Constitutional Law Commons^™

Torture, Necessity, And Supreme Emergency: Law And Morality At The End Of Law, Zachary R. Calo

Scholarly Works

This paper employs Michael Walzer's concept of "Supreme Emergency" to address the permissibility of torture under conditions of necessity. It proposes moving beyond both utilitarian and deontological approaches to legal authority in order to understood necessity as a moral category. A full account of right action under conditions of necessity therefore demands taking account of the distinct yet cooperative function provided by legal and moral norms. A political official might therefore possess moral but not legal warrant to act in contravention of binding legal norms. Preserving the validity of law is essential to the economy of social reconstitution in the …

Racial Exhaustion, Darren Lenard Hutchinson

UF Law Faculty Publications

Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme …

Police Interrogation During Traffic Stops: More Questions Than Answers, Tracey Maclin

UF Law Faculty Publications

This short paper focuses on whether the Fourth Amendment permits police, during a routine traffic stop, to arbitrarily question motorists about subjects unrelated to the purpose of the traffic stop. The paper was prompted by a recent Ninth Circuit ruling, United States v. Mendez, 476 F.3d 1077 (9th Cir. 2007), which was authored by Judge Stephen Reinhardt. Prior to Mendez, the Ninth Circuit had taken the position that the Fourth Amendment barred police from questioning motorists about subjects unrelated to the purpose of a traffic stop, unless there was independent suspicion for such questioning. This rule was based on the …

The Stubborn Incoherence Of Regulatory Takings, Mark Fenster

UF Law Faculty Publications

The Supreme Court's unanimous decision in Lingle v. Chevron U.S.A., Inc. was met with restrained but largely appreciative notice by commentators. Lingle declared that the Takings Clause affirmatively protects property owners by awarding them compensation for regulations that impose the functional equivalent of a condemnation of their property. The regulatory takings doctrine thus differs from the substantive due process doctrine, which instead reviews the validity of a regulation and offers as its remedy the invalidation of an offending government action. Clearing the underbrush that had grown in nearly a century of Supreme Court precedent, the Court appeared to have made …

Big Bill Haywood's Revenge: The Original Intent Of The Exclusionary Rule, Milton Hirsch

St. Thomas Law Review

We have been given fair warning. In two recent cases, Hudson v. Michigan and Herring v. United States, the Supreme Court made clear its desire to phase out the Fourth Amendment exclusionary rule - that century-old ornament of constitutional jurisprudence pursuant to which evidence obtained in violation of a defendant's right to be free from unreasonable search and seizure will not be received in court. Justice Scalia, writing for a bare majority in Hudson, argued that the utility, if any, of the exclusionary rule has run its course; and that the rule itself is better supplanted by alternative means of …

Defining Empirical Frames Of Reference In Constitutional Cases: Unraveling The As-Applied Versus Facial Distinction In Constitutional Law, David L. Faigman

UC Law Constitutional Quarterly

As well illustrated by the litigation in Brown v. Board of Education, it is incumbent on the Supreme Court to identify the empirical frame of reference it uses to evaluate the constitutionality of some challenged action. In Brown, this required the Court to determine whether the proper frame of reference through which to measure constitutionality were the general effects of segregation, or whether constitutionality had to be assessed based on segregation's effects on the children involved in the specific cases before the Court. The Court chose the general frame, thus invalidating school segregation generally. This framing problem occurs throughout constitutional …

Second-Class Citizens: The Schism Between Immigration Policy And Children's Health Care, John A. Castro

UC Law Constitutional Quarterly

This article argues that two courses of American politics, immigration policy and children's health care, have developed in such a way so as to cause a string of conflicts that ultimately deprives citizen children of undocumented immigrants of rights and privileges enjoyed by their native-parented counterparts. Such a result, the author argues, is nothing short of a deprivation of Fourteenth Amendment citizenship rights. The article begins with a historical overview of the birth of children's health care, a cause that has its roots in child labor and immigration. The article then provides an overview of how the conflicts between immigration …

An Essay On The Emergence Of Constitutional Courts: The Cases Of Mexico And Columbia, Miguel Schor

Indiana Journal of Global Legal Studies

This essay explores the emergence of the Mexican Supreme Court and the Colombian Constitutional Court as powerful political actors. Mexico and Colombia undertook constitutional transformations designed to empower their respective national high courts in the 1990s to facilitate a democratic transition. These constitutional transformations opened up political space for the Mexican Supreme Court and the Colombian Constitutional Court to begin to displace political actors in the tasks of constitutional construction and maintenance.

These two courts play different roles, however, in their respective democratic orders. Mexico chose to empower its Supreme Court to police vertical and horizontal separation of powers whereas …

Omg! Missing The Teachable Moment And Undermining The Future Of The First Amendment--Tisnf!, Mary Sue Backus

Faculty Articles

No abstract provided.

Judicial Activism And Fourteenth Amendment Privacy Claims: The Allure Of Originalism And The Unappreciated Promise Of Constrained Nonoriginalism, Daniel O. Conkle

Articles by Maurer Faculty

Among other meanings, "judicial activism" can be defined as judicial decisionmaking that frustrates majoritarian self-government and that is unconstrained by law. So understood, judicial activism is presumptively problematic, because it frustrates customary democratic and judicial norms.

In this essay, I address originalist and nonoriginalist responses to the presumptive problem of judicial activism in the context of Fourteenth Amendment privacy claims, including claims relating to abortion, sexual conduct, and same-sex marriage. I argue that originalism is an overrated solution, largely because current understandings of originalism, despite claims to the contrary, do not provide standards of decision that are sufficiently clear to …

Constitutionalism Before Constitutions: Burma's Struggle To Build A New Order, David C. Williams

Articles by Maurer Faculty

No abstract provided.

Book Review. Religious Liberty In America: The First Amendment In Historical And Contemporary Perspective, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Are State Constitutions Un-American?, Justin R. Long

Law Faculty Research Publications

No abstract provided.

Boumediene V. Bush And Extraterritorial Habeas Corpus In Wartime, Riddhi Dasgupta

UC Law Constitutional Quarterly

How did the United States Supreme Court in Boumediene v. Bush conclude that the detention facility in Guantdnamo Bay, Cuba is indeed American territory for the purpose of habeas corpus? Why did the Court extend habeas to non-citizens as well? Which legal provisions and precedents guided the Supreme Court's analysis? The United States Constitution's Suspension Clause, precluding the suspension of habeas corpus except in well defined and discrete national security urgencies, is the controlling trump card raised by the detainees. This Commentary sets the stage for a multivariable conversation about the interplay among separation of powers, rejection of executive supremacy, …

A Picture Is Worth A Thousand Words: The Effect Of Spectators' Display Of Victim Photographs During A Criminal Jury Trial On A Criminal Defendant's Fair Trial Rights, Elizabeth Lyon

UC Law Constitutional Quarterly

Spectators at criminal jury trials have displayed photographs of a deceased victim inside the courtroom on items such as on buttons, T-shirts, or collages. Courts have recognized that these photographs simply function as grief occasioned by the loss of a victim. Consequently, courts have allowed photographs inside the courtroom, like many other emotional expressions of spectators that are permissible.

This Note argues that victim photographs in the courtroom go beyond an ordinary showing of emotion, serving to elicit sympathy from jurors and calling on them to vindicate the victim's loss. For these reasons, such photographs violate a criminal defendant's constitutional …

Looking Through Both Ends Of The Telescope: Facial Challenges And The Roberts Court, David L. Franklin

UC Law Constitutional Quarterly

This Article explores how the Roberts Court has negotiated the choice between as-applied and facial review in its cases, and what those cases tell us about how the justices view the ongoing project of translating constitutional meaning into constitutional doctrine. Part I of the Article describes the traditional model of judicial review, which strongly favors as-applied challenges over facial ones, and then canvasses several recent cases in which the Court has reaffirmed its adherence to that model. Part II discusses two categories of cases that have been described as exceptions to the traditional modeloverbreadth cases and abortion rights cases-and discovers …

Theocracy In America: Should Core First Amendment Values Be Permanent, Miriam Galston

UC Law Constitutional Quarterly

Recent attempts to craft constitutions in Iraq and Afghanistan have focused attention on problems that emerge in countries with a governmentsponsored religion that attempt to organize as constitutional democracies. The tension inherent in combining theocratic and democratic principles seems foreign in the United States because of the nation's longstanding commitment to the First Amendment's guarantee of free exercise of religion for individuals and disestablishment of religion on the part of government entities. Yet the United States is not totally immune from this tension.

In the last several decades, there has been increasing pressure to adopt amendments for the purpose of …

The Adam Walsh Act: Un-Civil Commitment, Emily Eschenbach Barker

UC Law Constitutional Quarterly

Recently, the Supreme Court granted certiorari on question of whether or not enactment of the Commitment Provision of the Adam Walsh Child Protection and Safety Act of 2006 Was within Congress's authority. This note will show that Congress lacked the authority to enact the Commitment Provision under either its enumerated or incontestable federal powers.

The discussion will begin with and overview of the relevant Supreme Court precedents bearing on a constitutional determination of this kind. This note will show that proper reading of these precedents demonstrates that the clause upon which the federal government most often defends its power to …

From Privacy To Liberty: Sharing After Lawrence, Thomas P. Crocker

Studio for Law and Culture

From Privacy to Liberty addresses the failure of the Constitution to protect shared social aspects of ordinary life. Under the Supreme Court’s third-party doctrine, if I reveal information to another person, I no longer have an expectation of privacy, and thus, I no longer have Fourth Amendment protection in that information. This much-maligned doctrine has been criticized by many, and defended only once recently in the pages of the Michigan Law Review. The effect of this doctrine is to leave most aspects of ordinary life shared in the company of others constitutionally unprotected. For example, revealing one’s location to …

Blackboard Jungle: Delinquency, Psychiatry, And The Bio-Politics Of Brown, Anders Walker

Studio for Law and Culture

In 1955, Metro-Goldwyn-Mayer released a controversial film about juvenile delinquency entitled Blackboard Jungle. Georgia Governor Ernest Vandiver subsequently used the film as a metaphor for what would happen to southern schools were Brown enforced, marking the beginnings of a much larger campaign to articulate southern resistance to integration in popular terms. Taking Blackboard Jungle as a starting point, this article recovers the intersection between discourses of delinquency and desegregation at mid-century, showing how civil rights groups and segregationists alike both drew from mass culture and social psychiatry to advance their constitutional agendas. It concludes by showing that even as …

Ascertaining The Burden Of Proof For An Award For Punitive Damages In New York? Consult Your Local Appellate Division, Leon D. Lazer, John R. Higgitt

Touro Law Review

No abstract provided.

The Appropriations Power And Sovereign Immunity, Paul F. Figley

Scholarly Articles in Law Reviews & Journals

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690–1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the …

Strader V. Graham: Kentucky's Contribution To National Slavery Litigation And The Dredscott Decision, Robert G. Schwemm

Kentucky Law Journal

No abstract provided.

What The Doctor Ordered: Balancing Religion And Patient Rights In U.S. Pharmacies, Rachel T. Caudel

Kentucky Law Journal

No abstract provided.

Transnational Wiretaps And The Fourth Amendment, Kristopher A. Nelson

UC Law Constitutional Quarterly

The Fourth Amendment protects Americans within the borders of the United States, but its applicability outside American territory is less clear. This Note maintains that Fourth Amendment protections should cover wiretap evidence seized abroad, not just that gathered domestically. These protections should apply whenever a prosecutor seeks to admit such evidence in criminal prosecutions in the United States. Such protections are fundamental whenever the government acts to gather or use evidence, whether that evidence was obtained outside the territorial jurisdiction of the United States or not.

The practical application of these protections for evidence gathered abroad presents problems, however. For …

Legal Claims As Private Property: Implications For Eminent Domain, Jeremy A. Blumenthal

UC Law Constitutional Quarterly

May the government use eminent domain to take a private citizen's right to sue? May the government take a citizen's right to sue and exercise it, or take that right to sue and deliberately not exercise it? Even more controversial, may the government use eminent domain to condemn your legal claim and, consistent with its broad powers as delineated in Kelo, transfer that claim to another private party to pursue (or not)?

This Article explores these questions by examining the Takings Clause implications of considering the right to sue as private property. Specifically, the Article shows that legal claims are …

Homeless But Not Hopeless: How The Tibetan Constitution Governs A People In Exile, Tsering Kheyap

UC Law Constitutional Quarterly

In 1991, the Tibetan Government in Exile adopted the Tibetan Constitution. This is a living document that is widely recognized by the Tibetan community inside Tibet and those living in exile. Since its adoption, it has been amended eleven times and successfully provides for the democratic elections of exile leaders.

This Note argues that formal and informal international recognition of the importance and potential value of this document can help secure environmental and political stability, effective communication and democratic development throughout the region. In order for the Tibetan Constitution to achieve international acceptance as the legitimate governing document of the …

Muddy Waters: Congressional Consent And The Great Lakes - St. Lawrence River Basin Water Resources Compact, Sonya F. Palay

UC Law Constitutional Quarterly

After nearly a century of negotiations among the Great Lakes states, tribes, and provinces, a promising new agreement was recently ratified by the parties and recognized by Congress, this is the Great Lakes-St. Lawrence River Basin Water Resources Compact. Interstate compacts, may serve as a particularly useful tool for solving regional environmental problems, which the federal government lacks the interest to resolve. However, due to constitutional strictures, interstate compacts are not binding unless Congress grants consent to the compact. This Note focuses on the recent Great Lakes Compact as a means to examine the current state of the law surrounding …

Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler

Faculty Scholarship

Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …

A Constitution Without Constitutionalism: Reflections On Iraq's Failed Constitutional Process, Feisal Amin Istrabadi

Articles by Maurer Faculty

No abstract provided.