Constitutional Law Commons^™

Did You Happen To Notice That Lawrence V. Texas Overruled West Coast Hotel V. Parrish?, John H. Ryskamp

ExpressO

The article points out, for the first time, the way in which Lawrence v. Texas overruled West Coast Hotel v. Parrish. Lawrence's overruling of West Coast is the first step in the demise of the "minimum scrutiny" regime, which the Court established in West Coast in 1937.

Buried Online: State Laws That Limit E-Commerce In Caskets, Jerry Ellig, Asheesh Agarwal

ExpressO

Consumers seeking to purchase caskets online could benefit from the Supreme Court’s 2005 decision that states cannot discriminate against interstate direct wine shipment. Federal courts have reached conflicting conclusions when asked whether state laws requiring casket sellers to be licensed funeral directors violate the U.S. Constitution’s Due Process Clause. In Powers v. Harris, the 10th Circuit even offered an unprecedented ruling that economic protectionism is a legitimate state interest that can justify otherwise unconstitutional policies. In Granholm v. Heald, however, the Supreme Court declared that discriminatory barriers to interstate wine shipment must be justified by a legitimate state interest, and …

The Bureaucratic Due Process Of Government Watch Lists, Peter M. Shane

ExpressO

Watch lists have become increasingly important tools for law enforcement and the protection of homeland security since the terrorist attacks of September 11, 2001,. These lists, however, pose dangers that innocent persons may be burdened either because they are included on such lists without justification or because they share a name with another individual who is appropriately listed. Our public law traditionally addresses this sort of risk through some redress-oriented scheme of due process that allows individuals alleging improper treatment to seek administrative and judicial relief from the error they assert in their particular case. Such an approach is inadequate …

The Constitutional Right To Make Medical Treatment Decisions: A Tale Of Two Doctrines, B. Jessie Hill

Faculty Publications

The Supreme Court has taken very different approaches to the question whether individuals have a right to make autonomous medical treatment choices, depending on the context. For example, in cases concerning the right to choose ¿partial-birth¿ abortion and the right to use medical marijuana, the Supreme Court reached radically different results, based on radically different reasoning.

More recent developments, including last Term's decision in Gonzales v. Carhart, have only highlighted the doctrinal confusion and the need for a resolution. In light of this pressing need, the goal of this Article is to view all of the constitutional cases touching on …

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, …

A Right To No Meaningful Review Under The Due Process Clause: The Aftermath Of Judicial Deference To The Federal Administrative Agencies, Ruqaiijah Yearby

Faculty Publications

The Due Process Clause of the Fifth Amendment has been perverted in the federal administrative system. For example, federal agencies, such as the U.S. Department of Health and Human Services (HHS), regularly deprive individuals of liberty and property with little to no review. In its regulation of the health care industry through the Medicare program, HHS often turns a blind eye to procedural Due Process protections, such as providing individuals an opportunity to challenge the deprivation of property at a hearing, even though the Constitution, the Administrative Procedure Act, and the Medicare Act grant these protections. The Medicare compliance hearing …

Takings Cases In The October 2004 Term (Symposium: The Seventeenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.

Sovereignty, Not Due Process: Personal Jurisdiction Over Nonresident, Alien Defendants, Austen L. Parrish

Articles by Maurer Faculty

The Due Process Clause with its focus on a defendant's liberty interest has become the key, if not only, limitation on a court's exercise of personal jurisdiction. This due process jurisdictional limitation is universally assumed to apply with equal force to alien defendants as to domestic defendants. With few exceptions, scholars do not distinguish between the two. Neither do the courts. Countless cases assume that foreigners have all the rights of United States citizens to object to extraterritorial assertions of personal jurisdiction.

But is this assumption sound? This Article explores the uncritical assumption that the same due process considerations apply …

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

An Other Christian Perspective On Lawrence V. Texas, Victor C. Romero

Faculty Scholarship

The so-called Religious Right's reaction to Lawrence v. Texas has been both powerful and negative, characterizing the case as an assault on the traditional conception of marriage and family life. This essay is an attempt to present a different Christian view. Modeled on the life and teachings of Jesus, this perspective celebrates the Lawrence case as consistent with God's call to social justice for the oppressed. It also outlines a Christian sexual ethic that lifts up genuine, monogamous, committed love between two individuals, whether of the same or opposite sex.

Lawrence And The Right To Metaprivacy, Jamal Greene

Faculty Scholarship

Americans take seriously the difference between acts and ideas. We remain mystified, for example, by the to-do about the cartoons depicting the Prophet Muhammad. The act-idea distinction is alive and well in our culture, and it remains largely intact in American law. No store owner puts up a sign saying, “You covet it, you bought it!” If you want to show your commitment to “manliness” by refusing to hire women, you’re out of luck. Don’t want to pay your taxes because you don’t like the Administration’s views? Move to Canada. We let the government erect at least rudimentary boundaries between …

Manson V. Brathwaite Revisited: Towards A New Rule Of Decision For Due Process Challenges To Eyewitness Identification Procedures, Timothy P. O'Toole, Giovanna Shay

Faculty Scholarship

Almost 30 years ago, in Manson v. Brathwaite--the Supreme Court set out a test for determining when due process requires suppression of an out-of-court identification produced by suggestive police procedures. The Manson Court rejected a per se exclusion rule in favor of a test focusing on whether an identification infected by suggestive procedures is nonetheless reliable when judged in the totality of the circumstances. The purpose of this Article is two-fold: to demonstrate that the Manson rule of decision fails to safeguard due process values, in part because it does not account for the intervening social science research, and to …

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

ExpressO

In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new …

Does The Constitution Apply To The Actions Of The United States Anti-Doping Agency?, Dionne L. Koller

All Faculty Scholarship

Since its formation in 2000, the United States Anti-Doping Agency (USADA) has aggressively pursued athletes who are believed to have used performance-enhancing substances and has aggressively prosecuted those who ultimately test positive. To many, this is a long overdue response to the growing problem of doping in sports. But to others, USADA's actions, and the federal government's support of these efforts, has sparked enormous controversy. This article examines USADA and its relationship to the federal government to determine whether USADA's actions could be constrained by the Constitution. While it is clear that USADA has very close ties to the federal …

U.S. Supreme Court Tort Reform: Limiting State Power To Articulate And Develop Its Own Tort Law–Defamation, Preemption, And Punitive Damages, Thomas C. Galligan

ExpressO

U.S. Supreme Court Tort Reform: Limiting State Power to Articulate and Develop Its Own Tort Law–Defamation, Preemption, and Punitive Damages analyzes and critiques the three primary areas in which the U.S. Supreme Court has found federal constitutional limits on a state’s power to articulate, develop, and apply its common law of torts. It is the first piece to consider all three areas together as an emerging body of jurisprudence which Professor Galligan calls U.S. Supreme Court tort reform. After setting forth a modest model of adjudication, the article applies that model to each of the three areas: defamation and related …

Civil And Criminal Recidivists: Extraterritoriality In Tort And Crime, Wayne A. Logan

Scholarly Publications

Historically, punitive damage awards and criminal sentences have shared the common justifications of punishment and deterrence, with the culpability of tortfeasors and criminals alike being enhanced as a result of repeat misconduct. The Supreme Court’s 2003 decision in State Farm v. Campbell suggests, however, that the parallels now in effect stop at the state line. The extraterritorial misconduct of tortfeasors is permitted to play a very limited role, if any, in the assessment of punitive damage awards. Meanwhile, such misconduct continues to be used by courts to significantly enhance the sentences of criminal defendants, an asymmetry accentuated by California v. …

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Vanderbilt Law Review

The Supreme Court decided five Miranda1 cases in 2003-2004, making this one of the most active fifteen-month periods for the law of self-incrimination since the controversial case was decided in 1966. In this Article, we consider three of those five cases-Chavez v. Martinez, Missouri v. Seibert and United States v. Patane-along with the blockbuster decision four years ago in Dickerson v. United States. in an attempt to decipher what, if anything, this remarkable level of activity teaches us about the direction of the Court's self-incrimination jurisprudence. In the end, while these cases, like those before them, may not entirely clarify …

Richard Sheppard Arnold: A Distinguished Jurist, A Loyal Colleague And A Good Friend, Gerald W. Heaney

University of Arkansas at Little Rock Law Review

No abstract provided.

Taking Miranda's Pulse, William T. Pizzi, Morris B. Hoffman

Publications

No abstract provided.

Constitutionally Excluded Confessions: Applying America's Lessons To A Democratic Iraq, Joseph Thai

Faculty Articles

Torture as a past and present tool of interrogation in Iraq threatens to undermine the country's struggle towards democracy. In confronting the substantial task of reforming interrogation practices and their public perception, Iraqis may draw valuable lessons from the United States' experience with the constitutional regulation of the admissibility of confessions in criminal cases. After reviewing the constitutional bases relied on by the U.S. Supreme Court to exclude confessions, this Article argues that writing Miranda-like rules into the Iraqi constitution would go far in alleviating the especially coercive environment of custodial interrogation in Iraq and restoring public confidence in the …

A Process Right Due? Examining Whether A Capital Defendant Has A Due Process Right To A Jury Selection Expert, Steven C. Serio

American University Law Review

No abstract provided.

The Use Of Prior Convictions After Apprendi, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry

ExpressO

Using the Supreme Court's decision last Term in Chavez v. Martinez as a launching pad, this article reveals and addresses fundamental tensions in constitutional interpretation, the law of interrogation, and civil rights litigation. First, this article highlights the importance of remedies to the definition of constitutional rights, which compels us to jettison the idea of prophylactic rules and accept Congress's role in constitutional interpretation. Armed with these insights, the article next considers the law of coercive interrogation. I explain why the privilege against self-incrimination is more than a trial right, and I redefine the central holding of Miranda to take …

Procedural Justice, Lawrence B. Solum

ExpressO

The real work of procedure is to guide conduct. It is sometimes said that the regulation of primary conduct is the work of the general and abstract norms of substantive law—clauses of the constitution, statutes, regulations, and common law rules of tort, property, and contract. But substance cannot effectively guide primary conduct without the aid of procedure. This is true because of three problems: (1) the problem of imperfect knowledge of law and fact, (2) the problem of incomplete specification of legal norms, and (3) the problem of partiality. The solution to these problems is particularization by a system of …

Proportionality Between Crimes, Offenses, And Punishments, James Headley

St. Thomas Law Review

Blackstone said of the Roman Empire, after it embraced unjust laws, "and then the Empire Fell. The United States Supreme Court embraces unjust laws and is inconsistent regarding substantive due process and proportionality in criminal cases, and substantive due process and proportionality in civil cases. The Due Process Clause and the Eighth Amendment's prohibition against cruel and unusual punishment require proportionality and fairness, meaning that the punishment must fit the crime, and that the penalty must be appropriate to the offense. Throughout a long history of jurisprudence, the Supreme Court has developed or embraced two varying theories of due process …

Due Process Denied: Judicial Coercion In The Plea Bargaining Process, Richard Klein

Scholarly Works

No abstract provided.

An Essay On The Spirit Of Liberty In The Fog Of War, Patrick L. Baude

Articles by Maurer Faculty

This article previews the Supreme Court's decision in the Guantánamo prisoners' cases, arguing they should be dismissed for failure of jurisdiction. The worst possible outcome for civil liberties in wartime would be a decision to adjudicate the rights of the prisoners under an anemic view of individual rights and judicial jurisdiction. It is evident that the Court will not apply a robust conception of due process to these cases, in light of the inevitable pressures of national security in wartime. But faint-hearted judicial review, the likely result, will foster the political illusion that business as normal for our constitutional system …

Courts Over Constitutions Revisited: Unwritten Constitutionalism In The States, Thomas B. Mcaffee, Nathan N. Frost, Rachel Beth Klein-Levine

Scholarly Works

A good deal of modern debate in constitutional law has concerned the appropriate methods for construing constitutional rights. But the focus on “individual rights” has sometimes prompted us to pay too little attention to the “right” deemed most fundamental by those who brought us the state and federal constitutions: the right of the people collectively to make determinations about how they should be governed. The author demonstrates that the key to understanding the development of the power of judicial review, both by the United States Supreme Court and by the highest courts of the states, is to perceive courts as …

Student Suspension For Possession Of Contraband In Student Vehicles: Correct Guidance From The Tenth Circuit, Larry Lewis

Oklahoma Law Review

No abstract provided.

Supreme Court 2002 Term - The Property Cases: Iolta, Qui Tam Actions, And Punitive Damages (Symposium: The Fifteenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.