Constitutional Law Commons^™

The Constitutionality Of Anti-Gang Legislation, Beth Bjerregaard

Campbell Law Review

The purpose of this article is to examine the constitutionality of anti-gang legislation within the context of the First Amendment. Specifically, the doctrines of vagueness and overbreadth and the related issue of freedom of association will be examined with respect to statutory provisions which criminalize gang participation.

Authorizing Interpretation, Pierre Schlag

Publications

No abstract provided.

Constitutional Law: Racial And Political Gerrymandering--Different Problems Require Different Solutions, Robert Redwine

Oklahoma Law Review

No abstract provided.

Mandating English Proficiency For College Instructors: States' Responses To "The Ta Problem", Kenneth King

Vanderbilt Journal of Transnational Law

This Note examines the background, provisions, effects, and constitutionality of state legislation mandating English proficiency assessment for college instructors. Such legislation responds to complaints about the comprehensibility of international instructors--particularly teaching assistants--at U.S. colleges and universities. U.S. universities employ large numbers of international instructors in scientific, technical, and business fields. Such employment is only one aspect of a broader U.S. importation of scientific and technical talent. This Note first considers the background and legitimacy of complaints about international instructors, and then examines the background and details of specific state provisions. It discusses the statutes' effects and particular concerns they raise, …

Private Religious Choice In German And American Constitutional Law: Government Funding And Government Religious Speech, Ingrid B. Wuerth

Vanderbilt Journal of Transnational Law

We will never face Germany's specific problems of religion and government, arising as they do from its particular history. The sharply contested religion cases from Germany in the late 1990s do, however, point to problems with our growing reliance on private religious choice analysis that demand our attention in both government funding and speech cases. To understand the problems of funding religious groups in neutral programs, we must back up and ask the foundational question: what goals may the government pursue with its funding? The broader those goals are defined, the greater the potential distortion of private religious choice, through …

Cases Versus Theory, Richard B. Collins

Publications

No abstract provided.

Judicial Supremacy And The Settlement Function, Robert F. Nagel

Publications

No abstract provided.

Introduction: Symposium On Constitutional Elitism, Robert F. Nagel

Publications

No abstract provided.

The Federal System As Bill Of Rights: Original Understandings, Modern Misreadings, Thomas B. Mcaffee

Villanova Law Review (1956 - )

No abstract provided.

Constitutional Conflicts: The Perils And Rewards Of Pioneering In The Law School Classroom, Derrick Bell

Seattle University Law Review

The challenge in teaching Constitutional Law is to teach the doctrine while puncturing the myths. It is not an easy task. Americans treat the Constitution as a hallowed document created by men so divinely inspired that the document they produced in 1787 has been amended less than three dozen times. They might add that because of a number of factors, including those amendments, there are now only about 300 operative words in the Constitution, and that most litigation has centered about the meaning of a dozen or so terms: "due process," "cruel and unusual punishment," "commerce," "free exercise," "commander- in-chief," …

A Bill Of Rights For The United Kingdom: From London To Strasbourg By The Northwest Passage?, Stephen Sedley

Osgoode Hall Law Journal

In anticipation of the United Kingdom's patriation of the European Convention on Human Rights, the author explores the possible impact that a Bill of Rights will have on the U.K. system of justice from a European and U.K. perspective. The author argues that, from a European perspective, the U.K. has an established history of yielding to supra-national law given its membership in the European Union. However, from a U.K. perspective, this will present new challenges, as the constitutionality of domestic legislation is subject to increased judicial scrutiny in ensuring conformance with European Convention obligations. The author argues that the pressures …

Diversity: The Red Herring Of Equal Protection, Sharon E. Rush

UF Law Faculty Publications

Couching the constitutional inquiry in cases like Bakke and VMI in the context of integration also puts in perspective the diversity justification. Affirmative action policies are constitutional because they integrate state programs. Integration on the basis of race and sex also diversifies state programs. In contrast, attempts to justify sex-segregation in state programs by arguing the policy promotes diversity is irrelevant to an equal protection analysis. Voluntarily created all-female schools should be constitutional because they promote the equal citizenship of women without damaging the equal citizenship stature of men. This is true for voluntarily race-segregated programs for minorities; as well. …

The Draw And Drawbacks Of Religious Enclaves In A Constitutional Democracy: Hasidic Public Schools In Kiryas Joel, Judith Lynn Failer

Indiana Law Journal

Symposium: Law and Civil Society

The Language Question In A Rainbow Nation: The South African Experience, Albie L. Sachs

Dalhousie Law Journal

In this, the twenty-second annual Horace E. Read Memorial Lecture, Mr. Justice Albie Sachs reviews the efforts to resolve problems of multilingualism in the new Constitution of South Africa. Writing from experience in the constitution-making process, he reflects on the reality of eleven different languages in South Africa. He discusses the consequent problems of legislative strategy and linguistic rights and the appropriate balance amongst language rights, policy and practice.

Conservatives, Liberals, Romantics: The Persistent Quest For Certainty In Constitutional Interpretation, Frederick M. Gedicks

Vanderbilt Law Review

From the time that Robert Bork issued his first attack on the Warren Court, originalism has belonged to political conservatives. This interpretive theory, which holds that the understanding of the Constitution at the time it was drafted and ratified controls its contemporary meaning, has been regularly utilized by conservative judges and politicians over the last two decades to question the legitimacy of various (mostly liberal) Supreme Court decisions. Given the liberal tilt of the legal academy, it is not suprising that advocates of originalism constitute a minority of constitutional scholars.

Recently, a prominent constitutional theorist with unmistakably liberal credentials announced …

All The Supreme Court Really Needs To Know It Learned From The Warren Court, Suzanna Sherry

Vanderbilt Law Review

It is accepted wisdom among constitutional law scholars that the Supreme Court is now considerably more conservative than it was during the tenure of Chief Justice Earl Warren. In this Article, I hope to suggest that the conventional wisdom is at least partly wrong. In Part I, I suggest that many of the current Court's so-called conservative cases and doctrines are direct descendants of Warren Court cases and doctrines. Although my attribution of similarity is new, the description of the cases and doctrines themselves is entirely unoriginal. Indeed, the history of the two sets of cases-of the Warren Court and …

On The Merits: A Response To Professor Sherry, John C.P. Goldberg

Vanderbilt Law Review

Professor Sherry's Article has three parts. The first is doctrinal and undertakes to demonstrate that the above quoted wisdom is not only false, but patently so. It is apparent, this Part argues, that the current Court has not drifted toward the "right," but has steadfastly held to the principle of justice that animated the Warren Court. This is the principle of "formal neutrality," which generally holds that government may never distinguish among its citizens on the basis of race, creed, or color.

Professor Sherry's second project is to explain why constitutional scholars have failed to recognize this obvious consistency. Her …

Toward A Conceptual Framework For Assessing Police Power Commitment Legislation, Eric S. Janus

Faculty Scholarship

Recent litigation and scholarship have begun to focus on the substantive limits of the state's power to use civil commitment as a social control tool. Courts and commentators describe civil commitment as grounded on two powers of the state: the parens patriae interest and the police power. This Article seeks an analytical framework for defining the boundaries of police power commitments in which justification rests on the interests of the public rather than on the interests of the committed individual.

A Real World Perspective On Choice Of Law, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Jewish Legal Theory And American Constitutional Theory: Some Comparisons And Contrasts, Samuel J. Levine

Scholarly Works

In this article, Levine explores some of the ways in which Jewish law may shed light on issues in American constitutional theory. While acknowledging that there are fundamental differences between a religious legal system and a secular one, he attempts to show that certain conceptual similarities between American law and Jewish law allow for meaningful yet cautious comparison of the two systems. Part I provides a broad historical and analytical overview of interpretation in Jewish law. Part II of the Article offers a specific conceptual framework for comparing Jewish law with American law. Levine considers questions of flexibility in legal …

Salvaging The Communications Decency Act In The Wake Of Aclu V. Reno And Shea V. Reno, Rebecca J. Dessoffy

Cleveland State Law Review

Hundreds of Worldwide Web site providers blackened their pages for forty-eight hours to protest the enactment of the Communications Decency Act of 1996 ("CDA"). The CDA regulates the transmission of sexually explicit material, both obscene and indecent, over the Internet. The CDA protesters claimed the law, designed to protect children, impermissibly infringes on adults' First Amendment rights to send and receive sexually explicit material. This note begins by exploring the challenged provisions of the CDA and the positions of those parties who opposed the CDA in the federal district court declaratory judgment actions. Next, the note examines applicable case precedent …

Restitution Regimes In Post-Communist Eastern Europe: A Legal Analysis, Sophia Von Rundstedt

LLM Theses and Essays

When the Communist regimes in Central and Eastern Europe collapsed at the end of the last decade, the opposition, which had been united in their goal to defeat Communism, quickly disintegrated into a variety of factions. One of their tasks was to decide on enacting a constitution, in order to stabilize and entrench the new democratic institutions. Apart from establishing the legal framework for democracy, politicians had to develop strategies to convert the state-run economy into a free-market economy. Such a transition required as a first step the privatization of state property. Legal reform of property rights raises the question: …

Constitutional Aspects Of Physician-Assisted Suicide After Lee V. Oregon, Simon Canick

Faculty Scholarship

On November 8, 1994, Oregon voters narrowly passed the highly controversial Death with Dignity Act (Measure 16), which marked the first time that physician-assisted suicide was explicitly legalized anywhere in the world. In Lee v. Oregon, a group of physicians, several terminally ill persons, a residential care facility, and individual operators of residential care facilities sought to enjoin enforcement of the new law, claiming various constitutional infirmities. The U.S. District Court for the District of Oregon enjoined enforcement of the law, acknowledging that it raised important constitutional issues including possible violations of the Equal Protection and Due Process Clauses of …

Ex Post Facto Laws: Supreme Court New York County People V. Griffin (Decided December 5, 1996

Touro Law Review

No abstract provided.

Introduction, Paul F. Campos

Publications

No abstract provided.

Integrity And Universality: A Comment On Dworkin's Freedom's Law, Robin West

Georgetown Law Faculty Publications and Other Works

Ronald Dworkin has done more than any other constitutional lawyer, past or present, to impress upon us the importance of  integrity to constitutional law, and hence to our shared public life. Far from being merely a private virtue, Dworkin has shown that integrity imposes constraints upon and provides guidance to the work of judges in constitutional cases: Every constitutional case that comes before a court must be decided by recourse to the same moral principles that have dictated results in relevant similar cases in the past. Any group or individual challenging the constitutionality of legislation which adversely affects his or …

The Unconstitutionality Of State And Local Enactments In The United States Restricting Business Ties With Burma (Myanmar), David Schmahmann, James Finch

Vanderbilt Journal of Transnational Law

As a punitive measure against the military regime in Burma, state and municipal governments in the United States have adopted laws penalizing firms that conduct business in that nation. This Article analyzes the validity of these statutes and ordinances under various provisions of the U.S. Constitution.

After introducing the nature of this development and the constitutional issues raised, Part II of this Article proceeds to examine the character of the local enactments and the political backdrop which lead to their adoption. In Part II, the Authors analyze four federal constitutional issues surrounding the local legislation: implied preemption by federal legislation, …

Preface, Laurelyn E. Douglas

Vanderbilt Journal of Transnational Law

The symposium, HONG KONG'S REINTEGRATION INTO THE PEOPLE'S REPUBLIC OF CHINA: CONSTITUTIONAL ISSUES, POLICY APPROACHES & HUMAN RIGHTS CONCERNS, AND ECONOMIC & LEGAL IMPLICATIONS, was held at the Vanderbilt University School of Law on March 28-29. 1997. Featuring presentations by diverse speakers from a variety of places and perspectives, the symposium addressed a broad range of issues. Topics ranged from comparative constitutional law to human rights and practical business concerns. While differences emerged, it was clear that fully understanding any one area requires knowledge of the others: the viability of markets may well depend upon the validity of documents proclaiming …

Anticipating Hong Kong's Constitution From A U.S. Legal Perspective, John M. Rogers

Vanderbilt Journal of Transnational Law

This Article explores the possible nature of Hong Kong's Constitution after July, 1997, and discusses alternative ways of interpreting and enforcing the constitution. The author first proposes three definitions for the word "constitution'" (1) how political power is actually "constituted," (2) a written document and (3) a referent for disputes. The author then explains Hong Kong's unusual constitutional status where Hong Kong will be governed under a written constitution the Basic Law. and at the same time, many aspects of the Basic Law will be "guaranteed" by an international agreement, the Joint Declaration. The author proceeds to evaluate the means …

Off The Precipice: Massachusetts Expands Its Foreign Policy Expedition From Burma To Indonesia, David R. Schmahmann, James Finch, Tia Chapman

Vanderbilt Journal of Transnational Law

This Article considers the wisdom and constitutionality of a proposed Massachusetts law penalizing companies that do business with Indonesia. In the March 1997 issue of the Vanderbilt Journal of Transnational Law, two of the authors expressed concerns about the constitutionality of state and local restrictions on business ties with Burma (Myanmar). This Article applies a similar analysis to conclude that the proposed legislation is an unconstitutional violation of the Supremacy Clause and the Foreign Commerce Clause. The authors also argue that the federal government has clearly preempted action by Massachusetts: first by providing aid to Indonesia under the generalized system …