Constitutional Law Commons^™

Markedly Low: An Argument To Raise The Burden Of Proof For Patent False Marking, Caroline Ayres Teichner

Chicago-Kent Law Review

The Federal Circuit's liberal treatment of the patent false-marking statute, 35 U.S.C. § 292, has created a climate in which opportunistic qui tam plaintiffs facing a low burden of proof can recover potentially enormous sums of money under the statute with no showing of competitive injury. This note argues that the Federal Circuit erred by ruling that plaintiffs must prove the key element of false-marking claims—namely, intent to deceive the public—by a mere preponderance of the evidence, and further contends that the court should have adopted the clear and convincing standard instead. Support for this elevated burden of proof can …

Proposed Exactions, Timothy M. Mulvaney

Faculty Scholarship

In the abstract, the site-specific ability to issue conditional approvals offers local governments the flexible option of permitting a development proposal while simultaneously requiring the applicant to offset the project’s external impacts. However, the U.S. Supreme Court curtailed the exercise of this option in Nollan and Dolan by establishing a constitutional takings framework unique to exaction disputes. This exaction takings construct has challenged legal scholars on several fronts for the better part of the past two decades. For one, Nollan and Dolan place a far greater burden on the government in justifying exactions it attaches to a development approval than …

Reclaiming The Promise Of The Judicial Branch: Toward A More Meaningful Standard Of Judicial Review As Applied To New York Eminent Domain Law, Paula Franzese

Fordham Urban Law Journal

This Article asserts that the New York model of eminent domain and judicial review must be reworked to provide a meaningful balance between private property rights and concerns for public good. Part I sets forth current doctrine and procedure which New York agencies must follow when exercising the power of eminent domain. Part II explores how blight has become a "standardless standard" in New York. Part III examines New York courts' reluctance to overturn agency decisions and the potential for abuse that this creates. Part IV examines other jurisdictions which have imposed stricter standards when examining public use. Part V …

Gallenthin V. Kaur: A Comparative Analysis Of How The New Jersey And New York Courts Approach Judicial Review Of The Exercise Of Eminent Domain For Redevelopment, Ronald K. Chen

Fordham Urban Law Journal

This Article explores two explanations for why New Jersey and New York take different approaches to judicial review of exercises of eminent domain. Part I examines the approach of both states and their differing procedures for review of administrative agency determinations. Part II discusses how each states' courts and legislatures define "blight." Part III examines how New York's approach leaves municipal officials and redevelopers free to use the more flexible concept of "underutilization" as a proxy for "blight."

The Problem With Pretext, Lynn E. Blais

Fordham Urban Law Journal

This Article examines the problems with the Supreme Court's holding in Kelo v. City of New London that the concept of public use is expansive unless the government is asserting the public use as a "mere pretext" and the true purpose is private benefit. The author examines the level of scrutiny applied in such cases, the link between pretext and motive, and the tests applied to evaluate pretext challenges: the burden-shifting motives test, the sufficiency of the plan taste, and the benefits to the public test. The author concludes that pretext is an "unworkable mechanism" for evaluating public use cases.

Public Use In The Dirigiste Tradition: Private And Public Benefit In An Era Of Agglomeration, Steven J. Eagle

Fordham Urban Law Journal

Dirigisme is the "policy of state direction and control in economic and social matters. This Article examines dirigisme as it relates to state control of land use. It also analyzes the development of eminent domain law and the requirement that takings be for public use. The author argues that the New York Court of Appeals "subordinates constitutional protections for private property to centralized development," specifically examining the recent Goldstein and Kaur opinions. The Article also discusses the implications of condemnation for transfer for private redevelopment, including lack of transparency, secondary rent seeking, possibilities of corruption, and the inefficient use of …

The Use And Abuse Of Blight In Eminent Domain, Martin E. Gold, Lynne B. Sagalyn

Fordham Urban Law Journal

This Article examines the term "blight" and how it is used in eminent domain cases. Part I discusses the development of the term and how various states define it. Part II lays out a hierarchy which may be used to compare the private benefits on one hand and the public benefits on the other hand in redevelopment projects. In Part III, the Columbia University expansion in Manhattanville is examined, at both the New York Appellate Division and Court of Appeals levels. Part IV discusses how forty-three states redefined blight after the Kelo case. Part V discusses how political and business …

Constitutionalizing Immigration Law On Its Own Path, Anne R. Traum

Scholarly Works

Courts should insist on heightened procedural protections in immigration adjudication. They should do so under the Fifth Amendment’s Due Process Clause rather than by importing Sixth Amendment protections from the criminal context. Traditional judicial oversight and the Due Process Clause provide a better basis than the Sixth Amendment to interpose heightened procedural protections in immigration proceedings, especially those involving removal for a serious criminal conviction. The Supreme Court’s immigration jurisprudence in recent years lends support for this approach. The Court has guarded the availability of judicial review of immigration decisions. It has affirmed that courts are the arbiters of constitutional …

Beware Of Wooden Nickels: The Paradox Of Florida's Legislative Overreaction In The Wake Of Kelo, Ann Marie Cavazos

Journal Publications

This article addresses Florida's reaction to the United States Supreme Court decision in Kelo v. City of New London. In Kelo, the Court provided a more expansive view of "the public use" of the Fifth Amendment Takings Clause to include taking property from one private owner and transferring it to a corporation or non-private citizen when the transfer is deemed by the lawmakers to be in the public good or for a public purpose. Florida, together with several other states, concluded that such eminent domain takings, while constitutionally permissible, offend the states' sense of fair play as it relates to …

Not In My Atlantic Yards: Examining Netroots’ Role In Eminent Domain Reform, Kate Klonick

Faculty Publications

(Excerpt)

Since the Supreme Court's decision in Kelo v. City of New London, which expanded the state's power to condemn private property and transfer it to other private owners under the Fifth Amendment, there have been significant calls to curb the power of eminent domain through statutory reform. Scholars and jurists in favor of eminent domain reform have asserted that legislation is needed to protect private property rights against the rising tide of state power, with many arguing that such reform should incorporate a public approval process into land use decisions. Those opposed to eminent-domain reform argue that empowering …

Is It Admissible?: Tips For Criminal Defense Attorneys On Assessing The Admissibility Of A Criminal Defendant's Statements, Part One, John H. Blume, Emily C. Paavola

Cornell Law Faculty Publications

This article addresses the Fifth Amendment issues to be considered when analyzing the admissibility of a criminal defendant's out-of-court statements.

Zoya's Standing Problem, Or, When Should The Constitution Follow The Flag?, Jeffrey Kahn

Michigan Law Review

Some federal courts have devised a new test of prudential standing that they use to dismiss suits filed by foreign plaintiffs alleging unlawful conduct by American officials abroad, even when these cases involve matters that may have nothing to do with foreign affairs, national security, or terrorism. Rather than decide the case on its merits or dismiss it on any number of legitimate grounds, the complaint is dismissed because the plaintiff lacks a "prior substantial connection" to the United States. I identify and critique this strange but proliferating test of standing. First, it is inconsistent with any theoretical view of …

State V. Burgess: A Limitation On A Defendant’S Right To Remain Innocent, Elizabeth Lahey

The University of New Hampshire Law Review

[Excerpt] “This note will explore the current state of the privilege against self-incrimination, particularly in regard to whether it works to bar negative inferences from being drawn from a defendant’s silence during sentencing in order to determine his remorse for the crime of which he has been convicted. I will focus primarily on the issue in the context of the recent New Hampshire case State v. Burgess. In that case, the court recognized the application of the privilege at sentencing, but nonetheless carved out a unique exception which made negative inferences permissible at sentencing when the defendant has admitted to …

Constitutional Expectations, Richard A. Primus

Articles

The inauguration of Barack Obama was marred by one of the smallest constitutional crises in American history. As we all remember, the President did not quite recite his oath as it appears in the Constitution. The error bothered enough people that the White House redid the ceremony a day later, taking care to get the constitutional text exactly right. Or that, at least, is what everyone thinks happened. What actually happened is more interesting. The second time through, the President again departed from the Constitution's text. But the second time, nobody minded. Or even noticed. In that unremarked feature of …

Supreme Neglect Of Text And History, William Michael Treanor

Michigan Law Review

Since his classic book Takings appeared in 1985, Richard Epstein's ideas have profoundly shaped debate about the Fifth Amendment's Takings Clause to a degree that no other scholar can even begin to approach. His broad, original, and stunningly ambitious reading of the clause has powerfully influenced thinking in academia, in the judiciary, and in the political arena. The firestorm of controvery that followed the Supreme Court's recent decision in Kelo - in which the Supreme Court upheld the constitutionality of a municipal urban renewal plan that displaced long-time homeowners and conveyed their land to developers - is in critical part …

An Originalist Defense Of Substantive Due Process: Magna Carta, Higher-Law Constitutionalism, And The Fifth Amendment, Frederick Mark Gedicks

Faculty Scholarship

A longstanding scholarly consensus holds that the Due Process Clause of the FifthAmendment protects only rights to legal process. Both this consensus and the occasional challenges to it have generally overlooked the interpretive significance of the classical natural law tradition that made substantive due process textually coherent, andthe emergence of public-meaning originalism as the dominant approach to constitutional interpretation. This Article fills those gaps.

One widely shared understanding of the Due Process Clause in the late eighteenth century encompassed judicial recognition of unenumerated substantive rights as a limit on congressional power. This concept of substantive due process originated in Sir …

Panel: Restrictions On Freedom Of Association Through Material Support Prohibitions And Visa Denials, David Cole

Georgetown Law Faculty Publications and Other Works

In the 1950s, we were afraid of communism. We were afraid, in particular, of the Soviet Union, the world's second greatest superpower, which was armed with masses of nuclear warheads aimed at all our largest cities. As a result, we fought the Cold War, engaged in espionage, proxy wars, and an arms race. We also took aggressive preventive measures at home. The principal preventive measure of that period was guilt by association. We made it a crime to be a member of the Communist Party, and we created a whole administrative scheme to implement and enforce this notion of guilt …

Take-Ings, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

The word property had many meanings in 1789, as it does today, and a critical aspect of the ongoing debate about the meaning of the Fifth Amendment's Takings Clause has centered on how the word should be read in the context of the Clause. Property has been read by Professor Thomas Merrill to refer to "ownership" interests, by Richard Epstein in terms of a broad Blackstonian conception of the individual control of the possession, use, and disposition of resources, by Benjamin Barros as reflective of constructions through individual expectations and state law, and by the author as physical control of …

Constitutional Limitations On The Ability Of States To Rehabilitate Their Failed Electric Utility Restructuring Plans, James M. Van Nostrand

Seattle University Law Review

This Article will review the constitutional limitations that come into play when a state seeks to rehabilitate its failed electric utility restructuring plan. Under the Constitution, utilities are entitled to earn a reasonable return on the assets devoted to public service. A situation in which retail rates are frozen may result in denial of a compensatory return if the electric utility is incurring higher costs to generate or procure its power supply. This is the traditional "takings" argument based on the Fifth Amendment to the Constitution, as applied to the states under the Fourteenth Amendment. Apart from this commonly asserted …

Historical Evolution And Future Of Natural Resources Law And Policy: The Beginning Of An Argument And Some Modest Predictions, Sally K. Fairfax, Helen Ingram, Leigh Raymond

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

8 pages.

Includes bibliographical references

"Sally Fairfax, UC-Berkeley, Helen Ingram, UC-Irvine, and Leigh Raymond, Purdue University" -- Agenda

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

The Meaning Of Life (Or Limb): An Originalist Proposal For Double Jeopardy Reform, Justin W. Curtin

University of Richmond Law Review

No abstract provided.

Proximate Cause In Constitutional Torts: Holding Interrogators Liable For Fifth Amendment Violations At Trial, Joel Flaxman

Michigan Law Review

This Note argues for the approach taken by the Sixth Circuit in McKinley: a proper understanding of the Fifth Amendment requires holding that an officer who coerces a confession that is used at trial to convict a defendant in violation of the right against self-incrimination should face liability for the harm of conviction and imprisonment. Part I examines how the Supreme Court and the circuits have applied the concept of common law proximate causation to constitutional torts and argues that lower courts are wrong to blindly adopt common law rules without reference to the constitutional rights at stake. It …

A Warning To States — Accepting This Invitation May Be Hazardous To Your Health (Safety, And Public Welfare): An Analysis Of Post-Kelo, Joshua Ulan Galperin

Elisabeth Haub School of Law Faculty Publications

Focusing on Delaware, this article will argue that the United States Supreme Court's decision in Kelo v. New London gave state legislatures an open invitation to shape their public use frameworks, but their responses must be measured and well-reasoned because the consequences of reactionary legislation may put a stranglehold on state and local governments trying to exercise eminent domain for unanimously accepted public uses. Part I will trace the most pertinent federal jurisprudence through Kelo. Part II will survey Delaware’s public use jurisprudence. Part III will introduce the Delaware General Assembly’s legislative response to Kelo. Part IV will serve as …

Separate And Unequal: Federal Tough-On-Guns Program Targets Minority Communities For Selective Enforcement, Bonita R. Gardner

Michigan Journal of Race and Law

This Article examines the Project Safe Neighborhoods program and considers whether its disproportionate application in urban, majority- African American cities (large and small) violates the guarantee of equal protection under the law. This Article will start with a description of the program and how it operates-the limited application to street-level criminal activity in predominately African American communities. Based on preliminary data showing that Project Safe Neighborhoods disproportionately impacts African Americans, the Article turns to an analysis of the applicable law. Most courts have analyzed Project Safe Neighborhoods' race-based challenges under selective prosecution case law, which requires a showing by the …

Does Due Process Have An Original Meaning? On Originalism, Due Process, Procedural Innovation...And Parking Tickets, Lawrence Rosenthal

Oklahoma Law Review

No abstract provided.

Planning Ahead: Consistency With A Comprehensive Land Use Plan Yields Consistent Results For Municipalities, Nathan Blackburn

Oklahoma Law Review

No abstract provided.

The Neglected Political Economy Of Eminent Domain, Nicole Stelle Garnett

Michigan Law Review

This Article challenges a foundational assumption about eminent domain- namely, that owners are systematically undercompensated because they receive only fair market value for their property. In fact, scholars may have overstated the undercompensation problem because they have focused on the compensation required by the Constitution, rather than on the actual mechanics of the eminent domain process. The Article examines three ways that "Takers" (i.e., nonjudicial actors in the eminent domain process) minimize undercompensation. First, Takers may avoid taking high subjective value properties. (By way of illustration, Professor Garnett discusses evidence that Chicago's freeways were rerouted in the 1950s to avoid …

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This …

Cable Operators' Fifth Amendment Claims Applied To Digital Must-Carry, Nissa Laughner, Justin Brown

Federal Communications Law Journal

This Article addresses the legal and policy implications of property rights in the digital must-carry issue. The Authors review must-carry regulations, present a traditional Fifth Amendment analysis of must-carry, address free speech implications of that property-based analysis, and show how property-based claims might influence future cable regulations and policies. The Authors conclude that while the Fifth Amendment claims are unlikely to succeed legally, they do contain significant rhetorical power that can help shift public policy in ways favorable to the cable industry.