of General Applicability, Mark L. Rienzi

Scholarly Articles

Does the Free Exercise Clause extend to situations where the legislature deliberately targets a religious practice, but does so for neutral reasons and is willing to extend the ban to people who happen to engage in the same practice for non-religious reasons? While one can imagine reasonable arguments on both sides about the constitutionality of the Sunday morning alcohol ban, it seems absurd to say that the Free Exercise Clause is not part of the equation. Yet under the First Amendment analysis presently employed by many courts, that result is entirely likely.

The Right To Defensive Arms After District Of Columbia V. Heller, Michael P. O'Shea

West Virginia Law Review

No abstract provided.

Protecting The Innocent: Post-Conviction Dna Exoneration, Sophia S. Chang

UC Law Constitutional Quarterly

Eight states in the nation do not have laws allowing post-conviction DNA exoneration: Alabama, Alaska, Massachusetts, Mississippi, Oklahoma, South Carolina, South Dakota, and Wyoming. Without such laws, most wrongly convicted prisoners have no chance at proving their innocence because their defense depends on the exculpatory, yet unattainable, evidence that DNA provides. Denial of access to DNA evidence, whether prior to or after conviction, is an unconstitutional violation of due process. Additionally, forcing innocent people to remain in prison denies basic rights of prisoners and constitutes cruel and unusual punishment.

This Note argues that the prohibition of post-conviction DNA exoneration defeats …

Protestant Dissent And The Virginia Disestablishment, 1776-1786, Carl H. Esbeck

Faculty Publications

In Everson v. Board of Education (1947), the Supreme Court elevated the events surrounding the disestablishment of the Anglican Church in Virginia during and soon after the American Revolution as a principal guide for the meaning of the Establishment Clause. The rule to come out of the Virginia experience is that support for religion should be voluntary thus, no active support by the government. An in-depth examination of James Madison's Memorial and Remonstrance opposing Patrick Henry's Assessment Bill is undertaken here not only because of its role in the Virginia disestablishment, but because it is the most important document on …

Eighth Amedment Gaps: Can Conditions Of Confinement Litigation Benefit From Proportionality Theory?, Alexander A. Reinert

Fordham Urban Law Journal

This Article focuses on two separate issues deriving from the Eighth Amendment's "cruel and unusual punishment" clause. Specifically, it discusses classic conditions of confinement litigation and sentencing proportionality litigation. Confinement litigation includes cases challenging the lived experiences of prisoners such as overcrowding, excessive force, failure to provide adequate medical care, and deprivation of material needs. Sentencing proportionality litigation involves challenges to the length of a prison sentence or mode of punishment. The Article, unlike modern contemporary scholarship, attempts to draw connections between each doctrinal area, ultimately suggesting ways in which proportionality litigation can invigorate conditions litigation. Part I consists of …

Facial And As-Applied Challenges Under The Roberts Court, Gillan E. Metzger

Fordham Urban Law Journal

Resistance to facial challenges is a recurring theme of the Roberts Court’s early years. Yet close analysis of the Court’s decisions suggests that its approach to facial and as-applied challenges is largely consistent with prior practice. Despite occasional description of as-applied challenges in narrow terms, it has expressly preserved the possibility that as-applied challenges could be brought pre-enforcement and allowed an as-applied challenge to be the vehicle for broad relief. It has also followed the Rehnquist Court in asserting wide remedial discretion to sever statutes to fit constitutional requirements, and even its strategic use of the facial/as-applied distinction is not …

Inconsistent State Court Rulings Concerning Pregnancy-Related Behaviors, Lidia Hoffman, Monica K. Miller

Journal of Law and Health

State courts vary in their willingness to protect pregnant women's rights to self-determination, bodily integrity, privacy, and religious freedom; these rights are sometimes outweighed by fetal rights to live. Different state courts have issued many competing decisions, which emphasizes a lack of unification in this area of law. This inconsistency in the law creates confusion for women concerning the scope of their legal protections and alters women's selection of prenatal care and decision to give birth. Thus, it is important to recognize the prevailing themes and grounds on which courts have rested their opinions. An analysis of these state court …

Compelled Speech Under The Commercial Speech Doctrine: The Case Of Menu Label Laws, Jennifer L. Pomeranz

Journal of Health Care Law and Policy

No abstract provided.

Ideological Plaintiffs, Administrative Lawmaking, Standing And The Petition Clause, Karl S. Coplan

Elisabeth Haub School of Law Faculty Publications

In the 1992 Lujan v. Defenders of Wildlife decision, Justice Scalia declared that business interests subject to regulation had automatic standing to challenge regulations in court, but that where “the plaintiff is not himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’ to establish.” This article explores the impact this differential standard for court access has on ideologically-motivated public interest plaintiffs, and suggest heightened scrutiny of standing rules under the Petition Clause of the First Amendment based on the viewpoint differential effect of current standing doctrine. This …

Last Best Chance For The Great Writ: Equitable Tolling And Federal Habeas Corpus, Anne R. Traum

Maryland Law Review

No abstract provided.

Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley

Michigan Law Review First Impressions

A response to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009). Professor John Manning's analysis of the Supreme Court's recent federalism decisions works as a platform to further the cause of textualism. His argument fails to persuade, however, because the textualism he says the Court should embrace in federalism cases is antithetical to the atextual nature of the Court's jurisdiction to adjudicate the constitutionality of legislation. Manning prefaces his work by telling readers that his analysis is not an end in itself. His aim, rather, is to "use the methodology" the …

Appellate Review Of Patent Claim Construction: Should The Federal Circuit Be Its Own Lexicographer In Matters Related To The Seventh Amendment, Eileen M. Herlihy

Michigan Telecommunications & Technology Law Review

The Federal Circuit stated in an en banc decision in Cybor Corp. v. FAS Technologies, Inc. that the construction of patent claims is "a purely legal issue," and is therefore subject to de novo review on appeal. The Cybor decision reaffirmed the position of the majority of the Federal Circuit which had been announced in its en banc Markman decision, and proclaimed that the de novo standard of review is supported by the Supreme Court's Markman decision, a Seventh Amendment opinion. However, Cybor included strong opposition to a de novo standard of review from some of the judges of the …

Nobody's Fools: The Rational Audience As First Amendment Ideal, Lyrissa Lidsky

Faculty Publications

Assumptions about audiences shape the outcomes of First Amendment cases. Yet the Supreme Court rarely specifies what its assumptions about audiences are, much less attempts to justify them. Drawing on literary theory, this Article identifies and defends two critical assumptions that emerge from First Amendment cases involving so-called "core" speech. The first is that audiences are capable of rationally assessing the truth, quality, and credibility of core speech. The second is that more speech is generally preferable to less. These assumptions, which I refer to collectively as the rational audience model, lie at the heart of the "marketplace of ideas" …

Response, Frames Of Reference And The "Turn To Remedy" In Facial Challenge Doctrine, Kevin C. Walsh

Scholarly Articles

This Symposium on Facial Challenges in the Roberts Court provides an opportunity to chart a path toward greater doctrinal coherence in light of the Court's most recent uses of the distinction between facial and as-applied challenges. In his contribution to this Symposium, David Faigman makes two claims that I address in this response. The first of Professor Faigman's claims is descriptive: "the debate over facial versus as-applied challenges is merely a subcategory of the pervasive issue concerning defining the proper frame of reference for empirical questions arising under the Constitution.'"' As Professor Faigman uses the term, a "frame of reference" …

No Tears For Creon, Marc O. Degirolami

Scholarly Articles

This essay critiques Professor Martha Nussbaum's book, Liberty of Conscience: In Defense of America's Tradition of Religious Equality (2008). Nussbaum's thesis is that the entire tradition of religious liberty in America can be both best understood (as a historical exercise) and justified (as a philosophical one) by recourse to the overarching principle of equal respect-that "[a]ll citizens have equal rights and deserve equal respect from the government under which they live." Nussbaum insists that equal respect pervades the tradition and that all other values of religious liberty are subordinate to it. She examines various free-exercise and establishment issues in light …

Ex Parte Young: Sovereignty, Immunity, And The Constitutional Structure Of American Federalism, Charlton C. Copeland

Articles

No abstract provided.

Four Terms Of The Kennedy Court: Projecting The Future Of Constitutional Doctrine, Kenneth M. Murchison

University of Baltimore Law Review

No abstract provided.

Butchering Statutes: The Postville Raid And The Misinterpretation Of Federal Criminal Law, Peter R. Moyers

Seattle University Law Review

This article argues that a federal district court misinterpreted several statutes after an immigration raid in Postville, Iowa. In Part II, I begin with an account of Agriprocessors' prior legal troubles, which explains how it became such a politically attractive target. Next, I describe how the investigation of Agriprocessors led to a raid seeking to execute nearly 700 criminal arrest warrants. In Part III, I describe the causes of the accelerated criminal process that resulted in nearly 300 guilty pleas and sentencings in the span of twelve days. In Part IV, I argue that the accelerated process was premised upon …

Skirting The Line: Restricting Online Pedophilic Guides Within The Confines Of The First Amendment, Danielle M. Cross

Seattle University Law Review

This Comment argues that parents should not be left to self-help remedies to combat pedophiles in public locations. Part II of this Comment explores the psychological make-up of a pedophile by introducing the diagnostic criteria of pedophilia and by examining lengths to which pedophiles will go to find children. This Part also describes the danger created by websites with seemingly innocuous images and writings, explaining how these websites enable and validate pedophilia. Then, Parts III and IV tackle the issue on two fronts, through state action and federal congressional action, respectively. Part III describes and discusses the SSA, a recent …

During And In Relation To: How The Ninth Circuit Rewrote A Statute In The Case Of The Millennium Bomber, Peter A. Talevich

Seattle University Law Review

This Note analyzes the facts of the Ressam case and the legal analysis applied to it by both the Ninth Circuit and the Supreme Court. Part II discusses the intriguing history of the Ressam case. Part III examines the Ninth Circuit's reasoning in Ressam and shows why the Supreme Court was correct in reversing the improperly decided case. Part IV discusses the possible scope of the explosives statute under each interpretation--without or with a relational element. Finally, Part V concludes by commenting on the future of the explosives statute in light of the Supreme Court's decision, as well as the …

Supreme Court Preemption Doctrine, Christopher H. Schroeder

Faculty Scholarship

In the United States, law and policy always function within layers of government authority – federal, state, and local. This book primarily examines the choices policy makers, legislatures, or agencies face in allocating and coordinating responsibility among these layers; choices that will always be constrained by any limits placed on them by the U.S. Constitution, as interpreted by the Supreme Court. This chapter explores the doctrine that the Supreme Court has elaborated to address one set of those constraints, namely the doctrine of preemption.

Preemption doctrine rests on Article VI of the Constitution, which provides that the laws and treaties …