Constitutional Law Commons^™

Constitutional Law: Retarded Justice: The Supreme Court's Subjective Standards For Capital Punishment Of The Mentally Retarded, Daniel Nickel

Oklahoma Law Review

No abstract provided.

The Law Of Obscenity - Or Absurdity, H. Franklin Robbins Jr., Steven G. Mason

St. Thomas Law Review

At any rate, if the First Amendment only protects expression that the majority believes will promote the right values, it does not protect very much. Sexually explicit materials arouse intense, deep-seated feelings, and from a moral point of view, the desire to stop their dissemination is understandable. But the censoring of morally bad ideas is glaringly incompatible with the most basic principles of First Amendment law. Nonetheless, for nearly two hundred years the censorship of morally offensive materials has been a part of our legal history, notwithstanding the absolute terms of the First Amendment.

The Great Cookie Caper: Internet Privacy And Target Marketing At Home And Abroad, Jason A. Kotzker

St. Thomas Law Review

Did George Orwell have it all wrong? Is Big Brother really a multinational company with a Web site employing cookies; enabling it to track its visitors' every move? The Internet's popularity as a virtual marketplace and the resulting boom of e-commerce has developed exponentially due to the speed and convenience of on-line shopping and access to information. However, this technological advancement also allows for the collection, storage, and transmittal of personal information. With unlimited access to a vast array of personal information, advertising agencies conduct marketing campaigns targeted at individual e-consumers. Unfortunately, most consumers are unaware that they divulge personal …

Semblances Of Sovereignty: The Constitution, The State, And American Citizenship, T. Alexander Aleinikoff, Harvard University Press, 2002. Pp. 223, Harvey Gee

St. Thomas Law Review

A major contribution to the contemporary thinking about immigration, citizenship, and assimilation is offered by Georgetown Law Center Law Professor T. Alexander Aleinikoff in his recent volume, Semblances of Sovereignty: The Constitution, the State, and American Citizenship. The book helps to advance the immigration debate and define what it means to be an American. Aleinikoff paints with broad theoretical strokes with academics in mind. Relying on theory, he asks readers to consider how the court has treated the issue of "citizenship" and how it has defined its boundaries and limitations. He also addresses the reasons why traditional notions of immigrant …

Race Conscious Affirmative Action By Tax Exempt 501(C)(3) Corporations After Grutter And Gratz, David A. Brennen

Law Faculty Scholarly Articles

The Equal Protection Clause of the Fourteenth Amendment generally acts as a legal limit on the permissible bounds of government action. Accordingly, public universities and other government entities are constitutionally prohibited from engaging in acts that violate equal protection of the laws. The Supreme Court recently reinforced this point when it ruled, in two related cases, that public universities may consider the race of applicants when making admissions decisions, so long as an applicant's race does not amount to a deciding factor when granting admission. By its very terms, the constitutional limitation imposed by the Equal Protection Clause only directly …

Are Foreign Nationals Entitled To The Same Constitutional Rights As Citizens?, David Cole

Georgetown Law Faculty Publications and Other Works

Are foreign nationals entitled only to reduced rights and freedoms? The difficulty of the question is reflected in the deeply ambivalent approach of the Supreme Court, an ambivalence matched only by the alternately xenophobic and xenophilic attitude of the American public toward immigrants. On the one hand, the Court has insisted for more than a century that foreign nationals living among us are "persons" within the meaning of the Constitution, and are protected by those rights that the Constitution does not expressly reserve to citizens. Because the Constitution expressly limits to citizens only the rights to vote and to run …

Assessing Legislative Restrictions On Constitutional Rights: The Russian Constitutional Court And Article 55(3), Peter Krug

Oklahoma Law Review

No abstract provided.

From Unwritten To Written: Transformation In The British Common-Law Constitution, David Jenkins

Vanderbilt Journal of Transnational Law

This Article posits that the British Constitution is changing by incorporating written principles that restrain Parliament through judicial review. The Author asserts that this constitutional model has basis in the common law and the orthodox theories of Blackstone and Dicey. In addition, the "ultra vires" doctrine supports the model and provides a basis for judicial review of Parliament. As constitutions may accommodate written and unwritten elements of law, as well as various means of enforcement and change, the Author posits that constitutions are defined by how strongly they reflect underlying legal norms. With a shift in the rule of recognition …

Constitutional Legitimacy, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) f laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed …

Twenty-First Century Planning And The Constitution, Michael Lewyn

University of Colorado Law Review

No abstract provided.

How We Should Think About The Constitutional Status Of The Suspected Terrorist Detainees At Guantanamo Bay, Akash R. Desai

Vanderbilt Journal of Transnational Law

In the aftermath of the September 11th attacks, the United States has held suspected terrorist detainees captured during the military campaign in Afghanistan indefinitely at the United States military facility at Guantanamo Bay, Cuba. Among those currently detained are members of the al-Qaeda terrorist group and the Taliban. Currently the detainees are in the peculiar situation of generally being outside the scope of protections offered by both the international humanitarian law and the Unites States criminal law regimes.

This Note examines the extraterritorial scope of the United States Constitution as it applies to the suspected terrorist detainees at Guantanamo Bay. …

Incorporating Common Law Into The Constitution Of Canada: Egale V. Canada And The Status Of Marriage, Mark D. Walters

Osgoode Hall Law Journal

Recent decisions of the Supreme Court of Canada raise complicated questions about the relationship between the common law and the Constitution. In particular, a distinction may now be drawn between constitutional common law concepts that are "incorporated" by the Constitution and those that are "free-standing" or "text-emergent." The author explores the significance of these distinctions by examining the argument, accepted in the recent case of EGALE V. Canada, that the reference to marriage in section 91(26) of the Constitution serves to incorporate the common law definition of marriage into the Constitution, thus preventing federal or provincial legislation from legalizing same-sex …

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

Publications

No abstract provided.

Racial And Ethnic Profiling: Statutory Discretion, Constitutional Remedies, And Democratic Accountability, Sujit Choudhry, Kent Roach

Osgoode Hall Law Journal

Given the prominence of the issue of racial, ethnic, and religious profiling in the public debate about terrorism, it is significant that Canada's two legislative responses to September 11 - the Anti-terrorism Act and the proposed Public Safety Act - are silent on the issue, neither explicitly authorizing profiling nor expressly banning it. In this article, we focus on the constitutional remedies available for profiling in the face of these statutory silences, and the implication that the choice of remedies holds for both remedial efficacy and democratic accountability. Contrary to the position held by the majority of the Supreme Court …

The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley

Scholarly Publications

No abstract provided.

Architexture, Akhil Reed Amar

Indiana Law Journal

Addison C. Harris Lecture, March 20, 2002

The Right Of The People To Keep And Bear Arms Shall Not Be Litigated Away: Constitutional Implications Of Municipal Lawsuits Against The Gun Industry, William L. Mccoskey

Indiana Law Journal

No abstract provided.

Exchanging Constitutions: Constitutional Bricolage In Canada, David Schneiderman

Osgoode Hall Law Journal

Judicial recourse to constitutional law sources from abroad has been likened to the process of bricolage--coined by anthropologist Claude Lévi- Strauss, this refers to the "borrowing from materials readily at hand." Building on the idea of constitutional borrowing, this paper aims to take account of the role dominant political culture plays in constitutional interpretation, in particular, the values associated with economic globalization. If resort to comparative constitutional sources is on the rise, dominant political culture will likely have the effect of limiting the stock of tools available to judges. The author argues that, in an age of economic globalization, the …

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

American University Law Review

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …

Joint Teaching With A Colleague, For Just A Week Or Two, Richard H. Seamon, Stephen A. Spitz

Journal of Legal Education

No abstract provided.

Begging The Court's Pardon: Justice Denied For The Poorest Of The Poor, Daniel M. Cohen

St. Thomas Law Review

Astonishing as it may seem, if Benjamin Franklin were alive today, and he sought to collect alms for the poor on Fort Lauderdale Beach, he would, by force of law, find himself summarily expelled from the area. If Mr. Franklin then returned, seeking thus to heed the call of his conscience to help the downtrodden and oppressed, the great statesman and Founding Father of the United States would find himself placed under arrest. For the City of Fort Lauderdale, with the imprimatur of the Eleventh Circuit Court of Appeal, has deemed it Right and Good that soliciting a passerby for …

A Defendant's Right To Exculpatory Evidence: Does The Constitutional Duty To Disclose Exculpatory Evidence Extend To New Evidence Discovered Post-Conviction, Todd E. Jaworksy

St. Thomas Law Review

This note will first address Brady and the modifications made to the disclosure law by subsequent cases. Second, this note will explain the ethical obligations concerning a prosecutor's duty to disclose exculpatory evidence post-conviction as set out by the Model Rules of Professional Conduct. Third, this note will critically examine various case law in which the constitutional duty to disclose is seemingly extended to encompass post-conviction, newly discovered exculpatory evidence in the hands of the prosecutor. Finally, this note will conclude with an analysis and opinion of the disclosure law, discussing why the constitutional duty should be extended post-conviction.

Drug Exceptionalism, Erik Luna

Villanova Law Review (1956 - )

No abstract provided.

Prior Restraint In Wartime, Paul E. Salamanca

Law Faculty Popular Media

In this article for Bench & Bar Magazine (the Kentucky Bar Association's magazine), Professor Paul E. Salamanca discusses the First Amendment during times of war or conflict.

Is The Renquist Court An "Activist" Court? The Commerce Clause Cases, Randy E. Barnett

University of Colorado Law Review

No abstract provided.

What To Do With Bin Laden And Al Qaeda Terrorists?: A Qualified Defense Of Military Commissions And United States Policy On Detainees At Guantanamo Bay Naval Base, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission.

The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly …

Constitutional Classifications And The "Gay Gene", Susan J. Becker

Law Faculty Articles and Essays

In this essay the author discusses the use of genetic information to classify individuals for purposes of the law, and more specifically, the impact of the so-called “gay gene” on legal classifications.

Bad Women Deserve Equal Protection: A Look At The Constitutionality Of The Florida Prostitution Statute, Patricia Padrino

St. Thomas Law Review

Laws against prostitution are antiquated and based primarily on moral considerations. While there is moral outcry against the proliferation of prostitution, prostitutes themselves are allowed to take the blame and suffer the punishment for its practice. Although prostitution is often referred to as a victimless crime, the criminalization of prostitution certainly victimizes prostitutes. Laws criminalizing prostitution in the United States do nothing to benefit society and everything to harm prostitutes themselves. One way to attack these laws in Florida is to show that they violate the equal protection rights guaranteed by the Constitution of the United States. By approaching the …

The Reliance On Federal Preemption Law By Managed Care Organizations And Group Plan Insurers To Create An Impenetrable Shield Against Patients' State Law Claims, Jack E. Karns

St. Thomas Law Review

No abstract provided.

Foreword: The Legal History Of The Great Sit-In Case Of Bell V. Maryland, William L. Reynolds

Faculty Scholarship

Reviews the environment and history of the 1960 Baltimore sit-in case that eventually made its way to the United States Supreme Court.