Constitutional Law Commons^™

A Theory Of Government Damages Liability: Torts, Constitutional Torts, And Takings, Lawrence Rosenthal

ExpressO

Theories of tort liability generally fall within two broad camps: the instrumentalists claim that tort liability promotes efficient investments in safety by cutting into the revenues of those who under-invest in safety; and the advocates of corrective justice claim that tort liability embodies a moral obligation of culpable parties to bear losses for which they are fairly considered responsible. Neither theory offers much support for government tort liability. Unlike private tortfeasors, the government’s objective is not profit maximization; it responds to political and not market discipline. Thus, the instrumental justification for tort liability is wanting in the public sector. As …

Equal Protection In The World Of Art And Obscenity: The Art Photographer's Latent Struggle With Obscenity Standards In Contemporary America, Elaine P. Wang

ExpressO

In the realm of obscenity law in the United States, photography as an art form is not on equal footing with more traditional art forms such as painting, drawing, and sculpture. This is a latent dilemma for artistic photographers because the law itself – in the form of state obscenity laws and the Supreme Court’s three-pronged test in Miller v. California – does not explicitly set forth varied standards of obscenity based on artistic medium. However, given the marginalization of photography in art history, there exists a bias against photography as “serious art.” Furthermore, evidence of the differential treatment of …

Circular 230 Opinion Standards, Legal Ethics And First Amendment Limitations On The Regulation Of Professional Speech By Lawyers, David T. Moldenhauer

ExpressO

This article addresses the legal ethics and First Amendment implications of recent Treasury Department regulations governing legal opinions on tax-motivated transactions. As discussed in the article, the regulations are intended to address the significant policy and budgetary issue of practitioners’ involvement in the development, marketing and encouragement of abusive tax shelters. However, the article concludes that the regulations are in many respects an inappropriate response to these problems because their prohibitions prevent a lawyer from giving taxpayers a complete, informed assessment of their rights. As such, they create significant ethical conflicts and deny the public legal advice. More generally, they …

The Suffocation Of Free Speech Under The Gravity Of Danger Of Terrorism, Tim Davis

ExpressO

On July 14, 2005, Ali al-Timimi was sentenced to life in prison plus 70 years for acts of pure speech. The United States government contended that Timimi, through his lectures and direct personal appeals, induced and/or aided and abetted local Muslim men to leave the country and pursue jihad training with the intent to defend the Taliban against all potential enemies, including the United States. Buried in nearly 200 pages of jury instructions was a single paragraph that unceremoniously described the law of protected speech under Brandenburg v. Ohio. At first blush, Brandenburg seemed to unequivocally lay down the rule …

Fair Use And The First Amendment: Corporate Control Of Copyright Is Stifling Documentary Making And Thwarting The Aims Of The First Amendment, Paige Gold

ExpressO

Documentary motion pictures constitute a crucial part of contemporary public debate, because in today’s highly consolidated mass media environment, documentaries offer the kinds of independent voices that the First Amendment was designed to protect. However, current intellectual property practices are chilling speech by forcing documentary filmmakers to tailor their films to accommodate new, strict licensing practices. When filmmakers are compelled to edit their work to meet insurance requirements, it harms the interests of not just the filmmaker, but also the public. Thus, the “clearance culture,” in which anything and everything that could possibly lead to a lawsuit must be cleared, …

Torture: Considering A Framework For Limiting Use, Scott J. Goldberg

ExpressO

Abu Graib, Guantanamo, the War on Terror—the debate over the use of torture is still very much alive in the world today. The debate can be divided into two questions: (1) whether there should be an actual absolute ban where torture is never allowed either ethically or legally, and (2) if torture should be allowed under certain circumstances what form of regulation is best able to ensure that it is used only in those most limited circumstances. Currently, there is an absolute ban in place, yet world leaders, applying a case-by-case utilitarian approach, in fact permit the use of torture …

Toward A Federal Common Law Of Bankruptcy: Judicial Lawmaking In A Statutory Regime, Adam J. Levitin

ExpressO

Bankruptcy is a statutory system, yet it is replete with practices for which there is no direct authorization in the Bankruptcy Code. This article argues that the authorization for judicial creation of bankruptcy law beyond the provisions of the Code has been misidentified as the equity powers of bankruptcy courts. This misidentification has led courts to place inappropriate statutory and historical limitations on non-Code practices because of discomfort with unguided equitable discretion.

Both the statutory and historic limitations are problematic. The statutory authorization for the bankruptcy courts’ equitable powers appears to have been repealed by what one judge has called …

The Place Of Structural Arguments In Contemporary Constitutional Theory, Kenneth Ward

ExpressO

This essay illustrates how our interest in questions of constitutional doctrine makes it difficult to assess structural arguments about judicial authority. In the past forty years, we have witnessed a shift in American constitutional theory. Scholars once assessed judicial authority based on their expectations of how judges should decide cases. In time, many concluded that discretion is an inevitable consequence of constitutional interpretation and therefore sought to justify such authority.

This shift has led some scholars to give greater emphasis to structural arguments. They identify institutional virtues that explain the judiciary’s role in a well ordered government. Although these scholars …

The Little Word "Due", Andrew T. Hyman

ExpressO

The meaning of the Due Process Clause is investigated, with special emphasis on the little word "due." The author concludes that the text and structure of the Constitution --- as well as the intentions of the framers --- strongly support the view of the late Justice Hugo Black regarding the meaning of this Clause in the Fifth and Fourteenth Amendments. In the Constitution, due process means process due according to the law of the land, and a statute is part of the law of the land if it does not violate or undermine any other provision of the Constitution. Thus, …

The (Neglected) Importance Of Being Lawrence: The Constitutionalization Of Public Employee Rights To Decisional Non-Interference In Private Affairs, Paul M. Secunda

ExpressO

This paper argues that whatever debates continue to stew regarding the true meaning of Lawrence v. Texas, at the very least, Lawrence represents the recognition of an individual's heightened interest in decisional non-interference in private affairs. This is an important constitutional development since a problem under the doctrine of unconstitutional conditions only arises when the government offers a benefit, like government employment, conditioned on the waiver of a preferred constitutional right. Thus, a government employer, post-Lawrence, should be prohibited, under the doctrine of unconstitutional conditions, from firing a government employee who exercises her rights to decisional non-interference in private affairs. …

Constitutional Education For The People Themselves, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

Unapportioned Direct-Consumption Taxes And The Sixteenth Amendment, Erik M. Jensen

Faculty Publications

The point of this essay is simple: a direct-consumption tax like the Forbes-Armey-Hall-Rabushka flat tax or the Nunn-Domenici USA tax is not a "tax on incomes" within the meaning of the Sixteenth Amendment. As a result, such a tax would be constitutional only if it were apportioned among the states on the basis of population. And since these taxes would not be apportioned-how could they be and work as they are intended to work?-they would be unconstitutional.

Taxation And The Constitution: How To Read The Direct-Tax Clauses, Erik M. Jensen

Faculty Publications

This essay responds to Professor Bruce Ackerman, who had challenged the author's understanding of the Direct-Tax Clauses of the Constitution and the Sixteenth Amendment to that Constitution.

Imrei Chayim V. Wisel, Yigal Mersel (Registrar)

Translated Opinions

The District Court annulled an arbitration award.  A party wishes to appeal that decision in this Court.  Section 38 of the Arbitration Law, 5728-1968 (hereinafter: the arbitration law) determines that a decision made pursuant to that law can be appealed by permission.  The party argues before the Registrar of the Court that the appeal should be heard, despite that, as an appeal as of right, since section 17 of Basic Law: Judicature (hereinafter: the basic law) determines that "a judgment of a court of the first instance can be appealed as of right, excepting a judgment of the Supreme Court", …

Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer

ExpressO

The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three “guideposts” set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant's conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any “civil or criminal penalties that could be imposed for comparable misconduct.” Following up on this pronouncement …

The Apportionment Of ‘Direct Taxes’: Are Consumption Taxes Constitutional?, Erik M. Jensen

Faculty Publications

In debates about reorienting the American revenue system, nearly everyone assumes the Constitution is irrelevant. With few exceptions, the tax provisions in the original Constitution - particularly the direct-tax apportionment rule and the uniformity rule - have been interpreted to be paper tigers. And in only one major case has the Sixteenth Amendment, which excepts "taxes on incomes" from apportionment, been held to limit congressional power.

S Rejecting conventional wisdom, this Article argues that some consumption taxes would violate constitutional norms. The Article focuses on the requirement that “direct taxes” be apportioned among the states on the basis of population. …

Popular Sovereignty, Judicial Supremacy, And The American Revolution: Why The Judiciary Cannot Be The Final Arbiter Of Constitutions, William J. Watkins

ExpressO

Key to understanding the connection between popular sovereignty and judicial review is the historical development of the theory of sovereignty in England and America. Section One of this article traces the defeat of divine right theory in England and the emergence of parliamentary sovereignty. Section Two considers the American colonists’ rejection of parliamentary sovereignty during the Revolution and their establishment of popular sovereignty as the cardinal principle of American constitutionalism. Section Three studies English precedent often cited as providing the basis for the American doctrine of judicial review and shows that these English cases were simply exercises in statutory construction …

Living By The Sword: The Free Exercise Of Religion And The Sikh Struggle For The Right To Carry A Kirpan, Rishi S. Bagga

ExpressO

Sikhism is a 500 year old religion with a growing presence in the United States. However, one of the articles of faith required for Sikhs, a kirpan (a ceremonial sword), conflicts with the norms of American life for these often misunderstood people. This paper gives a brief primer on Sikhism and discusses some of the day-to-day problems and recent issues facing kirpan-carrying Sikhs in North America. Upon reviewing the current state of free exercise jurisprudence as applied to the kirpan, I outline several suggestions for the acceptance and accommodation of kirpans.

Dan The Xenophobe Rides The A-Train Or The Modern, "Secret" Racist: Unconscious Racism In `Enlightened America' And The Destructive Stereotypes That Fuel It, Richard D. Salgado

ExpressO

A short story style exploration of unconscious racism in modern "enlightened" America.

Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber

Faculty Scholarship

This paper interprets the constitution of 1791 in light of the constitution of 1787. The persons responsible for the original constitution thought they had secured fundamental rights by a combination of representation, the separation of powers, and the extended republic. The Bill of Rights, in their view, was a minor supplement to the strategies previously employed for preventing abusive government practices. Proposed amendments were less a list of fundamental freedoms than an enumeration of those rights likely to appease moderate anti-Federalists. That many vaguely phrased rights lacked clear legal meaning was of little concern to their Federalist sponsors, who trusted …

The Political Economy Of Education Federalism, Michael Heise

Cornell Law Faculty Publications

The No Child Left Behind Act represents the federal government's most significant foray into the nation's elementary and secondary public school policymaking terrain. Although the Act undertakes unassailable policy goals, its critics argue that it represents an unwarranted federal intrusion into education policymaking, generates unintended policy consequences, and amounts to an unfunded federal mandate. Constitutionalists dwell on the Act's threat to structural federalism as it plausibly strains Congress's conditional spending authority. The coercive force that federal education funds exert on local school districts and states attracts particular attention. The No Child Left Behind Act, however, safely navigates through an even …

Gender And Constitutional Design, Paula A. Monopoli

Faculty Scholarship

Does the allocation of power between the legislative and executive branches, and the way we define the scope of the executive affect whether women ascend to executive office? In this article, Professor Monopoli argues that the constitutional process of boundary-drawing between the legislative and executive branches of government has implications for how successful women will be in ascending to executive positions. She posits that the Hamiltonian vision of an expansive executive with plenary power is the model least likely to result in women’s ascending to executive office. The essay traces the philosophical heritage of Hamilton’s vision and outlines the empirical …

The Cost Of Good Intentions: Why The Supreme Court's Decision Upholding Affirmative Action Admission Programs Is Detrimental To The Cause, Leslie Yalof Garfield

Elisabeth Haub School of Law Faculty Publications

This article provides an overview of the Federal Courts’ interpretation of equal protection challenges to affirmative action admission policies beginning with University of California v. Bakke through the recent Supreme Court decisions of Grutter v. Bollinger and Gratz v. Bollinger. The article then identifies and outlines the appropriate elements of a constitutionally sound affirmative action admission policy. Finally, the article concludes that the permissible policy is almost unattainable for schools other than small institutions.

"Can You Hear Me Now?": Expectations Of Privacy, False Friends, And The Perils Of Speaking Under The Supreme Court's Fourth Amendment Jurisprudence, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

Part I of this article offers a brief history of the development of Fourth Amendment jurisprudence and the Court's articulation and application of what has come to be known as the exclusionary rule, which forbids some (but not all) government use of evidence seized in violation of the Fourth Amendment. Part II focuses on the false-friend cases, elaborating the Court's reasoning and showing why, although the most famous cases involve varying kinds of activity from electronic recording to eavesdropping to simple reporting of the false friend's observation, the Court's method has united these cases under a single analytical rubric. Part …

Federal Constitutional Restraints On Tax Competition Among The American States, Walter Hellerstein

Scholarly Works

This article examines the judicially developed rules limiting interstate tax competition in the United States and the constitutional framework out of which they arise.

Exploring The Myths About The Ninth Circuit, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Grutter At Work: A Title Vii Critique Of Constitutional Affirmative Action, Jessica Bulman-Pozen

Faculty Scholarship

This Note argues that Title VII doctrine both illuminates internal contradictions of Grutter v. Bollinger and provides a framework for reading the opinion. Grutter's diversity rationale is a broad endorsement of integration that hinges on the quantitative concept of critical mass, but the opinion's narrow-tailoring discussion instead points to a model of racial difference that champions subjective decisionmaking and threatens to jettison numerical accountability. Title VII doctrine supports a reading of Grutter that privileges a view of diversity as integration and therefore cautions against the opinion's conception of narrow tailoring. Grutter, in turn, can productively inform employment discrimination law. The …

Intelligent Design And The First Amendment: A Response, Jay D. Wexler

Faculty Scholarship

In September 2005, a federal district judge in Pennsylvania began presiding over the nation's first trial regarding the constitutionality of introducing the concept of "intelligent design" (ID), a purportedly scientific alternative to the theory of evolution, into the public schools. My previous work has argued that teaching ID in the public schools would raise serious constitutional problems. In a series of writings, including a full length book and several articles, Baylor University professor Francis Beckwith has argued that public schools may constitutionally teach ID. In doing so, Beckwith has critiqued a number of arguments I have previously advanced in my …

Winning Wirzburger And Defeating The Blaine Amendments: Arguing Present Efficacy Instead Of Past Intent, Brendan Michael Groves

ExpressO

The case of Wirzburger v. Galvin, currently on a writ of certiorari to the Supreme Court, may set the tone for all religious discrimination cases in the future. Massachusetts’ constitutional amendments that proscribe any citizen initiatives from either dealing with religion in general or attempting to repeal the states Blaine Amendment are at issue in the case. Petitioner’s counsel, the Becket Fund, rightly views this case as paramount in the long-march to victory over the anti-Catholic Blaine Amendments still codified in 37 state constitutions. However, they have lost almost every stage of the case.

This article argues that Wirzburger and …

Help Wanted: The Constitutional Case Against Gerrymandering To Protect Congressional Incumbents, Walter M. Frank

ExpressO

This article argues that the Supreme Court has been incorrect in treating incumbent protection gerrymanders as a traditional and acceptable redistricting principle. Part I of the article sets out 3 separate lines of attack on excessive incumbent protection gerrymanders. Part II makes the case for judicial regulation of such gerrymanders and proposes a standard that would create a presumption of unconstitutionality that could be rebutted. A process oriented remedy is proposed and potential obstacles to a suit are also addressed.